Corporations, Society, and the State: A Defense of the Corporate Tax

This Article attempts to provide the first comprehensive rationale for defending the current corporate income tax. It argues that the usual reasons given for the tax (primarily as an indirect way of taxing shareholders, or alternatively as a form of benefit tax) are inadequate. It then explains what the original rationale to adopt this tax was in 1909, namely to regulate managerial power, and that this rationale stems from the “real” view of the corporation, which was the dominant view throughout the many transformations underwent by the corporate form from Roman times to the present. Turning to normative argument, the Article then argues that the regulatory rationale given for taxing corporations in 1909 is still valid, since similar social conditions continue to exist, and in fact is strengthened by the rise of multinational enterprises. Finally, the Article argues that this rationale is necessary from a normative perspective to support the fight against the two crucial current threats to the corporate tax posed by the corporate tax shelter and tax competition phenomena.

Under the Empirical Radar: An Initial Expressive Law Analysis of the ADA

While enacting the Americans with Disabilities Act (ADA), Senators Harkin and Kennedy each proclaimed its passage as an “emancipation proclamation” for people with disabilities. Fourteen years later, one wonders just how much (if at all) the disabled have been emancipated. One way to gauge whether social and economic empowerment has increased for people with disabilities after the ADA’s passage, is to examine their employment experiences. To date, empirical studies of post-ADA disabled employees’ labor market participation, are less than encouraging. Notably, two well-publicized empirical studies of the relative post-ADA employment effects on workers with disabilities find a reduction in their employment rate, concurrent with either a neutral or beneficial effect on their wages. These studies have sparked a growing debate among scholars who either support or challenge their findings. Nonetheless, even those economists seeking to explain the available data within the context of broader economic effects, concede that post-ADA disability-related employment (broadly defined) has not dramatically improved. At the same time, plaintiffs asserting ADA Title I employment discrimination claims in the federal courts have a lower win-loss rate than any other group excepting prisoner rights litigants. Specifically, an American Bar Association report found that employers prevailed in more than 92 percent of Title I cases between 1992 and 1997. Although a number of reasons may contribute to this phenomenon, the overall impression is dire. Thus, from a purely qualitative perspective, empirical analysis indicates that the ADA is not fulfilling its promise of empowering workers with disabilities. 

By contrast, David Engle & Frank Munger’s thoughtful book, Rights of Inclusion: Law and Identity in the Life Stories of Americans with Disabilities (Rights of Inclusion), applies a non-economic metric to the question of whether the ADA is “working,” and in so doing provides an alternative appraisal of the statute’s efficacy. Utilizing qualitative analysis, Engle & Munger interviewed workers with disabilities who had never asserted disability-related employment discrimination claims. They conclude that the ADA’s mere presence has changed disabled persons’ identities by creating a vision of work-capable people who can be successful and vibrant employees if given the opportunity, including proper accommodations, to demonstrate these abilities. At the same time, Engle & Munger argue that the putative employment rights embodied in the ADA can only be brought to fruition if people with disabilities understand and embrace the statute’s normative aspirations. Their assessment of the ADA, as well as their subsequent proposal for a “new theory” of rights that can properly encompass the dynamics of disability identity formation, are therefore both internal, and contextual, to those individuals whose life stories are presented in Rights of Inclusion. 

This Essay seeks to bridge the inquiries made by the two normally exclusive disciplines of economics (the external, quantitative empirical radar) and sociology (the internal, qualitative assessment of rights discourse), by presenting a third path: an initial expressive law analysis of the ADA (examining the phenomena that exist beneath the empirical radar). That approach considers how (external) law can influence (internal) individual behavior by altering broader social norms, an approach not addressed in Rights of Inclusion. In considering those precepts, I am particularly interested in building on the expressive law gloss presented in Alex Geisinger’s “belief change” theory, which identifies and models a process through which regulations can affect norms and preferences. 

Part I sets forth the disability life stories chronicled by Engle & Munger, and the conclusions they draw from those experiences about the nature of identity and rights theory. Next, Part II describes the general goals of expressive law scholarship, and adumbrates Alex Geisinger’s “belief change” theory. Part III depicts existing socio-legal norms on the disabled, and the aspirations contained in the ADA. Part IV then sets forth a preliminary expressive law analysis of the ADA. The Essay concludes by reinterpreting, from an expressive law perspective, some of the disability life stories portrayed in Rights of Inclusion.

Saving this Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Staggered, Nonrenewable Eighteen-Year Terms

Motherhood. Apple pie. Life tenure for United States Supreme Court justices. What do these three things have in common? An attack on any one of these “sacred cows” has come to be seen by many as an attack on America itself. But why should it be so for life tenure? Certainly, Alexander Hamilton and the other Founding Fathers intended the federal judiciary to be independent of and protected from the influences of the political branches of government, and life tenure was a vehicle for such an effort. But life tenure was by no means the only option, and, as this Note argues, not even the best one.

Life tenure for Supreme Court justices may have helped to insulate the robed tribunal from political pressures, but it has created considerable problems of its own. First, as justices have become more personally invested in their decisions, they have become more and more loathe to allow a president with opposing viewpoints to name their successors. The result has been strategic retirements—carefully timed departures—that allow presidents to fill vacancies with similarly like-minded judges. The phenomenon of strategic retirements has become increasingly worse as the Court has entered the “culture wars” of the post-Vietnam War era. Second, the present system creates incentives that reward presidents who name young nominees to the Court. The current system gives an improper incentive to a president to nominate a young candidate for the Court because a younger nominee generally ensures the perpetuation of the president’s particular sociopolitical vision over a longer tenure. Finally, the current system creates an utterly random distribution of Supreme Court appointments among presidents. For example, something is amiss under the present system when one president can, by random chance, have three, four, or even nine opportunities to appoint a justice to the Court in one presidential term, while another president might not have a single nomination. It is potentially troubling for one president to enjoy the fortuitous opportunity to pack the Court when his successor may not have the opportunity to nominate anyone.

The best way to address these three problems bred by life tenure is to replace life tenure on the Supreme Court with a system of staggered, nonrenewable eighteen-year terms. Ending life tenure would require a constitutional amendment. The amendment proposed by this Note would eliminate the justices’ ability to strategically retire, temper the incentives for presidents to nominate young justices to the Court at the expense of older candidates, and guarantee each president two nominations per term. Because justices could not be reappointed, the proposed amendment would arguably leave them with as much independence as they have under the current system. Moreover, even when a justice’s term on the Court has expired, nothing would prevent him or her from continuing to serve on a lower federal court of his or her choosing for life. The amendment proposed by this Note ensures the protection of Hamilton’s goal of an independent judiciary insulated from political pressures while preventing justices and presidents from playing political games of their own with the nomination process.