Michigan Public Law: Law Faculty Papers (Topic)最新文献

{"title":"Fascism and Monopoly","authors":"D. Crane","doi":"10.36644/MLR.118.7.FASCISM","DOIUrl":"https://doi.org/10.36644/MLR.118.7.FASCISM","url":null,"abstract":"The recent revival of political interest in antitrust has resurfaced a longstanding debate about the role of industrial concentration and monopoly in enabling Hitler’s rise to power and the Third Reich’s wars of aggression. Proponents of stronger antitrust enforcement argue that monopolies and cartels brought the Nazis to power and warn that rising concentration in the American economy could similarly threaten democracy. Skeptics demur, observing that German big business largely opposed Hitler during the crucial years of his ascent. Drawing on business histories and archival material from the U.S. Office of Military Government’s Decartelization Unit, this Article assesses the historical record on the role of industrial concentration in facilitating Nazism. It finds compelling evidence that, while German big business principally did not support Hitler before he won the Chancellorship in 1933, the extreme concentration of market power during the Weimar period enabled Hitler to seize and consolidate totalitarian power through a variety of mechanisms. Hence, the German experience with Nazism lends support to the idea that extreme concentration of economic power enables extreme concentration of political power. However, most of the conduct that created the radical economic concentration of the Weimar period would be unlawful under contemporary antitrust principles, which casts doubt on claims that a significant shift in antitrust enforcement is necessary to forestall anti-democratic forces.","PeriodicalId":291220,"journal":{"name":"Michigan Public Law: Law Faculty Papers (Topic)","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123955466","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Does Customary International Tax Law Exist?","authors":"R. Avi-Yonah","doi":"10.2139/SSRN.3382203","DOIUrl":"https://doi.org/10.2139/SSRN.3382203","url":null,"abstract":"Customary international law is law that “results from a general and consistent practice of states followed by them from a sense of legal obligation.” “International agreements create law for states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted.” Does customary international law (CIL) exist in tax? There are over 3,000 bilateral tax treaties, and they are about 80% identical to each other, but do they create CIL that binds in the absence of a binding treaty, like for example the Vienna Convention on the Law of Treaties binds the US, which has not ratified it? This chapter will argue that the answer is yes, using four examples: jurisdiction to tax, the permanent establishment (PE) threshold, the arm’s length standard, and non-discrimination.","PeriodicalId":291220,"journal":{"name":"Michigan Public Law: Law Faculty Papers (Topic)","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129811692","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Slicing and Dicing: The Structural Problems of the Tax Reform Framework","authors":"R. Avi-Yonah","doi":"10.2139/ssrn.3048375","DOIUrl":"https://doi.org/10.2139/ssrn.3048375","url":null,"abstract":"The “Unified Framework for Fixing Our Broken Tax Code” (the “Framework”) released by the “Big Six” group of Treasury, White House and Congressional leaders on September 27 has been the focus of a lot of commentary. Most of the comments have focused on the distributive aspects of the plan and on the proposed rate structure, as well as the impact on revenues and the federal deficit. In this comment, I plan to focus instead on the structural aspects of the plan and in particular on the various new lines that it draws, because these are more likely to be lasting.","PeriodicalId":291220,"journal":{"name":"Michigan Public Law: Law Faculty Papers (Topic)","volume":"149 ","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120931198","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Fiduciary State and Private Ordering","authors":"M. Radin","doi":"10.1093/acprof:oso/9780198779193.003.0014","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780198779193.003.0014","url":null,"abstract":"In this chapter, I argue that by allowing firms to foreclose access to the courts and legal remedies through boilerplate rights deletions, the American legal system is failing civil society, and its legal institutions are flouting their fiduciary obligation to the polity and to the American people. In addition, I suggest that firms have an obligation not to deploy boilerplate so as to “defect” unilaterally from the legal infrastructure that makes it possible for firms to function in civil society.","PeriodicalId":291220,"journal":{"name":"Michigan Public Law: Law Faculty Papers (Topic)","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121863114","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Case for a Destination-Based Corporate Tax","authors":"R. Avi-Yonah","doi":"10.2139/SSRN.2634391","DOIUrl":"https://doi.org/10.2139/SSRN.2634391","url":null,"abstract":"In 1993, I published a paper advocating a destination-based corporate income tax (DBCT) (Avi-Yonah, 1993). Under DBCT, multinational enterprises (MNEs) would be treated as unitary businesses and taxed based on where they sell their goods or services, i.e., on a destination basis rather than (as in current corporate taxes) primarily on an origin basis. I have subsequently elaborated on this proposal with Kim Clausing and Mike Durst (Avi-Yonah, Clausing and Durst, 2009).In recent years, DBCT has attracted some support by economists, such as Alan Auerbach and Mike Devereaux (Auerbach, Devereux and Simpson, 2008; Devereux and de la Feria, 2014). While the economists tend to advocate a cash flow DBCT, i.e., a corporate tax that is more consumption than income based because MNEs will be allowed to expense capital outlays, both types of taxes apply to corporate rents in the same way. Moreover, the economists’ proposals raise similar issues as mine, e.g., in regard to compatibility with treaties or with WTO rules.These proposals have attracted significant critiques, e.g., from Rosanne Altshuler, Harry Grubert and Susan Morse (Altshuler and Grubert, 2010; Morse, 2010). I would like to use this opportunity to restate the case for DBCT and reply to some of the common objections to it.","PeriodicalId":291220,"journal":{"name":"Michigan Public Law: Law Faculty Papers (Topic)","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-07-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126517708","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Beyond Carve-Outs and Toward Reliance: A Normative Framework for Cross-Border Insolvency Choice of Law","authors":"John A. E. Pottow","doi":"10.2139/ssrn.2591985","DOIUrl":"https://doi.org/10.2139/ssrn.2591985","url":null,"abstract":"Choice of law in cross-border insolvency is gaining increased attention, not just by lowly academics but by policymakers who actually matter. I argue it is time to bring some normative guidance to the burgeoning reform efforts. At the highest level of theoretical purity, universalism seems to have (rightly) captured the biggest following. But it has been scaled back by what I call “second-order” considerations of pragmatics to its lesser, modified form. I take that retrenchment as necessary and note how it has been deployed through a carveout-based regime of subject-specific exceptions from lex fori concursus. Given that lay of the land, I suggest a “third-order” normative framework for moving beyond discrete subject matter carveouts and instead propose a reorientation toward a normative principle to justify the necessary carveouts of modified universalism: actual, defensive litigant reliance should be what warrants departure from COMI insolvency law. I contend that this new framework will serve a desirable cabining effect on territorialism by reserving the application of non-COMI law for circumstances when it is truly “required.”","PeriodicalId":291220,"journal":{"name":"Michigan Public Law: Law Faculty Papers (Topic)","volume":"1962 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131325714","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Medicine as a Public Calling","authors":"Nicholas Bagley","doi":"10.36644/mlr.114.1.medicine","DOIUrl":"https://doi.org/10.36644/mlr.114.1.medicine","url":null,"abstract":"The debate over how to tame private medical spending tends to pit advocates of government-provided insurance--a single-payer scheme--against those who would prefer to harness market forces to hold down costs. When it is mentioned at all, the possibility of regulating the medical industry as a public utility is brusquely dismissed as anathema to the American regulatory tradition. This dismissiveness, however, rests on a failure to appreciate just how deeply the public utility model shaped health law in the twentieth century-- and how it continues to shape health law today. Closer economic regulation of the medical industry may or may not be prudent, but it is by no means incompatible with our governing institutions and political culture. Indeed, the durability of such regulation suggests that the modern embrace of market-based approaches in the medical industry may be more ephemeral than it seems.","PeriodicalId":291220,"journal":{"name":"Michigan Public Law: Law Faculty Papers (Topic)","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125591593","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Just Say No: Corporate Taxation and Corporate Social Responsibility","authors":"R. Avi-Yonah","doi":"10.2139/SSRN.2423045","DOIUrl":"https://doi.org/10.2139/SSRN.2423045","url":null,"abstract":"This article will address the question whether publicly traded US corporations owe a duty to their shareholders to minimize their corporate tax burden in any way that they may be able to get away with from a purely legal perspective. First, however, to render the subsequent discussion a bit more concrete, I will describe a recently unveiled case study of corporate tax aggressiveness.","PeriodicalId":291220,"journal":{"name":"Michigan Public Law: Law Faculty Papers (Topic)","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123551749","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Devil in the Details: Reflections on the Tax Reform Act of 2014","authors":"R. Avi-Yonah","doi":"10.2139/ssrn.2403180","DOIUrl":"https://doi.org/10.2139/ssrn.2403180","url":null,"abstract":"The Discussion Draft of the “Tax Reform Act of 2014” (TRA14) released by US House Committee on Ways and Means Chairman Dave Camp (R-MI) on February 26, 2014 represents a major effort for fundamental and far reaching reform of US tax law. Unfortunately, while many parts of the proposal seem quite sensible as an effort to bring back the “spirit of 1986”, the international tax reform proposals are deeply flawed and based on obsolete assumptions on the world facing US multinationals in 2014.Overall, TRA14 represents a welcome effort to propose a revenue neutral combination of base broadening and rate cutting. TRA14 envisages three individual rates of 10%, 25% and 35% and a corporate rate of 25%. This rate structure is quite sensible, and if it can be achieved in a revenue neutral fashion that is an added advantage. However, the international tax proposals are based on the assumption that because most other OECD countries have adopted a limited version of territoriality, i.e., a “participation exemption” for dividends out of the active income of Controlled Foreign Corporations (CFCs), the US must follow suit to preserve the competitiveness of US based MNEs. But this assumption is wrong, for three reasons. First, the empirical data indicate that under current law US based MNEs do not face a competitive disadvantage despite the fact that they are nominally taxed on a worldwide basis without a participation exemption. Second, the OECD BEPS project suggests that the effective tax rates of foreign MNEs are headed up, not down. Third and most importantly, reducing the US corporate tax can be done without putting US-based MNEs at a competitive disadvantage even if deferral were completely eliminated, and this has the added advantage of eliminating both lock out (the main problem the participation exemption is designed to solve) and the incentive to shift profits out of the US (which this version of TRA 14 does little to address).This paper will discuss these points and conclude that as far as the international proposals are concerned it would be better to go back to the drawing board and start from scratch with a simple proposal of full inclusion at whatever corporate rate is judged to be similar to the effective rates paid by foreign-based MNEs.","PeriodicalId":291220,"journal":{"name":"Michigan Public Law: Law Faculty Papers (Topic)","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124551290","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Unfriendly Unilateralism","authors":"Monica Hakimi","doi":"10.2139/ssrn.2356263","DOIUrl":"https://doi.org/10.2139/ssrn.2356263","url":null,"abstract":"This Article examines a category of conduct that I call “unfriendly unilateralism.” One state deprives another of a benefit (unfriendly) and, in some cases, strays from its own obligations (noncompliant), outside any structured international process (unilateral). Such conduct troubles many international lawyers because it looks more like the nastiness of power politics than like the order and stability of law. Worse, states can abuse the conduct to undercut the law. Nevertheless, international law tolerates unfriendly unilateralism for enforcement. A victim state may use unfriendly unilateralism against a scofflaw in order to restore the legal arrangement that existed before the breach. Unfriendly unilateralism is tolerated here, despite its unsavory attributes, because the formal processes for enforcing international law are often deficient. Unfriendly unilateralism can compensate for that procedural deficiency and help make the law effective. This Article argues that unfriendly unilateralism can play a similarly vital role in lawmaking. The Article makes both a positive and a normative claim. The positive claim is that, in practice, states use unfriendly unilateralism not only to enforce but also to help generate law. Unfriendly unilateralism variously helps create new norms, prevent the erosion of existing norms, reconcile competing objectives, and strengthen or recalibrate regimes. Unfriendly unilateralism sometimes performs these functions even when the conduct itself is unlawful — that is, when the conduct is noncompliant and unexcused for enforcement. The Article’s normative claim is that such unchecked and even unlawful exercises of state power can be good for international law. Lawmaking allows the legal order to stay relevant and adapt to change. However, the formal processes for making international law, like those for enforcing it, can be deficient. Unfriendly unilateralism can compensate for that procedural deficiency and help instigate or support collective decisions.","PeriodicalId":291220,"journal":{"name":"Michigan Public Law: Law Faculty Papers (Topic)","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116419213","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}