Reevaluating Out of Market Efficiencies in Antitrust

2022, Past Issues, Print, Volume 54 (2022) Issue 4 (Winter)
By John M. Yun. Antitrust analyses relegate efficiencies to a second-class status. Not only are they often an after-thought when assessing conduct within a relevant market, but the Supreme Court, in 1963 with its Philadelphia National Bank (PNB) decision, established that efficiencies realized outside of the relevant market construct, that is, “out-of-market” efficiencies, are not even counted. While the PNB case involved a horizontal merger between two Philadelphia banks, many interpret the PNB precedent as establishing a prohibition of out-of-market efficiencies in non-merger cases as well. The precedent and associated out-of-market efficiencies principle have had a profound influence on the enforcement of antitrust laws. Yet, the principle is increasingly out of step with sound assessments of business conduct—particularly in digital markets with network effects. Further, the principle unreasonably handicaps defendants, which…
Read More

IRS Inconsistencies: Section 213 and the Deductibility of Assisted Reproductive Technology

2022, Past Issues, Print, Volume 54 (2022) Issue 4 (Winter)
By Natalie Packard.  The Internal Revenue Code (the “Code”) is a powerful tool that both reflects and shapes public policy. Through its complex set of deductions, tax rates, and credits, the Code creates financial incentives that encourage certain behavior, such as buying a house or donating to charity. While the Treasury Department writes the Code, the Internal Revenue Service (“IRS”) performs the essential role of interpreting its language, hopefully in a way that reflects taxpayers’ values. Thus, as values change, the IRS’s application of the Code or the Code itself should change. Unfortunately, both Congress and the IRS can be slow to accept evolving values. As a result, many Code provisions preserve outdated and inaccurate assumptions about families, resulting in a “landscape of discrimination hidden within the tax code.”  Section…
Read More

Just Taxation of Crime: Should the Commission of Crime Change One’s Tax Liability?

2022, Past Issues, Print, Volume 54 (2022) Issue 4 (Winter)
By Jeesoo Nam.  The tax law treats criminals differently from non-criminals. Should it? Under the public policy doctrine, for example, various tax deductions are disallowed if they are closely tied to criminal activity. Criminal activity is, in multiple ways, tax disadvantaged compared to non-criminal activity.  This Article considers a variety of possible justifications. (1) The tax disadvantage provides an incentive not to commit crime. (2) The tax disadvantage helps to bring deserved punishment to the criminal. (3) Criminals have given up their right not to be taxed. (4) Criminals have taken an unfair advantage and so must be stripped of that unfair advantage. (5) Criminals deserve to bear the costs that they culpably and wrongfully created.  This Article argues in favor of (5) as the best theory of taxing crime…
Read More

Indian Embryos as “Indian Children?”

2022, Past Issues, Print, Volume 54 (2022) Issue 4 (Winter)
By Noah Goldenberg.  A couple—Mike and Megan—get married and buy a house in Phoenix, Arizona. After an annual checkup, Mike is diagnosed with testicular cancer. His doctors believe that with surgery and chemotherapy Mike will more than likely survive his diagnosis. However, chemotherapy can result in both temporary and permanent infertility.  While Mike always wanted children, Megan has never been sure. Mike’s diagnosis forces him and Megan to decide. Together, they choose to freeze fertilized embryos in case they want to have children later . . . Full Article.
Read More

Cruel and Unusual Youth Confinement

2022, Past Issues, Print, Volume 54 (2022) Issue 4 (Winter)
By Cara H. Drinan.  In a series of cases known as the Miller trilogy, the Supreme Court recognized that children are both less culpable and more amenable to rehabilitation than adults, and that those differences must be considered at sentencing. Relying on the principle that kids are different for constitutional purposes, the Court abolished capital punishment for minors and significantly limited the extent to which minors can be subject to life-without-parole (“LWOP”) terms. Equally important, the Miller trilogy was predicated on the concept of inherent human dignity, and it recognized the youthful prisoner’s need for “hope” and “reconciliation with society.” While scholars have grappled with the implementation of these cases for nearly a decade, there has been no comprehensive analysis of what these cases mean for conditions of confinement. That…
Read More

The Private Law of Stablecoins

2022, Past Issues, Print, Volume 54 (2022) Issue 4 (Winter)
By Kara Bruce, Christopher K. Odinet & Andrea Tosato.  Stablecoins are one of the cornerstones of the crypto world. They’ve attracted significant attention from major players over the past few years, ranging from Wall Street to kitchen-table investors, and even the White House. As a less volatile alternative to crypto-assets like bitcoin, stablecoins have the potential to change the way we make payments, unlock the groundwork needed for more blockchain-based applications, and even reorient the economy toward private money. But how stable are these atablecoins, really? Can they be relied upon in the way their many proponents claim? And how much of the popular beliefs about stablecoins match their realities? That’s where we come in. In this Article, we show, for the first time, just how unreliable and unstable this…
Read More

#Fintok and Financial Regulation

2022, Past Issues, Print, Volume 54 (2022) Issue 4 (Winter)
By Nikita Aggarwal, D. Bondy Valdovinos Kaye & Christopher Odinet. Social media platforms are becoming an increasingly important site for consumer finance. This phenomenon is referred to as “FinTok,” a reference to the “#fintok” hashtag that often identifies financial content on TikTok, a popular social media platform. This Essay examines the new methodological possibilities for consumer financial regulation due to FinTok. It argues that FinTok content offers a novel and valuable source of data for identifying emerging fintech trends and associated consumer risks. As such, financial regulators should use FinTok content analysis—and social media content analysis more broadly—as an additional method for the supervision and regulation of consumer financial markets. This Essay test-drives this method using audiovisual content from TikTok in which consumers discuss their experience with “buy now, pay…
Read More

Climate Change, Federal Paralysis, and the State Attorneys General: The Case for Establishing Climate Preservation Units

2022, Past Issues, Print, Volume 54 (2022) Issue 3 (Fall)
By Dewey Warner.  “Our planet is a lonely speck in the great enveloping cosmic dark. In our obscurity, in all this vastness, there is no hint that help will come from elsewhere to save us from ourselves.” Less than three decades after Carl Sagan penned this warning, the responsibility “to preserve and cherish . . . the only home we’ve ever known” is illuminated in stark and tragic fashion by the effects of a rapidly changing climate. Extreme weather events are more frequent and severe. A mass extinction is underway. Tens of millions face famine. A heightened risk of disease threatens the entire human population. The phrase “climate refugees” has entered the popular lexicon. Full Article.
Read More

The Psychology of Pollution Control

2022, Past Issues, Print, Volume 54 (2022) Issue 3 (Fall)
By Arden Rowell and Kenworthey Bilz. Pollution control is fundamentally affected by how people evaluate the harm of pollution. In many legal contexts, psychological processes contribute to an intuitive undervaluation of the harms of pollution, particularly where those harms are diffuse in space and time, complex in character, and/or accrue to nonhuman stakeholders. Psychological processes that impact people’s perception, understanding, and response to pollution can therefore affect how—and how effectively—pollution is controlled. Understanding those psychological processes can thus pay explanatory and prescriptive dividends, including by informing how pollutants are defined, when pollution is tolerated, and how pollution control instruments operate.Full Article. 
Read More

Advancing Water Security in Colonias

2022, Past Issues, Print, Volume 54 (2022) Issue 3 (Fall)
By Rhett Larson & Dylan Hendel. Colonias are small, generally unincorporated communities of predominantly Hispanic residents located near the U.S./Mexico border that suffer disproportionately from water insecurity associated with inadequate drinking water quality and reliability and flooding risks. Many of the water insecurity challenges facing colonias’ residents stem from inadequacies in water law and environmental law. However, many legal obstacles to achieving water security in colonias stem from seemingly unrelated legal challenges, including voting rights, land title and land use issues, and lack of access to effective legal assistance, particularly in securing support from existing federal programs. Each of the four border states–Texas, New Mexico, Arizona, and California–have dealt with water insecurity challenges facing colonias in a variety of ways. In this article, we explore those challenges facing colonias’ residents in…
Read More