Targeting Tax Avoidance Enablers

The Panama Papers, the Paradise Papers, and the Pandora Papers have exposed how tax advisors, lawyers, financial institutions, and other intermediaries have helped the world’s economic elites hold their wealth through corporations and trusts organized in tax havens. These professional enablers are frequently located in a country other than that of the relevant taxpayers. This means that the tax avoidance enablers are often out of the reach of the victim governments. How can a government counter the activities of professional enablers located in other countries? This has proven to be a formidable challenge. This Article proposes a novel solution: a new international reporting standard, referred to as Global Mandatory Disclosure Rules (GMDR), which will impose reporting obligations on intermediaries assisting taxpayers with designing and implementing cross-border tax schemes. This proposal builds on the legal mechanisms currently deployed in several countries. Mandatory disclosure rules (MDRs), which require that intermediaries report their clients’ tax schemes, were introduced in the United States in the 1980s. Since then, MDRs have been adopted in several countries as domestic measures targeting local tax avoidance enablers and their clients. In recent years, the European Union and the Organization for Economic Cooperation and Development have introduced multilateral MDRs that focus on certain crossborder arrangements. Drawing upon these reporting regimes, this Article proposes GMDR as a comprehensive standard. GMDR is a missing piece in the global tax transparency framework which could close gaps in other international tax reporting standards. This Article explains the need for GMDR, explores the relevant design options, and proposes an implementation strategy. As GMDR could be an indispensable tool in the international effort to curb cross-border tax abuse, this proposal deserves serious consideration

Carrie Menkel-Meadow

Carrie Menkel-Meadow at the Sixth Annual Celebration of Books, March 19, 2015.https://scholarship.law.uci.edu/celebration_of_books_2015_photos/1009/thumbnail.jp

Christopher Whytock

Christopher Whytock at the Annual Celebration of Books, March 27, 2023.https://scholarship.law.uci.edu/celebration_of_books_2022-2023_photos/1000/thumbnail.jp

Why Sovereigns Are Entitled to (Horizontal) Benefits of the International Rule of Law

A dozen years ago, Jeremy Waldron published an influential article arguing that sovereign states are not entitled to the benefits of the international rule of law. His conclusion follows from his assertions that the purpose of the rule of law is to protect individual liberty, and the purpose of international law is to protect individuals. This article critically responds to his position. International law is based on the notion that states are autonomous and equal members of the international society ordered through legal relations. The legal relations of the international community of states, I argue, constitute the horizontal dimension of the rule of law, which Waldron overlooked. Focusing on horizontal rule of law functions, I provide descriptive, theoretical, and normative reasons why states are, and should be, entitled to the benefits of the rule of law

Catherine Fisk & Ann Southworth

Catherine Fisk & Ann Southworth at the Sixth Annual Celebration of Books, March 19, 2015.https://scholarship.law.uci.edu/celebration_of_books_2015_photos/1007/thumbnail.jp

Katherine Porter

Katherine Porter at the Third Annual Celebration of Books, April 5, 2012.https://scholarship.law.uci.edu/celebration_of_books_2012_photos/1002/thumbnail.jp

R. Anthony Reese

R. Anthony Reese at the First Annual Celebration of Books, Spring 2010.https://scholarship.law.uci.edu/celebration_of_books_2010_photos/1001/thumbnail.jp

Hidden Resources

Vision is central to the human species’ evolution and success. This dependence on sight is reflected in the construction of property frameworks governing natural resources. When humans encounter natural resources they cannot see—hidden resources—they have difficulties imagining an appropriate property regime. As a result, they rely on existing two-dimensional property systems to govern natural resources, which are often three- or four-dimensional in nature. These hidden resources, invisible to the human eye, may be subsurface, distant, or not composed of a visible form. Examples of hidden resources include groundwater, minerals, petroleum, porous space, wind, migratory paths, deep oceans, viruses, and planets. This Article proposes that a lack of natural resource sight affects the ability to efficiently use, manage, and conserve resources. It further examines how revelation of a resource’s latent physical and visual traits results in efficient development and optimal law and policy, concluding that hidden resources should not be governed by the same property frameworks as visible property

“Protection for Every Class of Citizens”: The New York City Draft Riots of 1863, the Equal Protection Clause, and the Government’s Duty to Protect Civil Rights

This Article examines an important but little-noticed moment in the intellectual history of the Equal Protection Clause: the New York City draft riots of 1863. In mid-July of that year, New York was engulfed by a weeklong riot against the Union military draft, as mobs of predominantly working-class white men beat and murdered Black New Yorkers, looted and burned stores and government buildings, and battled the police in the streets. The scale and intensity of the violence foreshadowed the white supremacist terrorism that subsequently consumed the postwar South. In the wake of the draft riots, though, New York City embarked on a remarkable project of remediation, mobilizing a variety of legal processes as it prosecuted rioters, paid civil damages to riot victims, raised philanthropic funds to provide free legal aid, charged police officers with dereliction of duty, and published extensive volumes of witness testimony to build a record of the events. Those measures anticipated the wider legal efforts at racial redress that were made during Reconstruction, and they also resonate with urgent debates about civil rights protections, racial justice, and police accountability today. Crucially, moreover, as this remedial process unfolded in New York, a powerful discourse of equality took shape, and it sheds new light on the meaning of the Equal Protection Clause. In particular, it demonstrates that the idea of equal protection in 1863 included affirmative duties for the government to protect its people against harms caused by private parties, which stands in sharp contrast to the limitations on equal protection law set by the modern state action doctrine. Republican leaders in New York City, for example, promised to “protect” Black New Yorkers’ “full and equal right[s]” and “call[ed] upon the proper authorities to take immediate steps to afford them such protection,” while the Board of Police Commissioners charged one of its own officers, Sergeant Jones, with failing to provide “protection for every class of citizens[,] black or white, rich or poor,” during the draft riots. Sergeant Jones’s trial was then covered in the press under the front-page headline “Equal Protection Under the Law,” directly linking the affirmative duty to guarantee “protection for every class of citizens” with the “Equal Protection” vocabulary that would be written into the Fourteenth Amendment just over two years later. Rereading the Fourteenth Amendment in the context of the New York City draft riots, this Article therefore argues that the state action doctrine is an anachronism and that a much broader vision of equality, equal rights, and antidiscrimination law resides within the Equal Protection Clause