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    Imperfect Insanity and Diminished Responsibility

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    Insanity’s status as an all-or-nothing excuse results in the disproportionate punishment of individuals whose mental disorders significantly impaired, but did not obliterate, their capacities for criminal responsibility. Prohibiting the trier of fact from considering impairment that does not meet the narrow definition of insanity contradicts commonly held intuitions about mental abnormality and gradations of responsibility. It results in systemic over-punishment, juror frustration, and, at times, arbitrary verdicts as triers of fact attempt to better apportion liability to blameworthiness. This Article proposes a generic partial excuse of Diminished Responsibility from Mental Disability, to be asserted as an affirmative defense at the option of the defendant. The excuse would be expressed as a fourth verdict, in addition to the traditional forms of guilty, not guilty, and not guilty by reason of insanity. The partial excuse would recognize that the capabilities necessary for criminal responsibility exist along a spectrum. It would respond to the widespread belief that mental dysfunction may be so destructive of rationality that it merits a reduction in liability, even when not rising to the level of insanity. The verdict would render our justice system more capable of accurately expressing community condemnation and increase its legitimacy. Evidence suggests that jurors would thoughtfully apply a partial responsibility verdict and would experience greater confidence and satisfaction than in the current all-or-nothing system. Outside the United States, numerous countries recognize partial responsibility for mental impairments, demonstrating the feasibility and benefits of the partial excuse. Because a diminished responsibility verdict would mitigate a defendant’s sentence, its operation over time should reduce the mass incarceration and unjustified suffering of those with mental disabilities. The verdict could also connect defendants with treatment necessary for their clinical stability and well-being, as it has done in other countries. Over the decades, several prominent scholars have offered proposals for partial excuses for diminished responsibility. None gained legislative traction. This Article’s proposal differs from prior proposals in four key respects. First, it limits its purview to rationality and volitional impairments from mental disabilities, a traditionally recognized form of diminished blameworthiness. Second, to be workable and attractive to states, this proposal recommends that states draw definitions of partial responsibility from existing statutory frameworks, namely contemporary insanity and Guilty But Mentally Ill standards. The latter, present in about a dozen states, permit juries to find a defendant guilty but highlight their mental illness; however, these verdicts carry no necessary sentencing or treatment consequences. Deriving a partial responsibility standard from existing statutes should carry greater local legitimacy than wholly new language. Third, in light of the realities of mental disorder and its lived experience, this proposal does not advocate for withholding mitigation from defendants who contributed to their impairment through failure to comply with medical directives. Finally, the proposal draws upon foreign partial responsibility statutes to glean possible sentencing and treatment consequences that could accompany the verdict and respond to any public safety threat

    Who\u27s Afraid of Being WOKE? – Critical Theory as Awakening to Erascism and Other Injustices

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    Woke means “the belief there are systemic injustices in American society and the need to address them.” Ryan Newman, General Counsel to Governor of Florida. Stopping wokeness is to combat the belief there are systemic injustices in American society which, true to form, does sound a lot like the opposite of being awake, and that is to say, totally asleep. Alex Wagner. [B]y condemning the word “Woke” the establishment is not only attacking African American language. It also [is] disparaging the whole concept of being “awake” which I believe is one of the essential elements of moral and religious consciousness. Rev. Larry Reimer. Woke is “the new N-Word.” Shevrin Jone

    The Multitudinous Racial Harms Caused by Florida\u27s Stop WOKE and Anti-DEI Legislation

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    Since 2021, Florida has passed legislation that radically redefines how educators address race-related topics in the university classroom. Two laws in particular, HB 7 (Stop WOKE Act) and HB 999, which outlaws DEI programs at Florida universities, have led the charge. The goals of this Article are three-fold. First, to demonstrate how HB 7 and HB 999 have created a devasting and powerful educational force in Florida, a force that diminishes certain forms of racial discussion and inquiry in the college classroom. Second, to show the direct link between these laws and antebellum anti-literacy laws. The historical moments that separate enslavement-era anti-literacy laws and the passage of HB 7 and HB 999 are centuries apart. However, the goals are the same: To remove critical race narratives from the public education curriculum. Third, to detail the broad range of people, including educators and students, who are harmed and silenced by these laws. Race-related scholarship, which has been an integral part of race-focused courses, is on the chopping block as well. The range of harms caused by these laws is also explored. Once the pieces are connected, it is evident that HB 7 and HB 999 pose a mammoth threat to historical and contemporary knowledge about race. Part I provides an overview of the texts of HB 7 and HB 999. Part II focuses on the ways in which these laws marginalize and denigrate race scholarship. Part III examines how the Florida legislation diminishes the efforts of race scholars. Part IV shows how ignorance about U.S. race relations and race history creates danger for African Americans. Part V employs the Fifth Amendment’s Takings Clause and applies it to Florida’s Bright Futures Scholarship Program. This framework amplifies and crystalizes the vast and unremedied harms caused by HB 7 and HB 999

    U.S. Federal Income Taxation of U.S. Branches of Foreign Banks: Selected Issues and Perspectives

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    Economics & Economic Substance

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    The economic substance doctrine has no basis in economics. The fact that a transaction has an after-tax profit but not a pretax profit is not an indication of inefficient resource allocation. Nor does economic analysis suggest that denying tax benefits to arrangements lacking economic substance will reduce the deadweight loss of taxation. Because a pretax profit requirement has no economic foundation, it is irrelevant whether the calculation of pretax profit takes account of implicit taxes. Both the conventional definition of economic substance based on pretax profit and competing formulations that give less or no weight to pretax profit appear to be based on reverse engineering to isolate features that unappealing transactions in high-profile litigation have shared. All these formulations fail to answer the critical questions surrounding the economic substance doctrine: why lack of economic substance is intrinsically bad, and why intrinsically bad transactions are more likely to lack economic substance. Some supporters of the doctrine concede its lack of economic logic but defend it based on its practical effectiveness. This line of defense is generally based on anecdotes unconnected to the actual content of the doctrine and fails to explain why a pretax profit test should be a relatively effective means of targeting objectionable transactions

    What the BEPS?

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    Unprecedented attention to aggressive international tax planning has shaken the earth under the most powerful players in the world of international tax policy design. The media exposure of what Bloomberg’s calls “The Great Corporate Tax Dodge,” combined with the ever-growing discontent of civil society with the magnitude of contribution of the largest multinational enterprises to the society within which they operate, has recently forced the politicians to take action. Leaders of the strongest world economies demanded a revision of the rules of the international tax regime that would generate more revenues for their challenged coffers and would restore public trust in the system. In what is now commonly known as the Base Erosion and Profit Sharing (“BEPS”) project, the OECD has established three principles: (1) promotion of collaborative rather than competition based solutions; (2) take a holistic view of the challenges and their corresponding solutions rather than an ad hoc approach; and (3) permit the consideration of innovative solutions even when they conflict with the traditional premises of the current international tax regime. This Article reviews the progress of the BEPS project and its compatibility with the fundamental principles for reform set by the OECD with a view to influence the discourse and the outcome of the project. This Article focuses on the importance of the paradigm shift from the current emphasis on competitiveness and the perfection of competition to a collaborative international tax regime, demonstrating the desirability of such a shift and suggesting how the OECD should go about making that shift

    Mandatory Arbitration of International Tax Disputes: A Solution in Search of a Problem

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    Improving the resolution of international tax disputes has witnessed recent developments. The Organization of Economic Development and Cooperation (“OECD”) amended its Model Convention and Commentary to include mandatory and binding arbitration of tax disputes between two treaty countries that have been unsuccessful in resolving the disputes through negotiations between their tax authorities. The United States has amended its income tax treaties with Belgium, Canada, Germany and France to include mandatory and binding arbitration of unresolved tax disputes. These amendments are undoubtedly an important step toward improving the resolution of international tax disputes. Nevertheless, the Article argues that these amendments fail to achieve this goal. By their terms, the amendments enable countries to avoid the arbitration. There is a risk these amendments will damage previously existing resolution methods that have generally been successful. The arbitration, as currently proposed, can be used by taxpayers to achieve abusive and undesirable tax results. The Article argues that these amendments will not serve the two primary goals income tax treaties aim at achieving which are preventing double taxation as well as double nontaxation (i.e., escaping taxation). In Part one of the Article I present a brief overview of major contributions to the literature in this field. I set forth an evaluation methodology that focuses on two questions: First, does a mandatory arbitration provision fit in the overall network of tax treaties? Second, can the mandatory and binding arbitration provision actually resolve disputes? I argue that when we are able to answer positively to both questions, a recommendation to adopt such a provision will follow. In Part two I focus on the OECD proposal for mandatory and binding arbitration aimed at improving the resolution of international tax disputes. I conclude that under the current proposed structure, a negative answer to the above evaluation questions is more likely to be given than a positive one. I address certain policy issues related to the proposal, structural deficiencies embodied in it as well as possible negative consequences it may have. I conclude that the proposal should be reexamined. In Part three I examine the mandatory and binding arbitration provisions that were adopted recently in a few income tax treaties to which the United States is partner. I conclude that the United States expresses a position aimed at limiting the application of mandatory and binding arbitration. Part four is a summary of the work. I explain that I generally do not oppose the adoption of mandatory and binding arbitration. Nevertheless, I offer some considerations regarding the circumstances accompanying the application of the proposed provisions as well as their structure. I suggest that the proposals should be reexamined because they lack features that are major and crucial for successful mandatory and binding arbitration and because of the risk that they will negatively affect pre-existing dispute resolution mechanisms

    Taxing the Business of Sports

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    Baseball Arbitration to Resolve International Law Disputes: Hit or Miss?

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    This Article assesses a concrete proposal that may address some of the current backlash against international courts and tribunals: baseball arbitration, also known as final offer arbitration (FOA), where disputing parties each offer an answer to the dispute (their “final offer”) and the adjudicator’s task is strictly limited to picking one or the other answer (“hit or miss”). FOA preserves a crucial role for neutral, third-party adjudication but puts more responsibility on states to work out positive solutions themselves. When carefully calibrated, FOA can, at least for some types of disputes (especially numerical ones between two parties), enhance both efficiency (speed, reduced cost, and complexity) and accuracy (reasonable party offers versus tribunals splitting the difference between extreme demands). In addition, FOA should facilitate, rather than chill, settlement and long-term cooperation, and it puts states rather than tribunals in the driver’s seat. FOA can also reduce certain sovereignty costs (no giving reasons or setting precedential value for awards) and may unlock state consent to arbitration where traditionally it is lacking or heavily contested. Although FOA would seem to be particularly suited to settling international law disputes (where sovereignty costs and suspicion toward tribunals run high), surprisingly, FOA is virtually unknown to international lawyers. Ironically, it is also exactly where FOA is now being confirmed in treaty practice—to settle international tax disputes—that FOA shows its limits. In other settings where FOA is not currently practiced, such as certain trade or investment disputes, FOA has great potential. Neither “hit” nor “miss,” the choice should, in most cases, not be between opting into either reasoned arbitration or baseball arbitration. An optimal dispute resolution mechanism is likely a combination of both reasoned arbitration (on threshold issues) and FOA (on numerical questions)

    Taxing Litigation: Federal Tax Concerns of Personal Injury Plaintiffs and Their Lawyers

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    This Article addresses the federal tax concerns of personal injury plaintiffs and the lawyers who represent them, typically on a contingency-fee basis. It explains when plaintiffs’ recoveries are taxable for income and employment tax purposes and whether and how those recoveries are required to be reported by defendants to the IRS. It also discusses whether attorney’s fees and costs are deductible by plaintiffs. In addition to these tax planning and compliance issues, the Article also considers when tax evidence might be admissible. Plaintiffs and defendants often try to introduce tax evidence in an effort to increase or decrease, respectively, the amount of damages awarded. These attempts have been met with varying degrees of success, depending on the jurisdiction and context. The Article then addresses the personal tax issues of trial lawyers themselves. Structured attorney fee arrangements, whereby these lawyers attempt to defer tax on contingent fees, are discussed. The tax deductibility of litigation costs advanced by contingent fee lawyers to their clients is considered. Finally, the Article concludes with a discussion of how provisions of the 2017 Tax Act might affect trial lawyers


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    University of Florida Levin College of Law is based in United States
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