5 1/2 Problems with Legal Positivism and Tax Law

Essay by: Bret N. Bogenschneider

2017 PEPP. L. REV. 1 (2017)

This essay is a reply to the famous paper by John Gardner, Legal Positivism: 5 1⁄2 Myths, and the more recent paper by John Prebble, Kelsen, the Principle of Exclusion of Contradictions, and General Anti-Avoidance Rules. The reply is developed from the perspective of tax law where the respective issues are of major significance. The “5 1⁄2 problems” correspond to Gardner’s arguments and are as follows: (#1) Legal Positivism centers on determining whether a tax law is legally valid based on its source (e.g., the legislature enacted a valid law applying tax at the rate of 25%). However, in the tax context, a second-stage assessment is nearly always necessary to determine whether the scope of the tax law extends to the particular fac- tual situation at issue (e.g., the tax base includes xyz). The second-stage assessment means deciding a case on the merits and encompasses the vast majority of legal inquiry relevant to domestic and international tax practice; (#2) Logical Positivism is often endorsed by Legal Positivists as a method of legal interpretation in the tax context; (#3) Legal Positivism is not normatively inert where it is applied as a method of legal interpretation; further- more, tax and legal practitioners are not committed to normative modes of legal analysis in evaluating cases on the merits; (#4) Legal Positivism has been applied to challenge the validity of General Anti-Avoidance Rules (GAARs) on the grounds that formalistic tax avoidance planning by multinational firms is justified by the rule of law; (#5) Legal Positivism has been applied to reach a “double non-taxation” outcome based on an overly-broad view of the valid scope of tax treaties; and (#5 1⁄2) legal philosophy of- ten lacks practical validity.

Download the Full Article

The Path of Most Resistance: Resisting Gang Recruitment as a Political Opinion in Central America’s Join-or-Die Gang Culture

Comment by: Ericka Welsh

44 PEPP. L. REV. 1083 (2017)

In recent years, increasing numbers of asylum-seekers from Honduras, Guatemala, and El Salvador crossed into the United States, fleeing gang violence that has driven homicide rates to record levels.  These countries, known collectively as the “Northern Triangle,” now make up one of the most violent regions in the world.  Transcending petty crime, gangs control entire communities in the Northern Triangle where they operate as de facto governments beyond law enforcement’s control.  Gangs practice forced recruitment in these communities, creating a join-or-die gang culture where resisting recruitment is tantamount to opposition.  Opposition, in turn, is met with brutal retaliation.

The young men and women who refuse to join are fleeing to the United States and seeking asylum.  However, United States courts routinely reject these asylum applicants under a restrictive interpretation of political asylum, failing to recognize the current realities of gang culture in the Northern Triangle.  This Comment reviews gang-based political asylum claims under the courts’
restrictive interpretation, analyzes these cases in their socio-political context, and explores a path to political asylum under a holistic asylum framework.  Ultimately, this Comment advocates for an approach that properly accounts for the socio-political realities of the region while realigning federal asylum law with its original humanitarian and protective purpose.

Download the Full Article

The Unintended Consequences of California Proposition 47: Reducing Law Enforcement’s Ability to Solve Serious, Violent Crimes

Comment by: Shelby Kail

44 PEPP. L. REV. 1039 (2017)

For many years, DNA databases have helped solve countless serious, violent crimes by connecting low-level offenders to unsolved crimes.  Because the passage of Proposition 47 reduced several low-level crimes to misdemeanors, which do not qualify for DNA sample collection, Proposition 47 has severely limited law enforcement’s ability to solve serious, violent crimes through California’s DNA database and reliable DNA evidence.  This powerful law enforcement tool must be preserved to prevent additional crimes from being committed, to exonerate the innocent, and to provide victims with closure through conviction of their assailants or offenders.  Proposition 47’s unintended consequences have led to devastating costs in the first year alone, including a decreased deterrent effect, a rise in crime rates, and a lack of rehabilitation.  The goal of ensuring the safety and security of citizens should remain at the forefront of future actions.

This Comment analyzes the impact Proposition 47 has had and will have on the DNA database in California.  Additionally, this Comment examines the history of both state and federal DNA databases, the evolution of California’s DNA database, and case law considering the constitutionality of DNA database programs.  Specifically, this Comment assesses the consequences of Proposition 47 and considers different approaches to handling the arising issues.  This Comment concludes by summarizing the importance of restoring DNA collection for the low-level crimes Proposition 47 reduced to misdemeanors to ensure the safety and security of California citizens by keeping serious, violent criminals off the streets.

Download the Full Article

A Principled Approach to Separating the Fusion Between Nursing Homes and Prisons

Article by: Professor Mirko Bagaric, Marissa Florio, & Brienna Bagaric

44 PEPP. L. REV. 957 (2017)

Elderly people are a far lower risk to community safety than other individuals.  Despite this, elderly prisoners are filling prisons at an increasing rate.  The number of elderly prisoners in the United States has increased more than fifteen-fold over the past three decades—far more than the general imprisonment rate.  This trend is empirically and normatively flawed.  Older offenders should be treated differently from other offenders.  The key reason for this is that elderly offenders reoffend at about half the rate of other released prisoners, but the cost of incarcerating the elderly—due to their more pressing health needs—is more than double.  The maturity and infirmity of most elderly offenders mean that they present a far lower risk to community safety than other offenders do.  The sentencing system should be reformed to properly accommodate elderly offenders’ relevantly different situation.  This Article argues that the incarceration levels of elderly offenders should be reduced by introducing specific mitigating factors into the sentencing calculus and by using progressive forms of punishment, especially electronic monitoring.  These reforms will not make communities less safe, but they will reduce the fiscal burden on the sentencing system and enhance the normative integrity of the sentencing process.

Download the Full Article

Sexual Violence as an Occupational Hazard & Condition of Confinement in the Closed Institutional Systems of the Military and Detention

Article by: Hannah Brenner, Kathleen Darcy, & Sheryl Kubiak

44 PEPP. L. REV. 881 (2017)

Women in the military are more likely to be raped by other service members than to be killed in combat.  Female prisoners internalize rape by corrections officers as an inherent part of their sentence.  Immigrants held in detention fearing deportation or other legal action endure rape to avoid compromising their cases.  This Article draws parallels among closed institutional systems of prisons, immigration detention, and the military.  The closed nature of these systems creates an environment where sexual victimization occurs in isolation, often without knowledge of or intervention by those on the outside, and the internal processes for addressing this victimization allow for sweeping discretion on the part of system actors.  This Article recommends a two-part strategy to better make victims whole and effect systemic, legal, and cultural change: the use of civil lawsuits generally, with a focus on the class action suit, supplemented by administrative law to enforce federal rules on sexual violence in closed systems.  This Article strives to break down the walls that separate these different closed systems into silos, toward an end of shifting laws and policy to better address the multi-faceted problem of sexual victimization.


Download the Full Article

The Right-Based View of the Cathedral: Liability Rules and Corrective Justice

Article by: Omri Rachum-Twaig & Ohad Somech

2016 PEPP. L. REV. 74 (2017)

In their celebrated paper, Calabresi and Melamed offered a framework, often referred to as the ‘‘Cathedral’’ analysis, which explains when and why entitlements should be protected using two main sets of rules—property rules and liability rules.  This framework is now widely used to explain some private law doctrines.  However, cases that are easily explained as applications of liability rules are usually difficult to explain under the private law theory of correlative corrective justice.  This is because the basic idea underlying corrective justice conflicts with the notion of rules that allow the nonconsensual property appropriation subject to compensation.  In this Article, we attempt to reconcile liability rules under both Cathedral analysis and corrective justice.  To do so, we discuss three positive examples of pure liability rules and analyze them under a new model that we believe is consistent with corrective justice.  We then discuss the model’s further implications.


Download the Full Article