Legal Transitions and the Problem of Reliance

This Article analyzes the literature on legal transitions. The principal focus is taxation, but the analysis generalizes to other areas. I argue that the theoretical apparatus developed by scholars active in the legal transitions area suffers from significant conceptual shortcomings. These shortcomings include the unwarranted assimilation of legal to factual change, the naturalization of conventional arrangements, and the disregard of the distinction between making law and finding it. As a consequence, the recent literature offers an analysis that is unable either to explain actual transitions or to provide an adequate theory of how legal change should take place. In the end, the older view of legal transitions is more capable than the newer one of providing an adequate normative and positive framework for understanding legal transitions

The Tax Treatment of Advance Receipts

Under the present income tax, some advance receipts are neither taxable on receipt nor deductible on repayment, while others are taxable when received and deductible when repaid or paid for. From a purely theoretical perspective, it remains unclear why different sets of rules apply in different cases. For example, if the fact of unrestricted control over the payment compels the conclusion that it is income, then most advance receipts, including loan proceeds, should be included in income immediately. Conversely, if the presence of an offsetting liability compels the conclusion that the payment is not (yet) income, then most advance receipts, including amounts received for future services, should not be taxed unless and until they are secured to the taxpayer without obligation. This paper argues that confusion in this area stems from a misunderstanding of the role that the income concept plays and should play in guiding the proper rules for advance receipts, and from an inapposite application of consumption and wealth tax concepts in the income tax context. If practical questions of tax administration were not salient, advance payments under the income tax would be included as and when secured to the taxpayer without offsetting obligation, without regard to the time of receipt of the funds. By contrast, under a consumption tax the focus would be on the control and use of funds for personal or non-personal reasons. Control and use, however, do not play a significant role under the income tax. The actual rules under the income tax sometimes diverge from those that would apply under a theoretically correct income tax. In most cases, the divergences reflect an appropriate attempt to accommodate the effort to tax true income to the practicalities of tax administration. If it is unlikely the amounts will become true economic income, a general presumption of non-taxation on receipt and non-deduction on return is appropriate, subject to adjustment if the presumption turns out to be false. If it is likely the amounts will become true economic income, the opposite presumption may be appropriate, again subject to adjustment if proved incorrect. Intermediate cases present problems of judgment that must be addressed from the perspective of effective administration of the tax law

The Ambiguous Basis of Judicial Deference to Administrative Rules

Much of the commentary on the Supreme Court\u27s decision in Chevron U.S.A, Inc. v. Natural Resources Defense Council, Inc. has focused on the nature of power that agencies exercise when they promulgate rules that merit judicial deference under Chevron. Some scholars view Chevron as reading into statutes an implied delegation from Congress to agencies of legislative power to fill statutory gaps and interpret statutory ambiguities. Other scholars understand Chevron as, in effect, a delegation of interpretive power from the courts to agencies. This Article argues that neither view of Chevron is correct

Legal Transitions and the Problem of Reliance

This Article analyzes the literature on legal transitions. The principal focus is taxation, but the analysis generalizes to other areas. I argue that the theoretical apparatus developed by scholars active in the legal transitions area suffers from significant conceptual shortcomings. These shortcomings include the unwarranted assimilation of legal to factual change, the naturalization of conventional arrangements, and the disregard of the distinction between making law and finding it. As a consequence, the recent literature offers an analysis that is unable either to explain actual transitions or to provide an adequate theory of how legal change should take place. In the end, the older view of legal transitions is more capable than the newer one of providing an adequate normative and positive framework for understanding legal transitions

Tax Neutrality and Tax Amenities

Neutrality has been a dominant theme in scholarly and policy debates on international taxation for fifty years. This paper questions whether the concept of tax neutrality is adequately specified for analyzing the efficiency properties of international tax systems. As distinct from the closed economy setting, in the open economy setting, tax incentive effects include the redirection of both capital and tax revenues from one jurisdiction to another. Because tax revenues finance infrastructure and other productivity-enhancing goods – so-called “tax amenities” – and because capital burdens infrastructure, one consequence of the reallocation of tax revenues and assets is the adjustment of non-tax-affected rates of return in both home and host jurisdictions. As a result, what are viewed as tax incentive effects, or distortions, improve productivity in some cases. Neutrality as a value, however, rests on the idea that tax incentive effects reduce efficiency by causing resources to be allocated away from some optimum non-tax-affected baseline; this idea is what justifies referring to tax-influenced allocations as distortions. The implication of the argument is that the baseline is normatively arbitrary in the open-economy setting. The paper suggests that in light of these considerations, an analysis focusing on the allocative, distributive and competitive properties of international taxrules would be more helpful than one focused on their neutrality properties. In this spirit, a simple model relating tax revenue and population to productivity is offered

Executive Managers: Cultural Expectations through Stories about Work

An article reports on an exploratory inquiry into the beliefs and perspectives that shape business executives as an occupational culture. The findings and theory were derived from the analysis of components of subject-generated stories of work place experiences. Data were collected from chief executive officers of their direct reports in the Fortune 500 companies. The results suggest that top executives informally influence work assumptions and education of their own profession. Results additionally indicate that executive managers constitute an action-oriented, somewhat insular, and highly influential cultural entity. They control subtly by creating organizational templates that promote assertion, risk-taking, creativity, flexibility, financial acumen and team play to operationalize their organizational visions. It is argued that students of management need to understand executive\u27s values, biases, and expectations in order to succeed in managerial roles. Additional implications for management education are discussed

Thin And Thick Conceptions of The Nineteenth Amendment Right to Vote and Congress\u27s Power to Enforce It

This Article, prepared for a Georgetown Law Journal symposium on the Nineteenth Amendment’s one-hundred-year anniversary, explores and defends a “thick” conception of the Nineteenth Amendment right to vote and Congress’s power to enforce it. A “thin” conception of the Nineteenth Amendment maintains that the Amendment merely prohibits states from enacting laws that prohibit women from voting once the state decides to hold an election. And a “thin” conception of Congress’s power to enforce the Nineteenth Amendment maintains that Congress may only supply remedies for official acts that violate the Amendment’s substantive guarantees. This Article argues the Nineteenth Amendment does more. A “thick” understanding of the Nineteenth Amendment’s substantive right is consistent with the Amendment’s text and history, as well as with a synthetic interpretation of the Constitution and its expanding guarantees of voting rights. The thick understanding of the Nineteenth Amendment would allow voting-rights plaintiffs to attack restrictive voting laws burdening women—especially those laws burdening young women of color, who are also guaranteed nondiscrimination in voting on the basis of age and race. A thick understanding of Congress’s power to enforce the Nineteenth Amendment would give Congress the ability to pass laws protecting women from voter discrimination and promoting their political equality. The thick understanding offers a way to redeem the Amendment from some of its racist origins and entanglement with the sexism that limited the Amendment’s reach. It also reinforces the democratic legitimacy of the Constitution. Nonetheless, the current Court is unlikely to embrace a thick understanding of the Nineteenth Amendment

Transcript: Session 1: One Symptom of a Serious Problem: \u3cem\u3eCaperton v. Massey\u3c/em\u3e

Consider this extraordinary narrative: A resident of a small town brings a tort action against a big corporation and wins a multi-million-dollar jury trial award. While the judgment is pending on appeal to the state supreme court, one of the liberal justices known to often side with tort plaintiffs is up for judicial re-election. To ensure the election of a new justice more sympathetic to corporate defendants, the corporation’s CEO pumps in an extraordinary amount of campaign money, both as candidate contributions and as independent political action committee advertising expenditures. Predictably, the newly elected justice casts the tie-breaking vote in favor of the corporation and reverses the jury trial victory. If this sounds like a narrative from a John Grisham novel, that is because it actually is. I have summarized the plot of The Appeal, Grisham’s 2008 bestseller. When Grisham was interviewed on NBC’s Today Show during his promotional tour, the host, Matt Lauer, asked whether such a chain of events could ever realistically occur. “It’s already happened,” Grisham answered. “It happened a few years ago in West Virginia. A guy who owned a coal company got tired of getting sued, and he elected his own man to the state supreme court.” Reality is, indeed, stranger than fiction. The amazing case to which Grisham referred is, of course, the subject of this panel’s discussion—Caperton v. A.T. Massey Coal

Excitons in T-shaped quantum wires

We calculate energies, oscillator strengths for radiative recombination, and two-particle wave functions for the ground state exciton and around 100 excited states in a T-shaped quantum wire. We include the single-particle potential and the Coulomb interaction between the electron and hole on an equal footing, and perform exact diagonalisation of the two-particle problem within a finite basis set. We calculate spectra for all of the experimentally studied cases of T-shaped wires including symmetric and asymmetric GaAs/Al$_{x}$Ga$_{1-x}$As and In$_{y}$Ga$_{1-y}$As/Al$_{x}$Ga$_{1-x}$As structures. We study in detail the shape of the wave functions to gain insight into the nature of the various states for selected symmetric and asymmetric wires in which laser emission has been experimentally observed. We also calculate the binding energy of the ground state exciton and the confinement energy of the 1D quantum-wire-exciton state with respect to the 2D quantum-well exciton for a wide range of structures, varying the well width and the Al molar fraction $x$. We find that the largest binding energy of any wire constructed to date is 16.5 meV. We also notice that in asymmetric structures, the confinement energy is enhanced with respect to the symmetric forms with comparable parameters but the binding energy of the exciton is then lower than in the symmetric structures. For GaAs/Al$_{x}$Ga$_{1-x}$As wires we obtain an upper limit for the binding energy of around 25 meV in a 10 {\AA} wide GaAs/AlAs structure which suggests that other materials must be explored in order to achieve room temperature applications. There are some indications that In$_{y}$Ga$_{1-y}$As/Al$_{x}$Ga$_{1-x}$As might be a good candidate.Comment: 20 pages, 10 figures, uses RevTeX and psfig, submitted to Physical Review