May, 2007

Articles

Philosopher Kings and International Tax: A New Approach to Tax Havens, Tax Flight, and International Tax Cooperation

Tax flight (the evasion of income taxes through the use of offshore tax havens) poses a $50 billion-a-year problem for the United States. Through tax flight treaties, the United States could make payments to tax havens that would give those countries both the resources and the incentive they need to develop the administrative capacity necessary to supply the U.S. with income tax information. Such treaties likely would reduce the United States' collective well-being, particularly if measured in simple GDP terms. Therefore, a simplistic "philosopher king" model of international tax law, which assumes that governments only engage in cross-border tax cooperation to boost their respective GDPs, would suggest that tax flight treaties could not be effective. This Article argues that a more sophisticated model of inter-governmental behavior (Oona Hathaway's "integrated theory") supports a more optimistic conclusion regarding the potential of tax flight treaties.

The doctrine of informed consent should be expanded to require doctors to disclose: (1) off-label prescriptions; and (2) conflicts of interest created by drug-company marketing. Off-label prescriptions are those which do not comply with the FDA- approved use for the drug. While they are perfectly legal and a significant part of mainstream medicine, accounting for more than half of all prescriptions written today, in many instances they are not supported by scientific evidence, drive up the cost of health care, and expose patients to unnecessary risks. Conflicts of interest arise because drug companies provide free continuing medical education, pay speakers' and consultants' fees, offer bounties for prescribing certain drugs, and distribute mountains of gifts and free samples. Research establishes that these marketing practices increase the prescribing of promoted drugs and lead to non-rational prescribing decisions. To date, no appellate case has required these disclosures, and legal scholarship on these issues is surprisingly scant. As this Article explains, since this information is vital for patients to make informed health care decisions, it should be disclosed under the doctrine of informed consent.

The law of patent claim interpretation articulated by the United States Court of Appeals for the Federal Circuit is commonly supposed to be markedly indeterminate, and to be responsible for a lack of certainty and predictability in patent litigation. But there has been no attempt to measure objectively the indeterminacy associated with patent claim interpretation, or, for that matter, of any other field of law. This Article shows that under appropriate conditions the indeterminacy of a legal regime may be measured empirically by the frequency of appellate dissents. Application of this method to the Federal Circuit's jurisprudence demonstrates that while patent litigation as a whole is less determinate than other bodies of law overseen by the Federal Circuit, there is little or no evidence that claim interpretation is any more or less indeterminate than other aspects of patent law over time. Nor is the law of claim interpretation any less determinate than that of another interpretive regime, contract interpretation. When the indeterminacy of patent law is taken into account, the district courts perform as well, or better, than the specialized tribunals reviewed by the Federal Circuit. These findings call into question the notion that specialized trial courts are necessary to bring certainty or predictability to patent infringement litigation.

Notes

A candid but rational inquiry into the history of the public trust doctrine is essential to understanding a recent Michigan Supreme Court decision that suddenly and unexpectedly took private property for public use without just compensation.

Despite the Latinate allure of its terms—jus publicum and jus privatum—the public trust doctrine has no Roman law origins. It is a creature of the common law. It arose in England to explain the Crown's rights to tidelands and navigable waters. It followed English dominion across the Atlantic, where the fertile imagination of American lawyers unearthed the doctrine's supposed ancient Roman roots.

This Note argues that the Michigan Supreme Court used the doctrine's veneer of antiquity to rationalize away the effects of its decision in Glass v. Goeckel. In Glass¸ the court opened to the public thousands of miles of private land along the Great Lakes in Michigan. In so doing, the court overturned decades of Michigan law, unsettled the expectations of property owners, and, in effect, took longstanding private property rights, converted them to public use, yet offered no compensation. This decision authorizes Michigan to circumvent the Fifth Amendment and seize private property without facing the burden (and the constitutional mandate) of paying for it.

The majority of married taxpayers do not fully appreciate the legal ramifications of executing a joint tax return. Regardless of the actual division of combined income, upon filing a joint return, each spouse is responsible for the accuracy of the entire return and liable for the full amount of any tax deficiency arising from the return. To avoid joint and several liability, a couple could file separate returns; however, this often results in a greater total tax liability. Alternatively, a spouse who qualifies as "innocent" of the erroneous items reported by his or her spouse may claim relief under Internal Revenue Code (I.R.C.) § 6015.

While relief from joint and several liability under I.R.C. § 6015 is an improvement on its predecessor, former § 6013(e), problems still remain that prevent many deserving taxpayers from obtaining relief. This Note focuses on two situations in which the requesting spouse had actual knowledge of the inaccuracy of the joint return, but signed the return anyway. The spouse in the first situation signed the return under duress. The spouse in the second situation signed the return to prevent retaliatory spousal abuse. Under current Treasury Regulations, § 6015 relief is only available to those who sign out of fear of retaliation by an abusive spouse. A spouse who signs under actual duress is required to suffer the tax consequences of a married-filing- separately return (a potentially debilitating outcome in community property states). This distinction between abuse and duress is an affront to common sense and in direct contradiction with both the text of the statute and the legislative intent.