Multinational corporations use intellectual property (IP) to avoid taxes on a massive scale, by transferring their IP to tax havens for artificially low prices. Economists estimate that this abuse costs the U.S. Treasury as much as $90 billion each year. Yet tax policymakers and scholars have been unable to devise feasible tax-law solutions to this problem. This Article introduces an entirely new...
Cooperative Federalism and Marijuana Regulation
The struggle over marijuana regulation is one of the most important federalism conflicts in a generation. The ongoing clash of federal and state marijuana laws forces us to consider the preemptive power of federal drug laws and the appropriate roles for state and federal governments in setting drug policy. This conflict also creates debilitating instability and uncertainty on the ground in those...
Offshoring the Army: Migrant Workers and the U.S. Military
Long-running debates over military privatization overlook one important fact: The U.S. military’s post-2001 contractor workforce is composed largely of migrants imported from impoverished countries. This Article argues that these Third Country National (TCN) workers—so called because they are neither American nor local—are bereft of the effective protections of American law, local regimes, or...
Inmates’ Need for Federally Funded Lawyers: How the Prison Litigation Reform Act, Casey, and Iqbal Combine With Implicit Bias to Eviscerate Inmate Civil Rights
The United States incarcerates a larger percentage of our population than any other country. Minority populations make up a substantially disproportionate percentage of those incarcerated. For a variety of reasons, violence perpetrated against incarcerated persons, including sexual assault, is endemic and inmates have very limited opportunities to protect themselves. The state has an obligation...
Proportional Voting Through the Elections Clause: Protecting Voting Rights Post-Shelby County
The Voting Rights Act passed fifty years ago and its success at curbing electoral discrimination is unquestioned. Section 5’s preclearance, which requires specific jurisdictions to seek federal preapproval of election laws, was central to this success. Yet the Supreme Court, in Shelby County v. Holder, invalidated the formula that selected preclearance jurisdictions. Without the formula...
How Hall v. Florida Transforms the Supreme Court’s Eighth Amendment Evolving Standards of Decency Analysis
The U.S. Supreme Court’s recent decision in Hall v. Florida may prod states to more meaningfully enforce the protection of individuals with intellectual disabilities that the Court originally set forth in Atkins v. Virginia. But the majority opinion’s reliance on the views and practices of medical experts and psychiatric professionals has overshadowed critical Eighth Amendment doctrinal...
A Critique of Justice Antonin Scalia’s Originalist Defense of Brown v. Board of Education
How would Justice Antonin Scalia, an avowed and prominent originalist, have voted if he were a member of the United States Supreme Court at the time of the Court’s seminal 1954 decision in Brown v. Board of Education? In a public appearance Justice Scalia stated that he would have voted with Justice John Marshall Harlan, the lone dissenter from the Court’s 1896 validation of the separate-but...
Probabilistic Reasoning in Navarette v. California
In Navarette v. California, the U.S. Supreme Court, in a 5–4 decision au-thored by Justice Thomas, rejected a Fourth Amendment challenge to an investi-gative traffic stop on the grounds that a prior 911 call, in which the caller reported that she had been run off the road by a pickup truck, gave rise to reasonable suspi-cion that the driver of the truck was intoxicated. Writing for the dissent...