The relation between taxation and risk-taking has occupied an important place in tax scholarship in recent years. To date the focus has been on the domestic, or closed economy, setting. This Article expands existing analysis to the open economy setting, with specific emphasis on the distributional consequences of the taxation of risky cross-border investments. The Article describes a phenomenon, labeled “divergence,” under which common international tax instruments result in the systematic splitting of upside and downside risk across jurisdictions. Divergence can, in turn, be split into “public divergence” and “private divergence,” depending upon whether the excess downside risk is borne by the fisc or by the taxpayer. The rate of divergence is a function of source jurisdiction tax policy, but the split between public and private divergence is a function of residence jurisdiction method of double tax relief. Divergence is both quantitatively substantial (approximately $10.6 billion for a sample year with respect to U.S. outbound investment) and normatively problematic from the standpoint of political legitimacy. The political economy of divergence, however, suggests that it is likely to continue as a pervasive feature of cross-border taxation. The Article accordingly concludes with a discussion of how divergence should shape policy-making in the following important areas: domestic loss offsets, tax subsidies, transfer pricing, double tax relief, and foreign aid.
Volume 92
An Argument for the Partial Abrogation of Federally-Recognized Indian Tribes’ Sovereign Power Over Citizenship
For many Native Americans, membership in a federally-recognized Indian tribe represents an affiliation as fundamental as American citizenship to Americans generally. Tribes are not only crucial conduits of economic and social services, but also tangible and vital connections to ancient racial and national affiliations. Yet as important as they are, in most tribes these connections may be summarily severed without appeal.
Unlike either the state or federal governments, most Indian tribes retain the right to disenfranchise members from specific benefits, or simply to disenroll (forcibly expatriate) and banish from tribal lands even native born members. Federal case law suggests that these abuses are almost wholly irremediable both within the tribe and in the federal courts. Despite strong arguments to the contrary, the federal courts have consistently held that the powers provided to them under the Indian Civil Rights and Indian Gaming Regulatory Acts are essentially incapable of reaching tribal membership disputes.
This is not just an issue that affects scattered individuals. The nature of expatriation power is such that even if unexercised, it has the potential to significantly curb the political life of the tribe. Even a small number of instances can educate a large population on the costs and benefits of political dissent. Thus it is not just Indians as individuals who suffer when tribes abuse citizenship rights, but the tribe as a whole, as well as the legitimacy of the federal-Indian system of which it is a part. The power to disenroll removes from tribes the democratizing burden of working to compromise, stifling the development of populist values and participatory government. This Note first describes the historical and jurisprudential background of tribal citizenship, before arguing on the basis of individual civil rights and tribal republican development that the federal-Indian system would be well-served by affirmative Congressional action to remove from tribes the power to disenroll, disenfranchise and banish their members.
Solving the Extraterritoriality Problem: Lessons from the Honest Services Statute
The presumption against extraterritoriality is a canon of statutory interpretation that directs courts not to apply ambiguous domestic statutes to conduct that occurred abroad. Since articulating the basic elements of the presumption in its 1991 Aramco decision, the Supreme Court has applied and expanded the presumption in a fragmented manner, muddling the doctrine to the point of thwarting its usefulness as a canon of statutory interpretation.
In the wake of Aramco, commentators discussed the proper scope of extraterritoriality doctrine, but much of this debate has since fallen silent. This Note seeks to revitalize the doctrine by identifying situations that courts recognize should trigger the presumption, and by suggesting how to modify the doctrine within the framework of existing Supreme Court cases so that the doctrine encompasses these situations. Appropriately addressing extraterritorial applications of statutes is increasingly important as the U.S. Government prosecutes foreign crimes more and more aggressively.
This Note identifies two main problems with the currently unclear state of extraterritoriality doctrine. First, the doctrine fails to provide courts with the proper tools to avoid creating foreign law without explicit permission from Congress. Second, the current doctrine unsettles the balance of powers between the United States and foreign sovereigns, and among the branches of the federal government. The recent case of United States v. Giffen illustrates these two problems. This Note argues that the presumption should go beyond the Aramco framework and incorporate more recent Supreme Court decisions. It should direct courts to examine whether individual statutory terms and the general nature of the criminal statute are extraterritorial, presuming that Congress intends for statutory terms to apply domestically and for U.S. courts not to create foreign law.