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‘Competitiveness’ Has Nothing to Do with it

September 9, 2014 Comments off

‘Competitiveness’ Has Nothing to Do with it
Source: Social Science Research Network

The recent wave of corporate tax inversions has triggered interest in what motivates these tax-driven transactions now. Corporate executives have argued that inversions are explained by an “anti-competitive” U.S. tax environment, as evidenced by the federal corporate tax statutory rate, which is high by international standards, and by its “worldwide” tax base. This paper explains why this competitiveness narrative is largely fact-free, in part by using one recent articulation of that narrative (by Emerson Electric Co.’s former vice-chairman) as a case study.

The recent surge in interest in inversion transactions is explained primarily by U.S. based multinational firms’ increasingly desperate efforts to find a use for their stockpiles of offshore cash (now totaling around $1 trillion), and by a desire to “strip” income from the U.S. domestic tax base through intragroup interest payments to a new parent company located in a lower-taxed foreign jurisdiction. These motives play out against a backdrop of corporate existential despair over the political prospects for tax reform, or for a second “repatriation tax holiday” of the sort offered by Congress in 2004.

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The Trouble with Amicus Facts

September 5, 2014 Comments off

The Trouble with Amicus Facts
Source: Social Science Research Network

The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?) and to answer these questions the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the Court’s decision-making.

The goal of this article is to chip away at that conventional wisdom. The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacy-motivated claims of factual expertise. And the Justices are listening. This article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and the failure of the parties to act as an adequate check. I challenge this process as potentially infecting the Supreme Court’s decisions with unreliable evidence, and I make suggestions for ways to reform it. It is time to rethink the expertise-providing role of the Supreme Court amicus and to refashion this old tool for the new purpose to which it is currently being used.

An Emerging Fact-Finding Discipline? A Conceptual Roadmap for Social Science Methods in Human Rights Advocacy

September 3, 2014 Comments off

An Emerging Fact-Finding Discipline? A Conceptual Roadmap for Social Science Methods in Human Rights Advocacy
Source: Social Science Research Network

Human rights advocates seek to find, interpret, and communicate facts about rights violations amidst some of the most complex social, economic, and political circumstances. To meet these challenges, fact-finders have developed research procedures that increasingly draw on a wide range of interdisciplinary tools and perspectives — with a notable expansion in the use of qualitative and quantitative methods from social science during recent years. Yet there is little discussion of investigative principles, research components, and methodological standards in the human rights field — a reality that often fuels tension and uncertainty over the extent to which social scientific research standards can and should inform evolving fact-finding conventions. As a result, fundamental questions about such standards remain unaddressed. To fill this gap, this chapter offers three core contributions. First, this chapter contextualizes the discussion by presenting data concerning the methods and conventions used by researchers at Amnesty International and Human Rights Watch in the years 2000 and 2010. Second, this chapter interrogates the nature of social scientific inquiry and the degree of overlap between social science research and human rights fact-finding by comparing investigative principles, research components, and methodological standards. These comparisons reveal that social scientific research and human rights fact-finding share many common foundations and suggest that there is great potential for further convergence — especially in relation to methodological transparency. Third, drawing on some of the key distinctions between social science research and human rights fact-finding, this chapter highlights some of the methodological trade-offs that human rights investigators will likely confront when more directly considering social scientific strategies. This chapter ultimately cautions against the creation of a social science of human rights fact-finding, given the unique challenges and irreducible ethical commitments of human rights fact-finding. It instead calls for open and inclusive conversations about the most promising and appropriate standards for the evolving practice of human rights fact-finding.

The US Crime Puzzle: A Comparative Perspective on US Crime & Punishment

August 27, 2014 Comments off

The US Crime Puzzle: A Comparative Perspective on US Crime & Punishment
Source: Social Science Research Network

I generate out-of-sample predictions of US crime and incarceration rates from cross-country regressions. Predictors suggested in the literature explain a large part of the international variation, but fail to explain the US. The US incarceration rate is four times higher than predicted, while US crime rates are at best slightly below the prediction. An explanation of this US crime puzzle requires a low crime-punishment elasticity at US levels of punishment, and/or an extraordinarily high US latent crime rate. I derive joint bounds for the two. Drawing on additional country-specific information, I argue that the most plausible explanation combines both elements.

City Replanning

August 21, 2014 Comments off

City Replanning
Source: Social Science Research Network

In this paper we provide a new defense for one of the most criticized ideas in land use law, that city plans should constitute settled deals about the proper uses of land that should be sticky against subsequent zoning amendments. In the middle of the last century, several prominent scholars argued that courts should find zoning amendments that were contrary to city plans ultra vires. But this idea was largely rejected by courts and scholars alike, with leading figures like Carol Rose, Robert Nelson and Bill Fischel arguing that parcel-specific zoning amendments provide space for the give-and-take of democracy and lead to the efficient amount of development by encouraging negotiations between developers and residents over externalities from new building projects. Their case against plans and in favor of deals suggested that zoning authorities act either as arbiters in land use disputes or as agents for existing residents to encourage negotiated solutions.

We argue, by contrast, that the dismissal of plans was shortsighted and has helped contribute to the excessive strictness of zoning in our richest and most productive cities and regions, which has driven up housing prices excessively and produced outcomes that are economically inefficient and distributively unattractive. In contrast with both planning’s critics and supporters, we argue that plans and comprehensive remappings are best understood as deals. Plans and remappings facilitate trades between city councilmembers who understand the need for new development but refuse to have their neighborhoods be dumping grounds for all new construction. Further, by setting forth what can be constructed as of right, plans reduce the information costs borne by purchasers of land and developers, broadening the market for new construction. We argue that land use law should embrace a version of plans as a procedural tool that packages together policies and sets of zoning changes in a number of neighborhoods simultaneously through procedures that make such packages difficult to unwind.

We conclude by arguing that modern property law scholarship has failed to recognize that real property law is now substantially a public law subject and should be studied using the tools of public law. Leading scholars, most notably Tom Merrill and Henry Smith, have developed sophisticated tools for analyzing the ways in which the common law of property is designed to reduce information costs, which we employ here. But the field has ignored the fact that the common law of property is far less important than it once was as a method for regulating real property ownership and use. Legislatures and administrative agencies at a variety of levels determine most of the rules governing how real property is used and purchased. In order to understand how today’s property law increases or reduces the information costs facing owners, users, potential purchasers and third-parties to property, the field must make an “institutional turn,” studying the likely effects on policy of different institutional arrangements and procedures.

Networks of Military Alliances, Wars, and International Trade

August 20, 2014 Comments off

Networks of Military Alliances, Wars, and International Trade
Source: Social Science Research Network

We investigate the role of networks of military alliances in preventing or encouraging wars between groups of countries. A country is vulnerable to attack if some allied group of countries can defeat the defending country and its (remaining) allies based on their collective military strengths. We show that there do not exist any networks which contain no vulnerable countries and that are stable against the pairwise addition of a new alliance as well as against the unilateral deletion of any existing alliance. We then show that economic benefits from international trade provide incentives to form alliances in ways that restore stability and prevent wars, both by increasing the density of alliances so that countries are less vulnerable and by removing the incentives of countries to attack their allies. In closing, we examine historical data on interstate wars and trade, noting that a dramatic (more than ten-fold) drop in the rate of interstate wars since 1950 is paralleled by the advent of nuclear weapons and an unprecedented growth in trade over the same period, matched with a similar densification and stabilization of alliances, consistent with the model.

Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA

August 19, 2014 Comments off

Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA
Source: Social Science Research Network

The Patient Protection and Affordable Care Act (PPACA) provides tax credits and subsidies for the purchase of qualifying health insurance plans on state-run insurance exchanges. Contrary to expectations, many states are refusing or otherwise failing to create such exchanges. An Internal Revenue Service (IRS) rule purports to extend these tax credits and subsidies to the purchase of health insurance in federal exchanges created in states without exchanges of their own. This rule lacks statutory authority. The text, structure, and history of the Act show that tax credits and subsidies are not available in federally run exchanges. The IRS rule is contrary to congressional intent and cannot be justified on other legal grounds. Because the granting of tax credits can trigger the imposition of fines on millions of individuals and employers, the IRS rule is likely to be challenged in court.

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