Crises and Tax

How can law best mitigate harm from crises like storms, epidemics, and financial meltdowns? This Article uses the law and economics framework of property rules and liability rules to analyze crisis responses across multiple areas of law, focusing particularly on the ways the Internal Revenue Service (IRS) battled the 2008–09 financial crisis. Remarkably, the IRS’s responses to that crisis cost more than Congress’s higher-profile bank bailouts. Despite their costs, many of the IRS’s responses were underinclusive, causing preventable layoffs and foreclosures. This Article explains these failures and demonstrates that the optimal response to crises is to shift from harsh property rules to compensatory liability rules, temporarily. Arranging such a shift in advance further mitigates harm when crises arrive. This analysis also provides new insights for the broader literature on property rules and liability rules. For example, arranging in advance for temporary moves to liability rules during crises can avoid windfalls, allow speedier relief, and encourage flexible private contracts. These lessons have practical applications in areas as far afield as how constitutional law and patent law respond to epidemics

Using Insurance Law and Policy to Interpret the Tax Code\u27s Loss and Medical Expense Provisions

Prior scholarship recognized that I.R.C. § 165 (allowing a deduction for casualty losses) and I.R.C. § 165 (authorizing a deduction for medical expenses) are a free partial insurance scheme, providing tax benefits that partially offset the losses or medical expenses. Courts have long wrestled with determining eligibility for these deductions. This Note proposes that courts should look to the well-developed body of insurance case law to interpret eligibility for these deductions. It further proposed that the government, which effectively acts as an insurer via these deductions, could raise additional revenue using subrogation, which traditional insurers have long used to partially recoup payouts

Profits as Commercial Success

Courts often use the extent of a patented invention’s commercial success as crucial nontechnical proof of the patent’s validity. Relying on misguided economic reasoning, most courts use revenue as the primary yardstick for commercial success. This Note argues that courts instead should use profits as the proper measure of an invention’s commercial success. Current jurisprudence’s use of revenue reflects the flawed premise that firms maximize revenues rather than maximizing profits. As a result, courts will often find commercial success when the financial data suggest otherwise and vice versa. This Note finds the accounting and economic issues involved to be insubstantial, while requiring a threshold profit showing could materially further judicial economy

Increased Market Power as a New Secondary Consideration in Patent Law

Courts have developed nine non-technical secondary considerations to help juries and judges in patent litigation decide whether a patent meets the crucial statutory requirement of being non-obvious. This article proposes a new, tenth secondary consideration: increased market power. If a patent measurably increases its holders’ market power, that should weigh in favor of finding the patent non-obvious. This new secondary consideration incorporates the predictive benefits of several existing secondary considerations, while increasing the accuracy and availability of evidence for fact-finders to determine whether a patent is non-obvious

Tax in the Cathedral: Property Rules, Liability Rules, and Tax

The distinction between property rules and liability rules has revolutionized our understanding of many areas of law. But scholars have long assumed that this distinction has no relevance to tax law. This assumption is flatly wrong. Tax law currently uses both property rules and liability rules, and the choice between them has real consequences. When a taxpayer violates a requirement for a favorable tax status, tax law either imposes additional tax proportionate to the harm (a liability rule) or imposes the draconian penalty of taking away the tax status entirely (a property rule). This recognition has three key implications. First, Congress can and should draw on the rich property and liability rule literature to draft better tax legislation and to reform the tax code. Second, novel variations on property and liability rules can be used to rethink the remedies given to the IRS. Third, tax law will enrich the literature on property and liability rules across many other areas of law

Using Insurance Law and Policy To Interpret the Tax Code\u27s Loss and Medical Expense Provisions

Nancy and Robert Madsen co-owned and operated the Pit Stop Bar & Grill in Cushing, Wisconsin from 1979 until 1982, when Robert intentionally set the tavern ablaze, destroying the establishment. Nancy had no prior knowledge of her husband\u27s plans, nor any involvement with the arson. On their joint income tax return, she deducted one-half of the loss resulting from the fire as a loss under Tax Code § 165, reasoning that she owned one half of the property destroyed. The Tax Court, however, could find no tax case law or IRS regulations on point, and instead disallowed the deduction on other grounds