Category Archives: Laws/Legislation

Wealth Tax Design: Lessons from Estate Tax Avoidance

Source: Jason Oh, Eric M. Zolt, UCLA School of Law, Law-Econ Research Paper No. 20-01, January 27, 2020

From the abstract:
Presidential candidates Elizabeth Warren and Bernie Sanders have both proposed ambitious new annual wealth taxes based on academic work by Emmanuel Saez and Gabriel Zucman. They project these proposals to raise trillions of dollars over the next ten years. Some critics challenge the Saez-Zucman approach to measuring the aggregate wealth of those subject to a wealth tax. Other critics including Larry Summers and Natasha Sarin have used data from estate tax returns and the relatively small amount of revenue the estate tax currently raises to question the revenue projections of these proposals. This comparison can be useful only if one thinks carefully about specific estate tax strategies and how these strategies translate to an annual wealth tax. This article engages in that exercise. When one takes a closer look at estate tax avoidance and how it maps onto an annual wealth tax, a much more complex narrative emerges.

That narrative has four major themes. First, there are some estate tax planning techniques (like valuation games and charitable contributions) which pose similar challenges to an annual wealth tax. These structures provide some support for critics like Summers and Sarin who argue that the annual wealth tax will struggle to raise the projected revenue. Second, other structures (such as grantor-retained annuity trusts ) work well to minimize estate taxes but are of limited use for structuring around an annual wealth tax. Projecting wealth tax revenue using estate tax revenue without considering the revenue consequences of these strategies will understate wealth tax revenue. Third, other techniques (including the use of lifetime estate/gift exemptions) highlight possible synergies between an estate and wealth tax. In many ways, a robust estate tax will make the wealth tax harder to avoid and vice-versa. The converse is also true: a poorly designed estate/gift tax will undermine an annual wealth tax. Adopting a wealth tax without strengthening the gift and estate makes little sense. Fourth, one of the major lessons of estate tax planning is that it is much easier to minimize estate taxes on future wealth than existing wealth. A myriad of techniques allow taxpayers to “freeze” the value of assets for estate tax purposes. Freezing techniques will also prove helpful in minimizing wealth taxes. It is possible that even a well-designed wealth tax will have a base that shrinks rather than grows over time.

Forced into Employment Arbitration? Sexual Harassment Victims are Saying #MeToo and Beginning to Fight Back – But They Need Congressional Help

Source: Samuel Lack, Harvard Negotiation Law Review Online, August 2020

As awareness of the prevalence and pervasiveness of workplace sexual harassment has grown in the United States, so, too, has the use of mandatory arbitration clauses in employment contracts to shepherd employee claims out of courtrooms and into private arbitration proceedings. Though private arbitration is often touted as cheaper and more efficient than traditional litigation, employees are significantly less likely to win in arbitration and, when they do, their awards are often much less.

Grown out of the expansion of the Federal Arbitration Act (FAA), passed in 1926, mandatory arbitration clauses now cover over half of non-union workers in the United States. Despite evident inequities, Congress has done little to abate the expansion, and the federal court system has adopted a strong pro-arbitration jurisprudence. In recent years, the Supreme Court has gone as far as to limit the use of group arbitration—to the severe detriment of sexual harassment victims amid what can be an already arduous claim process. In response, states and localities have passed laws that forbid or limit the use of mandatory arbitration clauses. These laws, however, are often preempted by the FAA and never take effect. The public has also pushed back against mandatory arbitration and has achieved real success. Many corporations and law firms are stopping the practice amid public pressure, walk-outs, and boycotts.

This Comment will detail the prominent inequities present in mandatory arbitration, particularly in cases of sexual harassment and workplace discrimination. Then, it will advocate for one of two things: (1) judicial reinterpretation of the FAA and its savings clause to permit states to pass laws that restrict the use of mandatory arbitration, or (2) congressional action, namely the passage of the Ending Forced Arbitration of Sexual Harassment Act. This legislation, combined with strategic public pressure on legislators and businesspeople, would lead to immediate relief for sexual harassment victims and signal larger arbitration reform on the horizon.

Coronavirus Response Resource Center

Source: Government Finance Review, 2020

The resources in this center reflect the latest guidance and materials on the recently enacted laws passed in response to the coronavirus pandemic. The programs and funding were included in the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Given the fluid nature in the release of guidance and implementation of the various programs.

Breaking contracts over coronavirus: Can you argue it’s an ‘act of God’?

Source: Andrew Schwartz, The Conversation, March 31, 2020

The coronavirus pandemic has prevented countless people from fulfilling their contracts, from basketball players to babysitters. Could all of these people be sued for breach of contract, or are they excused due to this extraordinary event? What about payments made in advance, such as tickets bought for a concert that has now been canceled or a dorm room leased at a college that is now closed? ….

….Force majeure clauses are common in corporate contracts. They dictate which types of unexpected events will excuse performance and how to deal with payments already made or other losses. The precise wording of these clauses is key. Some might expressly mention pandemics or government orders, while others might not. Similarly, some clauses might call for full restitution, while others might provide for 50% refunds or no refund at all. Whatever the force majeure clause says will displace the ordinary rules of impossibility and restitution.

The contract between the NBA and its players, for example, includes a force majeure clause that specifically covers epidemics. It states that basketball teams can withhold part of their players’ salaries for each canceled game, and ESPN reported that the league was considering it. ….

Labor Antitrust’s Paradox

Source: Hiba Hafiz, Boston College Law School Legal Studies Research Paper No. 521, Last revised: 19 January 19, 2020

From the abstract:
Growing inequality, the decline in labor’s share of national income, and increasing evidence of labor market concentration and employer buyer power are all subjects of national attention, eliciting wide-ranging proposals for legal reform. Many proposals hinge on labor market fixes and empowering workers within and beyond existing work law or through tax-and-transfer schemes. But a recent surge of interest focuses on applying antitrust law in labor markets, or “labor antitrust.” These proposals call for more aggressive enforcement by the Department of Justice (DOJ) and Federal Trade Commission (FTC) as well as stronger legal remedies for employer collusion and unlawful monopsony that suppresses workers’ wages.

The turn to labor antitrust is driven in part by congressional gridlock and the collapse of labor law as a dominant source of labor market regulation, inviting regulation through other means. Labor antitrust promises an effective attack because agency discretion and judicial enforcement can police labor markets without substantial amendments to existing law, bypassing the current impasse in Congress. Further, unlike labor and employment law, labor antitrust is uniquely positioned to challenge industry-wide wage suppression; suing multiple employers is increasingly challenging in work law as a statutory, doctrinal, and procedural matter.

But current labor antitrust proposals, while fruitful, are fundamentally limited in two ways. First, echoing a broader antitrust policy crisis, they inherit and reinvigorate debates about the current consumer welfare goal of antitrust. The proposals ignore that, as a theoretical and practical matter, employers’ anticompetitive conduct in labor markets does not necessarily harm consumers. As a result, workers’ labor antitrust challenges will face an uphill battle under current law: where consumers are not harmed, labor antitrust can neither effectively police employer buyer power nor fill gaps in labor market regulation left by a retreating labor law. Second, the proposals ignore real synergies between antitrust enforcement and labor regulation that could preempt the rise of employer buyer power and contain its exercise.

This Essay analyzes the limitations of current labor antitrust proposals and argues for regulatory sharing between antitrust and labor law to combat the adverse effects of employer buyer power. It makes three key contributions. First, it frames the new labor antitrust as disrupting a grand regulatory bargain, reinforced by the Chicago School, that segregated labor and antitrust regulation to resolve a perceived paradox in serving two masters: workers and consumers. The dominance of the consumer welfare standard resolved that paradox. Second, it explains how scholarly attempts to invigorate labor antitrust fail to overcome this paradox and ignore theoretical and doctrinal roadblocks to maximizing both worker and consumer welfare, leaving worker plaintiffs vulnerable to failure. Third, it proposes a novel restructuring of labor market regulation that integrates antitrust and labor law enforcement to achieve coherent and effective regulation of employer buyer power. It refocuses labor antitrust claims on consumer welfare ends and relegates worker welfare considerations to a labor law supplemented and fortified by the creation of substantive presumptions and defenses triggered by labor antitrust findings as well as labor agency involvement in merger review.

Janus-Faced Judging: How the Supreme Court is Radically Weakening Stare Decisis

Source: Michael Gentithes, Loyola University Chicago School of Law, January 16, 2020

From the abstract:
Drastic changes in Supreme Court doctrine require citizens to reorder their affairs rapidly and undermine trust in the judiciary. Stare decisis has traditionally limited the pace of such change on the Court, acting as a bulwark to wholesale jurisprudential reversals by the Justices. Yet in recent years, the stare decisis doctrine itself has come under threat.

With little public or scholarly notice, the Supreme Court has radically weakened stare decisis. The Court has long suggested that a precedent, regardless of the quality of its reasoning, should stand unless there is some special, practical justification to overrule it. But in several recent decisions, the Court has suggested that “poor reasoning” in a prior decision both triggers stare decisis analysis and justifies overruling cases. This presents a grave threat to legal stability. Justices can always find reasoning they believe is “poor” in prior decisions. Stare decisis under this formulation provides little restraint against changing course. It also opens the door to “wave theories” of stare decisis, whereby new Justices seeking rapid change can claim fidelity to a weak version of stare decisis early in their careers, only to suggest a stronger version later to protect their own decisions.

This weakened version of stare decisis has deep analytical flaws that would allow perpetual changes to legal doctrine based simply on the current Justices’ policy preferences. The Court must not accept the alarming effects such a weak version of stare decisis would have on legal stability, consistency, and judicial legitimacy.

Copy, Paste, Legislate (beta)

Source: Center for Public Integrity, 2019

Do you know if a bill introduced in your statehouse — it might govern who can fix your shattered iPhone screen or whether you can still sue a pedophile priest years later — was actually written by your elected lawmakers? Use this new tool to find out.

Spoiler alert: The answer may well be no.

Thousands of pieces of “model legislation” are drafted each year by business organizations and special interest groups and distributed to state lawmakers for introduction. These copycat bills influence policymaking across the nation, state by state, often with little scrutiny. This news application was developed by the Center for Public Integrity, part of a year-long collaboration with USA TODAY and the Arizona Republic to bring the practice into the light.

Related:
Puppies, phones and porn: How ‘model legislation’ affects consumers’ lives
Source: Kristian Hernández, Pratheek Rebala, Center for Public Integrity, November 20, 2019

…..Earlier this year, the Center for Public Integrity, USA TODAY and the Arizona Republic analyzed model statehouse bills to take the first nationwide accounting of how prolific copycat legislation has become.

Today, the news organizations publicly released a new model legislation tracker that goes deeper, identifying copycat legislation by comparing statehouse bills to each other — and making that information accessible to the public.

The tool developed by Public Integrity reveals model bills — some previously unidentified — that impact nearly every aspect of American life, from who can grow hemp or breed puppies, to what can be called “milk” or “meat” for purchase at your local grocery stores.

Using the new model legislation tracker, Public Integrity retrieved nearly 1.2 million bills across all 50 states and compared their text to identify when two bills in different states have common language…..

How the First Forty Years of Circuit Precedent Got Title VII’s Sex Discrimination Provision Wrong

Source: Jessica A. Clarke, Vanderbilt Law Research Paper No. 19-32, Last revised: October 6, 2019

From the abstract:
The Supreme Court will soon decide whether, under Title VII of the Civil Rights Act of 1964, it is discrimination “because of sex” to fire an employee because of their sexual orientation or transgender identity. There’s a simple textual argument that it is: An employer cannot take action on the basis of an employee’s sexual orientation or transgender identity without considering the employee’s sex. But while this argument is simple, it was not one that federal courts adopted until recently. This has caused some judges to object that the simple argument must be inconsistent with the original meaning of Title VII. In the words of one Fifth Circuit judge, “If the first forty years of uniform circuit precedent nationwide somehow got the original understanding of Title VII wrong, no one has explained how.”

This Essay explains how the first forty years of circuit precedent got Title VII wrong. It demonstrates that, rather than relying on the statutory text, early appellate decisions relied on their era’s misunderstanding of LGBTQ identities as pathological, unnatural, and deviant. The errors of the early cases persisted as a result of stare decisis, until the old doctrine was rendered indefensible by changing social attitudes, the rise of textualism, and the Supreme Court’s recognition that Title VII forbids an employer from insisting that men or women conform to sex stereotypes. This account has important implications for the pending cases, as well as for social movements that seek to disable prejudice.

ProGov21 – a digital library of progressive local government policies and practices

Source: ProGov21, 2019

ProGov21 is a shared resource for local progressive policy makers and advocates. This is a fully searchable on-line library of innovative progressive laws and practices used throughout the country, along with toolkits for their effective communication and advocacy.

To search for anything, simply type in the search bar above. You can put in a particular name, a policy area of interest, and much more. You can target your search by applying any of the filters that will then appear on the left of the screen, including level of government, state, year, kind of document, or policy area.

ProGov21 is a fully searchable digital library of progressive local government policies and practices as well as assists in their effective communication and advocacy. ProGov21 is maintained and administered by COWS but its contents and library are user generated from a broad array of progressive organizations.

Race, Gender, and Equal Protection Jurisprudence

Source: Dan Ziebarth, George Washington University, Date Written: July 21, 2019

From the abstract:
This essay forwards the discussion of equal protection jurisprudence concerning considerations of fairness and equality in relation to race and gender through a four-section comparative assessment. Section I will describe the historical and jurisprudential background of issues and debates in racial discrimination. Section II will describe the historical and jurisprudential background of issues and debates in gender discrimination. Section III will analyze the distinct convergence and divergences that have appeared in constitutional interpretation of equal protection jurisprudence. Section IV will assess the underlying theoretical disparities between two major schools of thought in equal protection jurisprudence, referred to as colorblind constitutionalism and antisubordination constitutionalism. Finally, the conclusion will provide remarks on equal protection jurisprudence, discuss how this has affected the state of contemporary social affairs, and argue for the adoption of equal protection jurisprudence that focuses on just procedure, which targets the consistency in unbiased processes of judicial application, as opposed to the final decision, as principal in the determination of fair and equal treatment in the administration of justice.