Expert Report On The California 2026 Billionaire Tax: Revenue, Economic, and Constitutional Analysis

This report summarizes key provisions of the California Billionaire Tax Act. It also answers some frequently asked questions

Why AI May Be Your Best Negotiation and Mediation Coach

This article explores the role of artificial intelligence (AI) tools as negotiation and mediation coaches.  Drawing on research from negotiation, mediation, and consumer behavior, the article explains why bots can sometimes coach more effectively than humans.  In this role, they offer on-demand support that can help users prepare strategically and reflect honestly.  This support is especially valuable when seeking help from a human would feel too risky or awkward. The article cautions against use of AI for roles requiring emotional intelligence, discretion, or legitimacy, such as negotiators, mediators, or arbitrators.  It distinguishes between AI as a thinking partner and AI as a decision-maker.  It warns about use of AI tools to replace humans in core dispute resolution roles, though they can significantly enhance human performance as coaches

Turning Risks of Cheating with AI into Opportunities for Better Teaching

Many law school faculty are concerned that students may misuse artificial intelligence (AI) tools to undermine their learning and violate academic integrity policies.  Although some students will inevitably cheat, faculty can reduce the risk – and improve student learning – by rethinking assignment design and classroom communication. This article frames the risk of AI-related cheating as an opportunity for pedagogical improvement.  It offers practical strategies to help faculty design assignments that enhance student learning, promote good decision-making, discourage inappropriate AI use, and foster responsible AI literacy.  It outlines approaches consistent with the ABA’s new requirement for formative assessment throughout the curriculum as well as the realities of AI in legal practice

Investigation Expenses

Misappropriating trade secrets is usually done in secret. After all, those taking another’s trade secret in violation of state and federal law rarely openly tout their misdeeds. As a result, trade secret owners do not always immediately realize that their trade secret has been misappropriated and must spend significant resources investigating whether misappropriation has occurred and, if so, by whom and to what extent.An important question frequently arising over the last several years but overlooked in the scholarly literature is whether a trade secret owner’s investigation expenses are recoverable as “actual loss” under state and federal trade secret laws. This article provides the first comprehensive analysis of the cases addressing this issue and shows that courts have diverged. Some courts permit trade secret owners to recover investigation expenses, while others have denied or significantly limited recovery of investigation expenses.This article argues that the best interpretation of the statutes permits recovery of investigation expenses. However, to guard against the risks of awarding these expenses, courts should emphasize and enforce the causation requirement and limit recovery to reasonable investigation expenses. This approach is consistent with the principles underlying the myriad theoretical foundations of trade secrecy and furthers important policy considerations benefitting trade secret owners and misappropriators

Correcting the Record: Responding to Some Legal Arguments About the 2026 Billionaire Tax Act

If adopted by California voters in November of 2026, the 2026 California Billionaire Tax Act (CBTA) would impose a one-time 5% tax on the net worth of California billionaires, payable in five annual installments of 1% over 5 years (plus a small deferral charge). Critics have raised several arguments suggesting that the Act would not bring in the expected $100 billion in projected revenues because, the critics say, key parts of the Act are unconstitutional and would be subject to legal challenge. In fact, the supposed new legal challenges critics identify are mostly just very old arguments that courts have rejected over and over, and in some cases have been rejecting for more than one hundred years.This short memo was revised on January 9, 2026.  The original version of this memo responded to arguments made by attorney Alex Spiro.  This updated letter responds to other arguments, including those made by the law firm Baker Botts

The Bankruptcy Judge and the Generalist Tradition

The prevailing academic consensus is that bankruptcy judges are specialists presiding over specialized courts. This Article contends that this description is incomplete and, in some respects, inaccurate. Drawing on scholarly models of judicial specialization and historical surveys of the field, this Article contends that bankruptcy judges reflect a hybrid design choice: procedural specialization combined with substantive generalism. This model delivers many of the observed benefits of judicial specialization (including efficiency and technical competence) while preserving the cross-pollination of ideas and other benefits associated with the generalist tradition of American judging. This Article also reflects on contemporary developments—most notably the rise of the “complex case panel” that attracts a disproportionate number of large public company reorganizations. This trend has resulted in a handful of bankruptcy judges serving as de facto reorganization specialists. In doing so, it has disrupted the generalist design of the bankruptcy courts by increasing case concentration and attendant risks, including tunnel vision. By recharacterizing the bankruptcy judges as generalists as well as specialists, this Article offers a fresh lens for evaluating decision makers in the field. It also contributes to the broader literature on judicial specialization. Previous accounts have emphasized that particular institutions exist along a continuum between true generalism and focused specialization. Through a focus on the bankruptcy field, this Article suggests that procedural and substantive expertise represent separate and potentially independent dimensions of specialization

Expert Report on Valuation of Controlling Shares of Publicly Traded Companies Under the California Billionaire Tax Act (CBTA)

This short memo addresses concerns that have been raised under the proposed California Billionaire Tax Act (CBTA or Act) about the valuation of voting or special control shares, particularly with regard to shares held in publicly traded companies. A misreading of the CBTA is circulating that claims that voting shares of all assets will be taxed in full regardless of their actual value. This is false, as shown by a straightforward reading about the provision relating to voting and special control shares in context

Toddlers, Investors, and Tax Policy

There is a continuing childcare crisis that worsens every year. Congress has historically used tax incentives aimed at parents and employers to try to alleviate the lack of affordable childcare. However, with private equity\u27s increasing investment in the childcare sector, this Article advocates for an entirely new approach: Congress should encourage more people to work in the childcare sector by enacting a tax benefit for the individual childcare service provider.Childcare is a broken market. The labor-intensive nature of the industry results in razor thin profit margins, and wages remain low due to entrenched racial and gender norms. There is also a cap on how much parents can afford to pay for childcare. Yet, private equity is continuing to grow its debt-financed investments in the childcare sector. These investors achieve high returns through strategies such as real estate sale leaseback transactions, management fees, cost cutting and tuition hikes. Unfortunately, private equity often leaves a trail of bankruptcies after extracting maximum value from the underlying businesses and leveraging them with debt. This Article provides a critical analysis of how private equity’s acquisition-driven investment in the childcare sector is not only exacerbating the existing childcare crisis by increasing costs and reducing supply but also perpetuating gender and racial inequalities.The federal tax code contains two childcare tax benefit provisions that are intended to make childcare more affordable for working parents, but neither had been adjusted for inflation in decades (although, they did get a boost from the One Big Beautiful Bill Act). There is also a tax credit available to employers who provide childcare for their employees. This Article is the first to examine how these tax benefits are primarily helping working parents afford the investor backed childcare chains. It offers a novel analysis of the intersection between tax policy and private equity investment in childcare, adding to the existing literature on federal childcare tax incentives.Against this backdrop of a childcare crisis and tax provisions that may be supporting the growth of investor-backed childcare, this Article proposes a transformative solution: the creation of a childcare service provider exclusion. This new tax provision would allow individual childcare workers to exclude from income any wages attributable to providing childcare. By attracting more workers to the childcare industry and increasing the availability of childcare, the proposed exclusion supports working parents and promotes gender and racial equality

Taxing Dynasties

The estate tax and the broader wealth-transfer-tax system are even more broken than is commonly understood. Over the past two decades, researchers and policy experts have identified a handful of key tactics that mega-rich families use to pass wealth from generation to generation without paying tax. These tax dodges are notorious enough to be known by their acronyms, such as the IDGT and the GRAT. Scholars and policymakers have proposed reforms to block these tactics, or at least to make them more difficult. In this Article, we present new analysis, backed by new empirical findings, to show that these proposed reforms would not suffice for restoring wealth-transfer taxes to their original purpose—curbing intergenerational transmission of vast dynastic wealth and power. We argue that this is because an obscure but key anti-abuse tool, the generation-skipping transfer tax (GST), has failed almost completely. Because of the GST’s poor design, and some changes in state law, even if the proposed reforms aimed at IDGT and GRAT techniques were to be enacted, the GST’s failures would continue to undermine the wealth-transfer-tax system. Consistent with this theory, we present new data showing that wealthy families have successfully stowed staggering sums outside the reach of existing wealth transfer taxes. We estimate that between eighty and ninety percent of the wealth that rich families have set aside for their heirs will likely never be subject to the estate tax. By our most conservative estimate, that represents at least $4.1 trillion, that is owned by trusts that should be taxed but that are now perpetually exempt from transfer taxes—a substantial fraction of the total wealth held by all U.S. families. One-third or more of all the wealth controlled by the top .1% of households may be held in these trusts. With U.S. inequality high and still rising, these data support an urgent case for reform. We distinguish arguments from commentators who favor subsidizing rather than taxing intergenerational transfers, on the basis that those arguments are only persuasive with respect to families of relatively modest means. For example, Louis Kaplow’s well-known rationale for tax-favoring gifts and bequests breaks down when the gifts comprise vast transfers of dynastic political power and social influence. Accordingly, we set out some key criteria for transfer-tax reforms to be successful, and we propose a new approach for reform that satisfies those criteria. Historical and economic analysis suggests that transfer taxes fail in part because they trigger large one-time tax bills at death. But spreading payments out over the period after the transfer incentivizes repeal or undermining of the transfer taxes before the revenues even arrive. We thus propose instead an annual withholding tax on trust-held wealth, in effect a down-payment against future transfer-tax liability, and detail several of its key design components. We argue that this structure both complements earlier reform proposals—making the combination of reforms politically feasible and sustainable—and also can by itself successfully address the full alphabet soup of estate-tax dodges, from IDGT to GST

FDA After Loper Bright

This Article illustrates that Loper Bright may empower the U.S. Food and Drug Administration in unexpected ways. Loper Bright, which overruled the Chevron decision from 1984, tells us that a court should determine the meaning of all statutory provisions for itself — rather than deferring to the views of the federal agencies that implement those provisions. This Article grapples with the effect of the decision at FDA — one of the most important federal agencies, affecting the life of every person in the United States and regulating about a quarter of all consumer spending in the country, i.e., over $4 trillion annually. It makes three novel and potentially surprising claims, as follows.First, the Chevron doctrine meant less to FDA than conventional wisdom supposes. Empirical studies of litigation during the Chevron years — one published by the author and one published by a different team — show that FDA often lost cases at “step one” of Chevron, after reviewing courts decided the agency’s statute clearly answered the question differently than the agency had. This Article also offers the first review of litigation against FDA in the decade before Chevron, finding that the agency generally prevailed in cases involving statutory interpretation even without Chevron in play. Indeed, with one possible exception, no case would have clearly come out differently after Chevron, i.e., none that FDA lost and that it unquestionably would have won after 1984.Second, if Loper Bright and the formalist principles ascendant in the judiciary are understood properly, FDA should now win many cases that it would have won previously on the basis of Chevron deference. But the reasoning will be different. In many of these instances, the agency was not really interpreting its statute. Instead, it was engaged in policymaking. If FDA policymaking was authorized by Congress, judicial review — even after Loper Bright — remains deferential. Thus, some territory that agency defenders fear was lost with elimination of the Chevron framework will be regained if the agency persuades courts of its statutory authority to make discretionary calls. Scouring FDA’s statute for evidence of this authorization has not been a priority in the past, but this Article shows that the search may be surprisingly fruitful.Finally, de novo review may yield new and surprising results, but not in the cases that people expect. The defeats should not stem from judicial interpretation of ambiguous statutory provisions as to which those courts would previously have deferred to FDA. Again, many of those agency actions should today be understood as policymaking. Instead, the surprises will come when courts review actual interpretations that have not been challenged previously. Some of FDA’s statutory interpretations are half a century old, or older, and experts in the field have simply internalized them, without realizing that federal judges coming to the issues cold will see things very differently. That said, regulated parties may decline to upset the apple cart. And the Court’s increasingly formalist Article III standing jurisprudence may limit the others who would seek to do so.Scholars and others writing in health law and policy were almost uniformly alarmed by the Loper Bright certiorari grant and have continued to express concern that the decision will hamstring FDA. These concerns were overblown. FDA may be surprisingly resilient. This Article is meant to illustrate how it could defend itself and also offer ideas for other agencies that face challenge in the new era