SLR Online

Essay

File Folders of Taxes

Essay

Hyperlocal Responses to the SALT Deduction Limitation

by  Manoj Viswanathan  

The Tax Cuts and Jobs Act places a $10,000 limit on the federal deduction for state and local taxes (SALT). Much has been said about state-level responses to this cap, but there has been little analysis of local-level effects or how local governments could similarly respond. This Essay addresses that gap by (1) statistically modeling the number of taxpayers affected by the SALT deduction cap at a ZIP-code level, and (2) proposing locality-based strategies relevant to taxpayers throughout the U.S., not just those living in highly affected states.

Volume 71 (2018-2019)

Book with title administrative law on a table.

Essay

May Chevron Be Waived?

by  James Durling & E. Garrett West  

Suppose that a private party sues an agency, arguing that the agency’s regulation exceeds its statutory authority. Normally, a court would review the party’s challenge under the well-known Chevron doctrine, which directs judges to defer to reasonable agency interpretations of ambiguous statutory texts. But what happens if either the private party or the agency doesn’t make an argument under Chevron? Perhaps the agency doesn’t defend its action by invoking deference, or perhaps the private party doesn’t challenge that Chevron should apply.

Volume 71 (2018-2019)

Business graph with arrows tending downwards

Essay

The Last SIFI: The Unwise and Illegal Deregulation of Prudential Financial

by  Jeremy C. Kress*  

On October 16, federal regulators released Prudential Financial from enhanced government oversight. This Essay contends that in removing Prudential’s “systemically important” label, regulators (1) violated their established procedural rules, (2) relied on misleading quantitative analyses, and (3) failed to consider a mandatory statutory factor. This Essay thus urges litigation and Congressional oversight challenging the rescission of Prudential’s “systemically important” status.

Volume 71 (2018-2019)

People waiting in queue at arrival immigration of Changi airport

Essay

The Labor Economics Case for the Diversity Visa Lottery

by  Patrick Kennedy  

Authors writing in many political publications have spilled ink describing the diplomatic benefits and positive self-selection spurred by immigration programs like the diversity lottery (DV). This essay argues that there is a more fundamental economic case for keeping the DV lottery: Immigrants move to where other immigrants live, so establishing a mechanism to encourage immigration from countries with few immigrants is critical. Without the DV program, America will lose an important advantage in the global war for talent over the long run.

Volume 71 (2018-2019)

The Freedom of Information Act (FOIA) written on a page.

Essay

Deference Conservation—FOIA’s Lessons for a Chevron-less World

by  John C. Brinkerhoff Jr. & Daniel B. Listwa  

Introduction In SAS Institute Inc. v. Iancu, the Supreme Court entered the next chapter in the long-winding debate over Chevron deference, which instructs courts to defer to an agency’s reasonable interpretation of its substantive statutes. Writing for a five-member majority, Justice Gorsuch refused to affirm the doctrine, noting portentously that “whether Chevron should remain is a…

Volume 71 (2018-2019)

retirement benefits

Essay

Postmortem Austerity and Entitlement Reform

by  Reid Kress Weisbord  

Abstract. This Essay proposes a novel policy of "postmortem austerity" to address the unsustainable, rapidly escalating cost of federal entitlement programs following the 2017 tax reforms. If Social Security and Medicare continue on their current path to insolvency, then they will eventually require austerity reforms absent a politically unpopular tax increase. This Essay argues that,…

Volume 71 (2018-2019)

School kids running in elementary school hallway, back view

Essay

The Compromised Right to Education?

by  Joshua E. Weishart  

Introduction Indiana Jones's quest to discover the holy grail in The Last Crusade leads him to a hidden grotto lined with chalices, a Nazi, and a medieval knight. The Nazi sips from an ornate, gold chalice accented with jewels, convinced he has chosen the true grail. He is mistaken and pays for it with his…

Volume 71 (2018-2019)

Global communication network around planet Earth in space, worldwide exchange

Essay

Microsoft Ireland, the CLOUD Act, and International Lawmaking 2.0

by  Jennifer Daskal  

Introduction On March 23, President Trump signed the CLOUD Act, thereby mooting one of the most closely watched Supreme Court cases this term: the Microsoft Ireland case. This essay examines these extraordinary and fast-moving developments, explaining how the Act resolves the Supreme Court case and addresses the complicated questions of jurisdiction over data in the…

Volume 71 (2018-2019)

Gun and Constitution

Essay

Defending an Under-21 Firearm Ban Under the Second Amendment Two Step

by  Amit Vora  

Introduction In the wake of the mass shooting in Parkland, Florida, more lawmakers may be willing to concede that 18-to-20-year-olds are ill suited to keep and bear firearms. Under current federal law, an 18-to-20-year-old may purchase a long gun from a federally licensed or unlicensed dealer, may purchase a handgun from an unlicensed dealer, and…

Volume 71 (2018-2019)

Vintage toned Wall Street at sunset, NYC.

Essay

The ‘Hidden’ Tax Cost of Executive Compensation

by  Kobi Kastiel & Noam Noked  

Introduction The sweeping tax reform enacted in December 2017 will significantly increase the tax cost of executive compensation in publicly held corporations where the compensation for each of the top five executives exceeds $1 million. Nonetheless, it is unlikely that these corporations will reduce the executive compensation to offset the increased tax cost, which will…

Volume 70 (2017-2018)

Gavel with handcuffs and money on the wooden table. Crime and law concept.

Essay

Punishing Poverty

California’s Unconstitutional Bail System
by  Christine S. Scott-Hayward & Sarah Ottone  

Last year, an article in The Guardian highlighted the disparities inherent in California’s pretrial detention system. Reporter Sam Levin compared the cases of Tiffany Li, accused of murder for hire, who was released under house arrest after satisfying the $35 million bail set in her case, and Joseph Warren, who at the time was in custody…

Volume 70 (2017-2018)

Man making online purchase with credit card

Essay

Kill Quill, Keep the Dormant Commerce Clause

History's Lessons on Congressional Control of State Taxation
by  Brian Galle  

Introduction The world of internet commerce was shaken to its foundations in January this year, when the Supreme Court granted certiorari in South Dakota v. Wayfair, Inc., in effect agreeing to reconsider its landmark holding in Quill Corp. v. North Dakota. For more than twenty-five years, Quill has barred states from imposing tax-collection obligations on retailers that…

Volume 70 (2017-2018)

Professionals dealing with taxes and markets

Essay

Itemized Deductions in a High Standard Deduction World

by  Emily Cauble  

New tax legislation enacted in December 2017 exacerbates the extent to which various itemized deductions, such as the charitable contribution deduction and the home mortgage interest deduction, disproportionately benefit high income individuals. This essay develops this critique and concludes by suggesting paths for reform that should be considered by a future Congress.

Volume 70 (2017-2018)

Supreme Court columns with American flag and US Capitol

Essay

Is the Federal Judiciary Independent of Congress?

by  Evan C. Zoldan  

Can Congress command a federal court to rule in favor of a particular party in a pending case? The answer to this seemingly simple question is unsettled. The Constitution permits Congress to enact rules of law that courts must follow; and it permits the courts to decide cases pending before them. Constitutional conflict arises when…

Volume 70 (2017-2018)

Pile of document files

Essay

The Costs of Aggregating Administrative Claims

by  Shannon M. Grammel & Joshua C. Macey  

Introduction Aggregation has emerged in the past few years as a critical tool by which agencies can quickly resolve groups of claims that would otherwise languish for years in bureaucratic limbo. The idea is simple: Consolidating many similar claims in a single proceeding would help agencies process claims more quickly, efficiently, and fairly. But aggregation…

Volume 70 (2017-2018)

Book and glass loupe

Essay

The Faulty Frequency Hypothesis

Difficulties in Operationalizing Ordinary Meaning Through Corpus Linguistics
by  Ethan J. Herenstein  

Introduction Promising to inject empirical rigor into the enterprise of statutory interpretation, corpus linguistics has, over the past couple years, taken the legal academy by storm. A product of linguistics departments, corpus linguistics is an empirical approach to the study of language through the use of large, electronic, and searchable databases of text called corpora.…

Volume 70 (2017-2018)

Block chain network concept on technology background

Essay

Blockchain’s Big Hurdle

by  Riley T. Svikhart  

Blockchain technology can maintain accurate chains of title to securities and other legal instruments in a reliable electronic form. As private industries begin to recognize the cost-saving and risk-reducing potential of this technology, state legislatures are responding. Arizona’s H.B. 2417 is a prototypical state solution. In essence, the law requires parties to treat blockchain-secured records,…

Volume 70 (2017-2018)

Investment and Stock Market watchdog

Essay

Leidos and the Roberts Court’s Improvident Securities Law Docket

by  Matthew C. Turk & Karen E. Woody  

For its October 2017 term, the U.S. Supreme Court took up a noteworthy securities law case, Leidos, Inc. v. Indiana Public Retirement System. The legal question presented in Leidos was whether a failure to comply with a regulation issued by the Securities and Exchange Commission (SEC), Item 303 of Regulation S-K (Item 303), can be grounds for a…

Volume 70 (2017-2018)

Statue of Confederate Soldier Looking at Copy Space

Essay

Confederate Statute Removal

by  Aneil Kovvali  

Certain state governments have adopted statutes that are designed to prevent city governments from eliminating memorials to Confederate forces and leaders. Critics of these controversial statutes generally focus on the moral issue of preserving statues honoring white supremacy. This Essay highlights a different set of concerns: These statutes suppress the speech of cities while compelling…

Volume 70 (2017-2018)

Scrabble Letters

Essay

The Words Under the Words

by  Patrick Barry  

The words lawyers choose can change the decisions people make. Psychologists call the mechanics of this change “framing.” They’ve found, for example, that more people will decide to have a surgery if they are told that the “survival rate is 90%” than if they are told that the “mortality rate is 10%”—even though a survival…

Volume 70 (2017-2018)