Bargaining and Ballplayers: The Practical Implications of Minor League Baseball\u27s CBA and What it Means for the NCAA

A commentary on the work place struggles of MiLB and how Collective Bargaining Agreement changed that. With this change how will it affect another athletic league, like the NCAA

Charles and Kathleen Moore and the Coming Tax Armageddon

The Supreme Court decided last term, against predictions, that U.S. shareholders could be taxed on the undistributed earnings of their foreign corporation. The Court expressly did not decide the “Armageddon question,” whether a wealth tax or mark-to-market tax would be constitutional. In the coming Armageddon, the Court needs to reverse the error in Pollock v. Farmers’ Loan & Trust Co., which said that the Constitution “prevent[s] an attack upon accumulated property by mere force of numbers.” That is exactly wrong. Apportionment of direct tax in fact was written to reach the wealth of the states using the labor of the population of a state to measure state wealth. The Founders, sitting as Justices in the early Supreme Court, held that if apportionment was not constructive, then the tax was therefore not a “direct tax” for which apportionment was required. The Pollock Court imposed its private, ideological conclusion on words it did not understand, ignorant of the history and rationale for the words. The Supreme Court retreated from its error in Pollock over the next 25 years with the legal fiction that all taxes that came before the Court were excise taxes. The Sixteenth Amendment, allowing an income tax, was in context the last nail in the coffin. Eisner v. Macomber resurrected Pollock from the dead with an inappropriately narrow definition of income, requiring that income be severed from capital. That defines a consumption tax, not an income tax. To consume bread from a loaf, one must slice, break or sever the bread from the loaf. But bread left in the loaf is fine savings, available for future consumption or for an emergency. “Income” includes both consumption and savings. When the appropriate case reaches the Supreme Court, the Court needs to reverse Pollock, and Macomber with it, to allow the Democracy to tax wealth as the Constitution was written to allow

The Association Between Fairness and Judicial Decision-Making: Evidence from Tax Law

Empirical literature on judicial decision-making has not yet considered the association between the normative value of fairness and judges’ decisions. Using a sample of tax cases at the Tax Court of Canada (2010–2019) containing 4,420 disputes, we investigate whether a litigant is significantly more likely to obtain a favorable outcome if there is a reference to fairness in the court judgment. Compared to disputes without a mention of fairness in the court judgment, disputes with any mention of fairness have a 51% greater likelihood of a successful outcome. Notably, even when a court judgment mentions fairness not clearly in favor of the taxpayer, taxpayers are still 28% more likely to obtain a successful outcome than taxpayers without a mention of fairness. Together, these findings show that fairness is strongly associated with judicial outcomes and suggest that fairness considerations may influence judges. Furthermore, analysis of the subsample with fairness references reveals that two dimensions of fairness significantly and positively affect the likelihood of a taxpayer winning a tax dispute (procedural fairness and interpretive fairness), and one dimension of fairness significantly and negatively affects the likelihood of a taxpayer winning a tax dispute (outcome fairness). These results show the contextual and normative importance of fairness

State-Created Environmental Dangers and Substantive Due Process

This Article focuses on litigation arising out of contaminated drinking water in Flint, Michigan, lead paint in New York City public housing, and harms to young people from the impacts of climate change. At the heart of each case is a claim that state officials violated the plaintiffs’ substantive due process rights by creating or enhancing an environmental danger and then deliberately failing to mitigate the risk to the plaintiffs. Although the plaintiffs characterize their claims in similar fashion, the three cases are not likely to enjoy the same success as they move through the courts. The scholarly commentary thus far does not offer satisfying answers to why plaintiffs might state a claim against officials for contaminated drinking water but not for an unstable climate. Although these cases involve novel applications of substantive due process doctrine, scholars have yet to examine exactly if and how they depart from other substantive due process cases. To fill this gap in the literature, this Article seeks to situate these cases in existing doctrine. In doing so, it exposes doctrinal confusion regarding which standards and tests apply to state-created danger claims. In addition, to provide courts with necessary guidance, this Article proposes a framework for state-created danger claims, limited by established common law principles and grounded in the important distinction between challenges to official misconduct and challenges to governmental law or policy

Should Tort Law Care About Police Officers?

Should police officers be able to file tort lawsuits for injuries that they suffer while on duty? In this article, written in response to Professor Sarah L. Swan\u27s The Plaintiff Police, Professors Ellen M. Bublick and Jane R. Bambauer contend that racial equality is not served by complete immunities for civilian misconduct any more than “law and order” is served by complete immunities for police officers who abuse their power. Rather, they argue that the common law has expanded, and should continue to expand, the civil legal rights of wrongfully injured people, including people wrongfully injured while employed as police officers. Beginning with a review of recent appellate opinions in suits filed by police, Bublick and Bambauer outline the types of actions that would be eliminated by a proposed ban on police officer injury suits. They next examine police suits through the popular, if inaccurate, frame that civilians can obtain virtually no civil remedies based on police misconduct. From the baseline of actual suits, Bublick and Bambauer argue that civil enforcement is valuable to hold both civilians and officers accountable for the unjustified harms that they cause to each other

Mandatory Infringement

In 2005, the Food and Drug Administration required the use of chlorofluorocarbon-free propellants in albuterol inhalers. But 3M held patents on the only U.S.-approved chlorofluorocarbon-free inhaler. The agency’s regulations forced multiple generic albuterol manufacturers to choose between infringing 3M’s patents or exiting the market. This state of affairs was lucrative for 3M, perhaps good for the environment, bad for competition, and terrible for patients faced with high costs for essential medical devices. This is an example of a general phenomenon: mandatory infringement. Intellectual property prohibits certain activities, but sometimes the government also mandates these very same activities. Such situations arise surprisingly frequently in fields including environmental protection, pharmaceutical labeling, information technology, and access to justice. The manifest injustice of regulatory law requiring what intellectual property law disallows has sparked vigorous debates over individual cases in all these fields. Yet there has been no unified treatment of how the law should address mandatory infringement. Courts and scholars have taken approaches that are scattershot, idiosyncratic, and even inconsistent with each other. The key to fixing mandatory infringement is understanding why it is a problem in the first place: competition. Mandatory infringement creates outsized market power due to an inverse relationship between the effect of regulations and intellectual property rights on competition. It further enables passing the buck between regulators and courts, encourages rent-seeking rather than innovation, and induces government offloading of licensing costs onto regulated entities that produces a principal–agent disconnect. These phenomena explain why regulators and courts applying antitrust or intellectual property laws have difficulties resolving mandatory infringement. Although they try hard to reach fair outcomes, and often succeed, the distinctive aspects of mandatory infringement and authorities’ failure to recognize them frequently have left unjustified market dominance intact. A new approach is required: a trans-substantive doctrine that excuses mandatory infringement, not tied to specific legal regimes but broadly encompassing matters of competitive markets and public welfare