Tuesday, February 23, 2010

Field on Explicit Elections in the Federal Income Tax System

Heather Field has published an article titled "Choosing Tax: Explicit Elections as an Element of Design in the Federal Income Tax System," 47 Harv. J. Legis. 21 (Winter 2010). Here's the abstract:

Taxpayer choice pervades the federal income tax system. This choice can be made either implicitly, whereby the taxpayer arranges his economic and/or legal affairs so as to qualify for his desired tax treatment, or explicitly, whereby the taxpayer merely tells the Internal Revenue Service how he wishes to be treated for tax purposes, without having to take any specific non-tax actions or structure his financial or legal dealings in any particular way. Scholars often focus on implicit taxpayer choice and seek to hinder that type of tax planning. However, explicit taxpayer choice garners little scholarly attention. This hole in the literature is surprising given that explicit taxpayer choices, in the form of tax elections, generally reflect pure tax-planning opportunities that are affirmatively granted to taxpayers by Congress and the Treasury Department and given that tax elections continue to be added to the Internal Revenue Code. To help fill this gap, this Article provides a framework for understanding how explicit tax elections are and should be used in the federal income tax system. Specifically, by drawing on a wide variety of tax elections, this Article discusses problems that may be caused by the use of explicit tax elections, identifies and assesses four major functions by the use of explicit tax elections, and derives a few generally applicable recommendations about how to design explicit tax elections so as to maximize their efficacy and minimize criticisms of their use. Despite the many compelling criticisms of the availability of explicitly provided taxpayer choices, this Article argues that carefully conceived explicit elections can be valuable tools in the design and administration of the tax system. Moreover, by isolating and analyzing situations where Congress and the Treasury affirmatively turn over to the taxpayers the right to determine their own tax consequences, this study of explicit elections can provide insight into the broader balance of power between taxpayers and the government. And, at the very least, this Article brings scholarly attention to the under-studied role of explicit elections in the tax system.

Monday, February 22, 2010

Boswell on Immigration Amnesty

Richard Boswell has published an article called "Crafting an Amnesty with Traditional Tools: Registration and Cancellation," 47 Harv. J. Legis. 175 (Winter 2010). In this article, Richard focuses on the best way to structure an amnesty program rather than on justifications for one.

The article argues that four overarching principles should govern an amnesty program: (1) the program should be rooted in preserving family unity, meeting needs for work skills, and fostering humanitarian values; (2) the program should in part aim to ameliorate unnecessary hardship to the individual applicant as well as to the community of which he has become a part; (3) the statutory scheme should be as simple as possible to minimize multiple or conflicting interpretations; and (4) ease and comprehensibility of administration.

Here's the link: http://ssrn.com/abstract=1563627

Tuesday, February 16, 2010

Carrillo on Popular Legal Culture

Jo Carrillo has written a chapter called "Popular Legal Culture" for Law in Society and History: Essays on Major Themes in the Work of Lawrence M. Friedman (Cambridge University Press) (Robert Gordon and Morton Horwitz, eds.) (forthcoming).

Wednesday, February 3, 2010

Keitner on Immunities of Foreign Officials from Civil Suit

Chimene Keitner has filed an amicus brief in the United States Supreme Court in Yousuf v. Samantar. In this case, torture survivors and victims' family members sued Samantar, the former Prime Minister and Minister of Defense of Somalia, for torture and extrajudicial killing. Samantar lives in Virginia. The Fourth Circuit held that the Foreign Sovereign Immunities Act of 1976 (FSIA) does not apply to individuals, and therefore does not shield Samantar from suit. It remanded the question of whether other, non-statutory sources of immunity might apply. The U.S. Supreme Court granted Samantar's petition for certiorari to review the Fourth Circuit's decision interpreting the FSIA. Briefing is currently in progress, and oral arguments are scheduled for March 3.

Chimene authored the Brief of Professors of Public International Law and Comparative Law as Amici Curiae in Support of Respondents, which is available online here (http://ssrn.com/abstract=1543642 http://ssrn.com/abstract=1543642> ). This amicus brief systematically examines non-FSIA case law involving the immunities of foreign officials from civil suit. In the context of this case, the brief refutes two unsupported assertions made by the Petitioner. First, Petitioner asserts that "pre-1976 common law immunized a state's officials for their official acts." He relies heavily on this assertion for his conclusion that the FSIA should be read to include former foreign officials notwithstanding the FSIA's omission of any reference to individuals in its definition of the term "foreign state." See 28 U.S.C. § 1603(a). Second, Petitioner claims that "the overwhelming current international authority" provides immunity to former foreign officials sued in their personal capacity for acts of torture and extrajudicial killing. The authorities Petitioner cites, and significant authorities that he omits to cite, do not support these assertions. Non-FSIA sources of foreign official immunity do not provide a blanket shield from personal liability for universally recognized international law violations, even if such violations were committed by individuals who held government positions.

Monday, February 1, 2010

Aviram on Shipping Out Inmates

Hadar Aviram has written an op-ed in the February 1 San Francisco Daily Journal, in which she asks some hard questions about the proposal to move many California prisoners out of the state. She refers to it as the "inmate export enterprise."