Capital University Law Review
- Capital University
- Publication date:
- No. 48-3, June 2020
- No. 48-2, March 2020
- No. 48-1, January 2020
- No. 47-4, December 2019
- No. 47-3, June 2019
- No. 47-2, March 2019
- No. 47-1, January 2019
- No. 46-4, December 2018
- No. 46-3, June 2018
- No. 46-2, March 2018
- No. 46-1, January 2018
- No. 45-4, December 2017
- No. 45-3, June 2017
- No. 45-2, March 2017
- No. 45-1, January 2017
- No. 44-4, December 2016
- No. 44-3, June 2016
- No. 44-2, March 2016
- No. 44-1, January 2016
- No. 43-4, December 2015
- Non-Cooperative Compliance in the Corporate Tax Audit
The term "cooperative compliance" refers to a special tax incentive offered exclusively to large corporations designed to prospectively limit the scope of the tax audit. In the United States, the CAP program is usually given as the prime illustration of such a program, but the broader FIN48 "policy of restraint" also meets the definition. The IRS’ FIN48 "policy of restraint" applies automatically to all audits of public firms, thus leading to a vast reduction in corporate tax receipts via the failure to comprehensively audit the aggressive tax positions of large corporations reflected in their own accounting records. Prior justifications for "cooperative compliance" programs such as the supposed historical "command-and-control" practices for tax audits are shown to be flawed and not relevant to corporate tax audits. The real purpose of cooperative compliance programs appears to be a type of advertisement to large corporations that tax laws will not be strictly enforced in the respective jurisdiction. The cooperative practices are thus offered as a means of international tax competition (and as a type of State Aid) for multinational firms by prospectively limiting the scope of corporate tax audits. A revised theory of the corporate tax audit is developed here based on non-cooperative audit practices.
- Tax Treaty Overrides and Friendliness Towards International Law: A Comparative Approach to Put the Later-in-Time Rule to the Test
This article concerns an issue at the intersection of tax law, constitutional law and international law. Tax treaties are the major instrument to align cross-border taxation. Nevertheless, the United States (and other countries following this example) developed a practice of national legislative counteraction of tax treaties. This disregard for international agreements is internationally recognized as one of the pressing issues of international taxation. Remarkably, however, this is not reflected in the United States’ jurisprudence. One hundred fifty years ago, the Supreme Court developed the later-in-time-rule, which makes (tax) treaty overriding through later legislation possible, and never truly reconsidered this rule. But the world has not stood still since the nineteenth century. The United States today is party to nearly seventy tax treaties, and treaty overrides affect taxpayers all over the world. Modern-day America therefore must reconsider the practice of frequently violating international law in the tax context. This article presents a basis for the overdue discussion based on a comparative approach. It refers to the situation in Germany, where treaty overrides are probably the most discussed issue of international tax law–not only in scholarship, but also in the jurisprudence of the Federal Finance Court and the Federal Constitutional Court. A principle of friendliness towards international law is at the center of the German debate and this article argues, that this idea is a known variable in the United States, too. The piece advocates for a deference towards international law and provides a starting point for a reconsideration of the later-in-time-rule in the tax context of the United States.
- Judicial Selection: Diversity, Discretion, Inclusion, and 'The Idea of Justice'
Judicial diversity has long been an ostensible judicial selection goal of the legal community. Yet today judicial selection norms are being tested in significant ways. The current President is breaking standards of governance and political discourse related to judges and the rule of law in troubling and dangerous ways. At the same time, the current President and the U.S. Senate have abandoned years of bi-partisan norms of judicial selection in a bald effort to gain "conservative" control of the federal courts. As a result, the goal of judicial diversity not only has been abandoned, but reversed. This article examines the state of judicial diversity, its importance, and obstacles to its improvement. It argues that diversity on the bench is crucial to justice, fairness, and the judiciary’s legitimacy. Observing deep-seated obstacles to diversity efforts, the article breaks new ground by relating implicit resistance to diversity to theories of "blind justice" and the judge’s role that are based on notions of impartiality expressed in philosopher John Rawls’s "view from nowhere." While acknowledging the appeal of Rawls’s theories of justice and fairness, the article explains their limitations and misapplication in the practice of improving justice. It then offers theories of justice that critique the pure objective approach and support the view that the inclusion of persons representing diverse views and experiences is and should be a key consideration in improving justice. It connects the development of an idea of justice that moves away from Rawls’ "view from nowhere" to a notion of the possibility of a "view from everywhere" that more effectively contributes to goals of impartiality and fairness, and provides strong theoretical support for judicial diversity as a central concern in the delivery of justice.
- Qualified Opportunity Zones - How Active Participation and Complementary Legislation Can Help States Develop Their Distressed Communities
In December of 2017, the Tax Cuts and Jobs Act included a brand new, geographically targeted tax incentive commonly referred to as Opportunity Zones. The Opportunity Zone law was a bipartisan bill which aims to benefit underserved communities by connecting private capital gain dollars to those communities. The driver behind this law was to encourage long-term investments from taxpayers who held capital gains, so that the identified communities could experience a stable, gradual growth following their lackluster recovery following the 2008 housing market crash. State governors made the designation of certain communities which met criteria, but were limited to only a certain percentage of eligible tracts. Because of these limitations, not every underserved tract that met the criteria could be selected and many governors focused on those tracts which would see an influx of investment from taxpayers if selected. This article explores the background on the creation and purpose of the Opportunity Zone law, explains the mechanics on how to structure an Opportunity Zone investment, and details the benefits that are available to taxpayers who take advantage of Opportunity Zones. Additionally, further explanation on how to use the Opportunity Zone law in real estate investments is provided, although on a limited basis as every investment should be carefully considered on an individual basis because of the many different ways to structure an Opportunity Zone investment. Lastly, an overview of the ways state governments have been active participants in maximizing Opportunity Zones at the state level is provided, which for many states, includes the adoption of a complementary law to provided additional state-level tax benefits. Commentary is provided on suggestions for how states can improve their complementary laws, which argues that states can best serve their local Opportunity Zones by including an affordable housing component within their complementary law.
- Informants v. Innocents: Informant Testimony and its Contribution to Wrongful Convictions
Informant testimony is a leading cause of wrongful convictions. The Supreme Court has recognized the questionable reliability of informant testimony but has generally held it admissible while emphasizing the existing safeguards built into the legal system. Psycholegal research has demonstrated the overwhelmingly persuasive nature of informant testimony on jurors’ decisions and has questioned the adequacy of existing safeguards. We present results from a content analysis of Innocence Record cases involving informants to understand their role in wrongful convictions. Based on these results, we provide an overview of relevant psychological mechanisms that could explain why jurors rely on this inaccurate testimony.
- Gender-Silent Legislative Drafting in a Non-Binary World
Language both reflects and changes society. From the 1970s onward, English-language jurisdictions successfully shifted from a male-centric framework (where "he" was presumed to include women) to a style of legislative drafting that was gender neutral. In most jurisdictions, women are no longer invisible but can see themselves in the laws that apply to them. Now, there is growing recognition of the rights of those who identify as neither male nor female - but this group is not represented in traditional gender-neutral drafting. This article is an important contribution to the conversation about the treatment of gender in language in general and in legislative drafting in particular. We show how English-language legislative drafting throughout the world has moved from the dominant representation of males in legal policy and the masculine gender in legislation to a more balanced representation of men and women and a gender-neutral style and how, despite resistance from grammarians and others, the arc of justice now requires an analogous shift to a gender-silent style. Language is an instrument that can be used as a tool to oppress, discriminate, and exclude – or it can equally well be used to advance equality. We believe it is high time to treat non-binary persons with the respect and fairness now accorded to women in legislation. We believe all jurisdictions should embrace gender-silent drafting as an honorable way to treat one another in a non-binary world, and we provide clear guidelines of how to achieve a gender-silent style.
- Pharmacist Refusals in Ohio: A Compromise
The boundary between individual rights is one that is fraught with conflict. Where do one person’s rights begin and another’s end? In the health care arena this conflict often arises where a provider’s right to free exercise of religion conflicts with a patient’s right to certain kinds of treatment. To protect both parties’ important interests, finding a compromise is essential, though never easy. This comment addresses the conflict between pharmacists and their patients when a pharmacist objects to providing his or her patient with emergency contraception, based on the pharmacist’s moral or religious beliefs. Ohio’s policymakers have remained silent on this issue, essentially allowing these refusals to go unchecked by the government. This comment urges the Ohio General Assembly to pass a bill proposing a compromise that allows these refusals, but that also contains patient protections, so that Ohio can more effectively protect both pharmacists and their patients.
- A United Nations Convention on Cybercrime
The threat of cybercrime has been on the rise for the past decade. This challenge is only made worse by the lack of preparedness in many of the targeted countries. Problems such as outdated software, untrained personnel, and lax security measures have left the global economy, critical infrastructure, and national governments vulnerable to attack. With the click of a mouse, a sophisticated cybercriminal can release floodgates, cut power supplies, and even infiltrate nuclear control systems, all from the comfort of his home. Despite the multitude of war-like harms that can be inflicted by a well-planned cyberattack, many countries still lack the resources and knowledge necessary to defend against these often government-sponsored actors. This comment argues that a United Nations Covenant on Cybercrime would be a necessary and effective tool for combatting the transnational nature of cybercrime. Such a covenant would answer many of the challenges countries have when dealing with cybercrime, such as how to prosecute the attacker, what methods of retaliation are appropriate, and how further attacks can be prevented. International cooperation on this issue would also lead to more global security as mutual assistance would help build the cyber capacities of lesser-prepared nations. Without a global regime establishing rules and consequences for such actions, cybercriminals will continue to attack private and public sectors with impunity.
- Looking for Work in All the Wrong Places: An Argument for the Adoption of a Job-Seeker Visa in the United States
This article outlines the legal justifications for the creation of a specific job-seeker visa within the U.S. immigration framework.
- Now You See Me: An Examination of the Legality of Police Use of Utility Pole Surveillance Cameras
Advancing technology has given law enforcement officials a tremendous ability to watch and track individuals in their daily lives, and police departments sometimes push the limits on what is allowed without a warrant. Not everything is, as Supreme Court precedent such as United States v. Jones and Carpenter v. United States show. But the field has been lacking any definitive ruling from the Supreme Court on the issue of utility pole cameras and whether use of such cameras constitutes a Fourth Amendment search. Several district courts have addressed the issue and so far the Supreme Court has been content to allow these courts to issue rulings individually as relevant cases arise. This comment collects the district court decisions and couples them with Supreme Court precedent on police use of technology, as well as a few outside expert opinions, to provide a path down which the Supreme Court should trod if and when the Court tackles the issue. The definitive destination of this path finds that police use of utility pole surveillance cameras does not constitute a Fourth Amendment search, provided a few conditions are met. The cameras must operate from a publicly accessible position and use publicly available technology, provide law enforcement officials with limited knowledge of an individual’s whereabouts, and can only be used for a reasonable amount of time. Adherence to these conditions would eliminate the requirement that law enforcement officials obtain a warrant before installing or using the camera for surveillance purposes. Such a conclusion simultaneously protects the privacy rights of individuals and allows law enforcement officials the ability to adapt to best serve the communities they are entrusted to protect.
- The Patriot Act and Crisis Legislation: The Unintended Consequences of Disaster Lawmaking
The fear inspired by disaster and tragedy has frequently produced overreactions at watershed moments in American history. This Article argues that these recurring spasms of fearful congressional overreaction should be properly labeled as “crisis legislation.” Most instances of crisis legislation...
- Do I Have to be Reasonable?: The Right to Arbitrarily Restrict Transfer of Occupancy and Mineral Leases
There are two overarching issues. First of all, is there a right to arbitrarily restrict lease transfers? Part I of this article examines why a party to an occupancy lease would want the absolute right to veto transfers, and discusses whether parties should be permitted to bargain for such a right. ...
- Reclaiming Economic Legacy: One Legal Strategy for a 2022 Fifa World Cup USA
A proposal on how the USSF (United States Soccer Federation) can use the FAUC (Swiss Federal Act on Unfair Competition) in a collateral challenge to enjoin the QFA (Qatar Football Association), allowing bids to be re-opened for the next FIFA (Fe´de´ration Internationale de Football Association)...
- Avoiding Unintended Disclosure: Representing Clients with HIV and AIDS
Few attorneys representing clients with HIV/AIDS will be faced with the moral dilemma discussed in law review articles written twenty years ago. More commonly, the attorney and client will be in agreement about whether disclosure of the client’s seropositivity is necessary or advisable. When the...
- Excuse in International Law
International law displays an asymmetry in its treatment of individuals and states: individuals may claim excuse under some circumstances, but state wrongdoing is always inexcusable; this asymmetry has been largely unexamined and (rightfully) undefended....
- Tax Treaty Overrides and Friendliness Towards International Law: A Comparative Approach to Put the Later-in-Time Rule to the Test
This article concerns an issue at the intersection of tax law, constitutional law and international law. Tax treaties are the major instrument to align cross-border taxation. Nevertheless, the United States (and other countries following this example) developed a practice of national legislative...
- The Totalitarian Ideological Origins of Hate Speech Regulation
The current efforts created to regulate speech are reminiscent of the speech controls initially instituted within the Soviet and Maoist regimes. The efforts to regulate hate speech have failed to challenge the normative and empirical bases of speech regulation....
- A United Nations Convention on Cybercrime
The threat of cybercrime has been on the rise for the past decade. This challenge is only made worse by the lack of preparedness in many of the targeted countries. Problems such as outdated software, untrained personnel, and lax security measures have left the global economy, critical...
- Falling Short: How the International Olympic Committee's Transgender Regulations Falls Short of its Intended Purpose of Promoting Fairness in Sport and Competition
This article argues that the approach currently employed by the IOC is inadequate to ensure both fairness to competitors and access to competition for transgender athletes. It falls short of its intended purpose of promoting fairness in sport, because it fails to protect cisgender female...
- Postadjudicatory Juvenile Defense Attorneys: More Thoughts on Reimagining Juvenile Justice