Self-employed individuals who operate through a business entity can often dictate how much employment tax they pay, if any. That’s because the rules permit them to control whether their earnings count as labor income – which is subject to employment tax – or the returns on any capital invested in their business – which is not subject to the tax. The GILTI rules enacted as part of the 2017 Tax Act assume that capital investments generally earn a 10 percent annual rate of return. That same assumption can be used to allocate the earnings of a self-employed individual between the income from their labor and the return on any capital invested in the business. Such a mandatory rule would eliminate the abusive practices that self-employed individuals currently utilize. It would also raise considerable revenue while permitting the entire tax system to operate in a more consistent and equitable way.
Copyright litigation involving hit songs like Robin Thicke’s “Blurred Lines,” Justin Bieber and Usher’s “Somebody to Love,” and Led Zeppelin’s “Stairway to Heaven” caused many in the music industry to vex over the line between homage and infringement. When are the two works too similar? To many courts and scholars, substantial similarity is “bizarre,” “ad hoc,” and “a virtual black hole in copyright jurisprudence.” Every creative work borrows some inspiration from other works, whether copyrighted or not. Judging when defendants appropriated too much is an inherently opaque and subjective enterprise, but unraveling its mysteries is critical for the flourishing of diverse, creative ecosystems like architecture, literature, movies, and software. The scholarly debate has focused on doctrinal tests and litigation venues without accounting for factors actually impacting case outcomes and those that do not. Unaddressed, plaintiffs will continue to face abysmal odds without really knowing why. This Article reveals potentially malignant features in copyright law that may inhibit the growth of creativity and technology, and other features that are conventionally thought to impact case outcomes but are surprisingly irrelevant. This Article’s most important finding is substantial similarity’s silent death through pretrial motions and the prevalence of non-rival defendants. This Article also uncovers the irrelevance of willful infringement and the nature of the copyrighted works at issue to case outcomes. Beyond copyright law, this Article underscores the consequences of shunting jury trials, affirms how empirical research realigns theoretical work to real-world outcomes, and demonstrates how cross-fertilization within copyright doctrines and beyond copyright law is critical to addressing seemingly intractable doctrinal puzzles like substantial similarity.
The Tax Cuts and Jobs Act of 2017 introduced the first ever excise tax imposed on the investment income of university endowments. While it is a relatively small tax, this new law is a first step towards the exploration of taxing non-profit entities on the vast sums of wealth they hold in their endowments. In this Essay I take the new tax as a starting place for investigating the justification for tax exemption for universities and thinking through the consequences of changing our approach, both in the form of the new excise tax and possible alternatives. There remain reasons to be skeptical both about the design of the current tax and its ability to withstand the political efforts of the powerful set of universities who will be subject to it. Nonetheless, this new tax opens the door to a discussion of whether it is time to treat universities’ endowments more like the private equity funds they increasingly resemble.
In Furman v. Georgia (1972), the Supreme Court struck down the Georgia and Texas death penalty statutes, thereby calling into question the validity of every other state death penalty statute. In their concurring opinions, Justices Brennan and Marshall expressed the view that, given society’s gradual abandonment of the death penalty, capital punishment violated the Eighth Amendment’s prohibition of “cruel and unusual punishments.” Justice Powell and three other justices dissented, arguing that the Court had misread the state of the law regarding society’s acceptance of the death penalty. Four years after Furman, in a quintet of cases, the Court held that the death penalty could be imposed under properly drafted statutes, upholding three of the challenged statutes and striking down the other two. Seven of the nine justices, in separate concurring and dissenting opinions in Gregg v. Georgia (1976) and Roberts v. Louisiana (1976), agreed that, in Furman, Justices Brennan and Marshall had misjudged America’s view of the death penalty. They noted that, since Furman, at least thirty-five States, as well as Congress, had enacted new statutes authorizing the death penalty. Those developments undercut the assumptions upon which the abolitionists’ argument rested and demonstrated that a large proportion of American society continued to regard the infliction of the death penalty as “an appropriate and necessary sanction.” This article argues that, just as Justices Brennan and Marshall misread the “signs of the times” regarding the death penalty in Furman, so, too, did the Supreme Court in Roe v. Wade (1973), when it effectively struck down the abortion statutes of all fifty States. Roe placed great weight on the facts that seventeen States had liberalized their abortion laws and that leading professional organizations favored the repeal or substantial revision of state abortion laws. Roe, however, ignored that fact that the other thirty-three States had not liberalized their statutes and that, in thirty-one of those States, bills to relax or eliminate restrictions on abortion were introduced, but never enacted. Of even greater significance is that, in the almost fifty years since Roe was decided, the overwhelming majority of state legislatures have rejected Roe and its refusal to recognize that unborn human life is worth of protection. States have passed resolutions calling for constitutional amendments to overturn Roe, retained pre-Roe laws prohibiting abortion, enacted post-Roe laws that would prohibit abortion upon the overruling of Roe, enacted a myriad of statutes that prohibit abortions before viability and extended the protection of the law to unborn children in a variety of areas outside the context of abortion, including criminal law, tort law and health care law. The article submits that, just as the Court had to revisit the issue of the constitutionality of the death penalty in light of society’s reaction to Furman, so, too, the Court should revisit the issue of abortion in light of the country’s massive repudiation of Roe.
This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of “informally amending” the text. We demonstrate this by examining four written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emerging from the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the “revolutionary” constitutions of the United States and India, and the “adaptive establishmentarian” constitutions of Canada and Australia. In this way, we show that judicial informal amendment changes constitutional meaning in both revolutionary and adaptive settings. We conclude that whatever the origins of a federal democratic constitution, be it revolutionary or adaptive establishmentarian, and whatever the background of the judges and the text with which they work, in the absence of formal amendment, judges use an image of the constitution to give and to change the meaning of a written text over time. This allows a constitution to adapt to changing social, economic, and political conditions where formal amendment, for whatever reason, proves difficult. But, in some cases, it might also leave a federal democracy with a constitution which the Framers did not intend. Whatever the outcome, though, the judges play a central role in the evolution of constitutional meaning over time, for good or for ill.
There has been an ongoing debate regarding police-on-Black violence since the dawn of the United States police force. At every stage, the criminal justice system has had a monumental impact on the plight of the Black American community. The historical roots of racism within the criminal justice system have had adverse effects on the Black American psyche. Emerging research suggests that the upsurge in reporting police-on-Black violence—including videos shot from pedestrian camera phones and uploaded to multimedia platforms and historical accounts of the agonizing treatment Black Americans have experienced beginning with Slave Patrols—has affected individualized behavior during interactions with police officers. This is crucial because courts analyze an individual's behavior at the sight of or in the presence of police officers when deciding whether or not a police officer had the requisite reasonable suspicion to stop an individual. Courts consider an individual's nervous or evasive behavior as a factor in favor of finding a police officer had justifiable reasonable suspicion to perform a stop. In doing so, courts use a raceneutral approach, which undoubtedly discounts the Black American historical experience. This race-neutral approach ignores the specific history of racism against Black Americans by failing to explore how the sordid history of racialized terror in the criminal justice system affects individualized behavior. This article explores how the Supreme Court's creation of the reasonable suspicion standard facilitates, justifies, and perpetuates police violence against Black Americans. This article argues that this interpretation of the Fourth Amendment enables officers to manifest implicit biases and target Black Americans with little or no justification. The result is the current state of affairs, including unwarranted racial disparities at every stage of the criminal justice process. Accordingly, this article suggests that instead of using a race-neutral analysis of the law, the Supreme Court should recognize the significance of the Black experience in the United States and implement the use of race as a factor in analyzing whether or not an individual's behavior [Vol. 48: 223, 2021] Dear Courts PEPPERDINE LAW REVIEW 224 expressed enough nervousness or evasiveness to constitute justifiable reasonable suspicion for a police officer to perform a stop. [Vol. 48: 223, 2021] Dear Courts PEPPERDINE LAW REVIEW 225 TABLE OF CONTENTS
