Lobbying by Brief: Unveiling the Dominance of Amicus Lobbying in the Development of Business Law

This Article uncovers the pervasive and significant impact of business law Amicus Lobbying, a strategic tactic whereby lobby groups have commandeered the amicus curiae filing process in state courts to shape business law according to their interests. The Article makes three primary contributions to the literature. First, it presents the only comprehensive dataset of amicus curiae filings in business law cases. This hand-collected dataset encompasses nearly all business law amicus curiae filings from 2005 to 2022 in the key jurisdictions of New York, California, Delaware, Texas, and Nevada. Second, it reveals a striking empirical finding: lobby groups account for 67% of all amicus curiae filings in the dataset, with a high rate of success in persuading courts to adopt their positions. Finally, the Article provides a normative assessment of Amicus Lobbying in business law and proposes policy recommendations designed to ensure a more balanced representation of stakeholder interests. By shedding light on this understudied phenomenon, this Article aims to stimulate critical discourse on the intersection of lobbying, judicial decision-making, and business law formation. It offers valuable insights for scholars, practitioners, and policymakers engaged in the ongoing debate over the appropriate role and influence of interest groups in shaping legal doctrine

Institutional Flexibility in Tax Law and Enforcement

This paper examines how governments can optimally audit to discourage tax avoidance. We assume that an accounting firm designs and promotes strategies for tax avoidance. This firm adapts the quality and diversity of these strategies in response to shifts in government policies. We investigate when it is more effective to approve some methods while cracking down on others, rather than targeting all tax-avoidance activities uniformly. We find that selectively enforcing against specific methods can be optimal. This approach not only reduces the quality but also limits the variety of tax avoidance activities in the market and positively impacts the government’s tax revenue collection. Our analysis provides practical insights, linking the costs of auditing with the interaction between enforcement, the quality of tax avoidance methods, and tax revenue outcomes

BALANCING ABORTION

Critics of Roe v. Wade and its progeny repeatedly contended that, in recognizing a fundamental right to choose an abortion, the Supreme Court ignored or significantly undervalued the states’ interests in regulating abortions. This Article’s examina- tion of the Court’s abortion jurisprudence during the Roe era, however, shows how it called for a meaningful balancing of the interests of both sides in ways that led the justices to uphold roughly as many abortion laws as they struck down between 1973 and 2020. In exploring the crucial role that the balancing of the interests of both the state and pregnant individuals played in the Roe constitutional regime, the Article contends that the Court deserves more credit than it received for attempt- ing, for decades, to accommodate the claimed interests of both sides while trying to find compromises on abortion-related questions that are deeply contested and controversial. The Arti- cle also examines why neither the antiabortion nor the pro- choice movement believed it advanced its political and legal pri- orities to emphasize and praise the fundamental role that the balancing of interests of both sides played in Roe and its prog- eny. A well-informed understanding of this crucial aspect of the Roe constitutional regime is essential because it provides a stark contrast to the one-sided and uncompromising weighing- of-interests approach followed by the five-justice majority in Dobbs v. Jackson Women’s Health Organization. In overturn- ing Roe, the Dobbs Court deemed the state’s claimed interests in regulating abortions to be constitutionally dispositive and the pregnant individual’s liberty and equality interests in choosing an abortion to be constitutionally irrelevant. In doing so, the Court did not avoid, as it apparently hoped, the need to balance interests; instead, Dobbs engaged in ex-ante or categor- ical balancing by reasoning that the state’s claimed interest in protecting fetal life is so important and so impacted by the de- cision to have an abortion that it requires that all future courts give the liberty and equality interests of pregnant individuals in not being forced to carry pregnancies to term against their will a constitutional value of precisely zero. Although the Dobbs Court may have believed that it was, in the name of judicial restraint, dispensing with the need to balance the interests of both sides, the Article explains why it is not possible to decide the constitutionality of abortion bans, such as the one at issue in Dobbs, without pitting the claimed interests of the state against those of pregnant individuals after assigning constitu- tional weight (even if it is only zero) to them

Connecticut

In general, the Connecticut commission is hostile to expansive definitions of mandatory subjects of bargaining, sometimes issuing decisions that are results-driven and an expression of a preference for the substance of the employer’s decision. There are a couple of distinctions between police and other units: The Commission is more likely to weigh safety on the side of bargaining for police than others. The Commission treats the requirement to bargain surveillance-based decision more expansively for non-police units than police-units. The Commission is more likely to find subcontracting of police work to an outside agency to be a mandatory subject of bargaining

Fintech and the False Promise of Techno-Solutionism

For about a decade, financial regulators have been grappling with the rise of fintech and the ways it disrupts financial regulation. But something is often lacking in these policy conversations. In a new draft article, I argue that financial regulators need to engage more critically with the “tech” aspects of fintech. In particular, they need to ask whether it’s even possible for technological innovations to address the deep-seated and complex problems that fintech’s proponents say they can solve

Corporate Law as Decolonization

After centuries of colonial subordination, Black and Brown former colonies are still fighting to achieve the fruits of decolonization. The traditional theory is that former colonies will emerge from the colonial period with the legal mandate and international recognition needed to chart their own futures. But, for those Black and Brown British colonies that achieved political independence, it became clear that, without economic strength to care for their societies, legal separation could not deliver on its promise of freedom from subordination. This Article argues that investments in corporate law innovations by some jurisdictions, such as Bermuda, the British Virgin Islands, and the Cayman Islands, have provided a pathway to postcolonial self-determination. These communities have generated immense wealth and autonomy for their populations in the postcolonial era by using strategies akin to those deployed by the State of Delaware. While former colonizers denigrate Bermuda, the Cayman Islands, and the British Virgin Islands as tax havens and corporate law imperialists, which must be aggressively governed to protect the tax base and financial sectors of “non-tax haven” countries, there is another side to this narrative: Offshore corporate law is freedom-promoting for some communities. This Article complicates the dominant perspective of corporate law imperialism and introduces a conceptualization of corporate law as decolonization to the legal and policy discourse on offshore financial centers

Rediscovered Masterpieces

Friday, October 11, 2024 | 8:30 PM | DeBartolo Performing Arts Center, Leighton Concert Hall The Notre Dame Symphony Orchestra will be performing Schubert, Elgar, and Mendelssohn at 8:30 pm this Friday (October 11) in the Leighton Concert Hall of the DeBartolo Performing Arts Center, with a chamber music reception beginning at 7:30 pm. There are not one but two current law students in the NDSO. Tickets are free for students. Sponsors: DeBartolo Performing Arts Center Notre Dame Music Department Notre Dame Symphony Orchestrahttps://scholarship.law.nd.edu/ndls_posters/1920/thumbnail.jp

Sourcing Derivatives: Time to Reverse the Rule?

In their excellent Tax Notes article on the application of withholding taxes on derivatives, Lorenz F. Haselberger and Michael B. Shulman write that: A taxpayer entering into a derivative may derive income of a kind that is different from the kind of income that would have been realized had the taxpayer instead acquired the underlying asset, resulting in different U.S. withholding tax treatment. For example, when a foreign taxpayer enters into a swap referencing an equity security or interest rate, amounts it receives that correspond to dividends or interest generally are characterized as periodic payments on a financial contract rather than as dividends or interest for federal income tax purposes. This characterization can result in different withholding treatment because swap payments generally are sourced to the jurisdiction of the recipient, whereas dividends and interest generally are sourced to the jurisdiction of the payer. . . . In some cases, Congress has enacted legislation to conform the withholding tax treatment of income from the underlying asset and the treatment of the corresponding income from a derivative referencing the underlying asset. For example, under section 871(m), enacted in 2010, the withholding treatment of dividend equivalent amounts payable or imputed with respect to certain U.S. equity derivatives generally conforms to the withholding treatment of dividends paid on the underlying physical equity security. In the absence of a provision like section 871(m), however, there is no overriding principle that would require withholding tax on derivative income simply because withholding would apply to income from the underlying asset. [Emphasis added.] My question is, why is there no such overriding principle