American Servicemembers\u27 Protection Act of 2002

On July 1, 2002, the Rome Statute of the International Criminal Court ( ICC ) entered into force, establishing the first permanent international criminal tribunal. Although seventy-six countries had ratified the Rome Statute by that date, the United States was not among them. Instead, Congress responded to the creation of the ICC by passing a bill sponsored by House Majority Whip Tom DeLay (R-Tex.) that Republican legislators had been trying to get through the House and Senate for several years. On August 2, 2002, the American Servicemembers\u27 Protection Act of 2002 ( ASPA ) became law. The Act was designed to prevent United States participation in the ICC and to discourage other members of the international community from participating in the Court or assisting it in any way

The Luxembourg Effect: Patent Boxes and the Limits of International Cooperation

This article uses patent boxes, which reduce taxes on income from patents and other IP assets, to illustrate the fact that the jurisprudence of the European Court of Justice has a longer reach than has previously been recognized. This article argues that, along with having effects within the European Union, the ECJ’s decisions can also have effects on countries outside of the EU. In the direct tax context, the ECJ’s jurisprudence has hampered the ability of both EU and non-EU countries to police international tax avoidance. In 2015, the Organisation for Economic Co-operation and Development (OECD) proposed restrictions on patent boxes that were designed to limit income-shifting opportunities. As this article points out, these restrictions are weaker than they could have been due to EU legal constraints. Although the majority of countries involved in the OECD’s work on patent boxes were not EU Member States, they were all constrained by the ECJ’s permissive definition of tax avoidance. This article argues that the tax jurisprudence of the ECJ placed downward pressure on international tax avoidance standards and that this in turn shows that countries both within and without the European Union are losing the ability to prevent international tax avoidance to the degree that would have been possible in the absence of the ECJ’s tax jurisprudence. This article refers to this downward pressure as the Luxembourg effect. This effect is even more important in the context of the United Kingdom’s “Brexit” vote to leave the European Union since it highlights that a vote to be free of EU law may not have the desired effect if even non-EU countries are subject to the consequences of the ECJ’s jurisprudence

The Hidden Limits of the Charitable Deduction: An Introduction to Hypersalience

Behavioral economics introduced the concept of salience to law and economics. In the area of tax policy, salience refers to the prominence of taxes in the minds of taxpayers. This article complicates the literature on salience and taxation by introducing the concept of “hypersalience,” which is in many ways the mirror image of hidden taxation. While a revenue-raising tax provision must be hidden for taxpayers to underestimate their tax bill, a revenue-reducing tax provision – such as a deduction, exclusion, or credit – must be more than fully salient for taxpayers to underestimate their tax bill. In other words, the provision itself must be salient, but the limits of that provision must be hidden, or low-salience. This article uses the charitable deduction to illustrate the concept of hypersalience. While the charitable deduction is extremely salient to many taxpayers, not all taxpayers who believe that they will benefit from the deduction are correct. In fact, even though many Americans are aware that donations are tax-deductible, fewer than 50% of taxpayers can take advantage of the charitable deduction. The concept of hypersalience is important for several reasons. First, it highlights the role of non-governmental actors in fostering taxpayer ignorance about the tax system. This article suggests that the hypersalience of the charitable deduction is at least partly due to marketing efforts by private third-party beneficiaries. Second, it complicates economic models, such as those of price elasticity of giving, and suggests that certain tax provisions may be more treasury efficient than previously thought. Third, it may lead to increased consumption of certain goods. This article concludes that, although hypersalience may mean that the government is able to induce greater behavioral distortions without losing revenue, the costs of this phenomenon outweigh its benefits. Because hypersalience is due to taxpayer misunderstanding and the actions of third-party beneficiaries acting in their own interest, this article proposes several possible avenues for curtailing this phenomenon

The Question of Spectrum: Technology, Management, and Regime Change

There is general agreement that the traditional command-and-control regulation of radio spectrum by the FCC (and NTIA) has failed. There is no general agreement on which regime should succeed it. Property rights advocates take Ronald Coase's advice that spectrum licenses should be sold off and traded in secondary markets, like any other assets. Commons advocates argue that new technologies cannot be accommodated by a licensing regime (either traditional or property rights) and that a commons regime leads to the most efficient means to deliver useful spectrum to the American public. This article reviews the scholarly history of this controversy, outlines the revolution of FCC thinking, and parses the question of property rights vs. commons into four distinct parts: new technology, spectrum uses, spectrum management, and the overarching legal regime. Advocates on both sides find much to agree about on the first three factors; the disagreement is focused on the choice of overarching regime to most efficiently and effectively make spectrum and its applications available to the American public. There are two feasible regime choices: a property rights regime and a mixed licensed/commons regime subject to regulation. The regime choice depends upon four factors: dispute resolution, transactions costs, tragedies of the commons and anticommons, and flexibility to changing technologies and demands. Each regime is described and analyzed against these four factors. With regard to pure transactions costs, commons may hold an advantage but it appears quite small. For all other factors, the property rights regime holds very substantial advantages relative to the mixed regime. I conclude that the choice comes down to markets vs. regulation as mechanism for allocating resources.

A National Broadband Plan for Our Future: A Customer-Centric Framework

Congress has recently charged the Federal Communications Commission to establish a National Broadband Plan. This paper argues that a customer-centric plan, which puts the customer in control of decision-making, will yield the best broadband result for the U.S. The Federal government must establish a market infrastructure that encourages competition, requires transparency of both network providers and application providers, and includes vigorous antitrust enforcement. Competition from wireless broadband is present now and will become far more prevalent shortly, on the basis of current and announced investment plans. Regulators must also make available far more licensed spectrum to ensure this competition is realized. Calls for regulation in the form of mandated unbundling and more unlicensed spectrum are regulatory cul-de-sacs with proven track records of failure. Calls for regulatory control of network provider practices (other than transparency), such as network neutrality, are misguided. Such decisions are best left to customers, who can very well decide for themselves which of the broadband providers offer terms that best suit the customer.Technology and Industry

Mobile Telephony: Economic and Social Impact

The ubiquitous cell phone is often portrayed as the scourge of civilized society: rude callers on streets, in malls and offices, disturbing those around them with loud talking, school kids constantly texting in class, drivers whose attention has wandered during a cell phone conversation causing accidents, “crackberry” addicts who check their e-mail during real-world conversations, the list goes on. Is this an invention whose result has been to make us all worse off, like Internet spam and phishing attacks? In this paper, I informally survey the rise and impact of cellular technology, both in the US and the world. I find that the reach and the speed of its worldwide diffusion has exceeded even that of the Internet, and certainly with far more reach and speed than the personal computer. Mobile’s economic and social impact has been unprecedented, especially in the developing world where it has been a boon to economic development. While many in the US focus on expanding the diffusion of the PC both domestically and worldwide, as well as expanding the availability of broadband connectivity, I argue that while PC-broadband architecture will continue to be important, the terminal device of choice for most people on this planet will be the mobile, accessing information services over a wireless connection. Mobile telephony is, I believe, the highest impact communications technology of the last 50 years, rivaled only by the Internet.

Spectrum Management: Property Rights, Markets, and The Commons

Gerald Faulhaber and David Farberconsider alternatives to the current licensing regime for spectrum, which appears to lead to substantial inefficiencies in spectrum allocation.Specifically, they examine two property rights regimes and a commons regime.Theynote that economists have favored a market-based regime while engineers have favored a commons-based regime to promote new technologies. Mr. Faulhaber and Mr. Farbershow that thereis aproperty rights market-based regime that unleashes the power of the market andthe power of the new technologies to efficiently allocate spectrum, and that is likely to meet our needs for the near-term future. This regime resolves the presumed dichotomy between the market-based and the commons-based views, so that both objectives can be realized.The authorsalso outline a transition processfor achieving the desired regime outcome that is a "win-win" for all stakeholders, and that could be politically feasible. The change to a property rights regime is likely to lower the cost of spectrum substantially, in many cases to zero.Mr. Faulhaber and Mr. Farberassert that a commons model and a market model can co-exist, at least until spectrum becomes truly scarce.

Innovation in the Wireless Ecosystem: A Customer-Centric Framework

The Federal Communications Commission’s Notice of Inquiry in GN 09-157 Fostering Innovation and Investment in the Wireless Communications Market is a significant event at an opportune moment. Wireless communications has already radically changed the way not only Americans but people the world over communicate with each other and access and share information, and there appears no end in sight to this fundamental shift in communication markets. Although the wireless communications phenomenon is global, the US has played and will continue to play a major role in the shaping of this market. At the start of a new US Administration and important changes in the FCC, it is most appropriate that this proceeding be launched.

CleanTX Analysis on the Smart Grid

The utility industry in the United States has an opportunity to revolutionize its electric grid system by utilizing emerging software, hardware and wireless technologies and renewable energy sources. As electricity generation in the U.S. increases by over 30% from today’s generation of 4,100 Terawatt hours per year to a production of 5,400 Terawatt hours per year by 2030, a new type of grid is necessary to ensure reliable and quality power. The projected U.S. population increase and economic growth will require a grid that can transmit and distribute significantly more power than it does today. Known as a Smart Grid, this system enables two- way transmission of electrons and information to create a demand-response system that will optimize electricity delivery to consumers. This paper outlines the issues with the current grid infrastructure, discusses the economic advantages of the Smart Grid for both consumers and utilities, and examines the emerging technologies that will enable cleaner, more efficient and cost- effective power transmission and consumption.IC2 Institut