Volume 90, Number 3 (March, 2017)
Article by Elizabeth Pollman & Jordan M. Barry
This Article examines what we term “regulatory entrepreneurship”—pursuing a line of business in which changing the law is a significant part of the business plan. Regulatory entrepreneurship is not new, but it has become increasingly salient in recent years as companies from Airbnb to Tesla, and from DraftKings to Uber, have become agents of legal change. We document the tactics that companies have employed, including operating in legal gray areas, growing “too big to ban,” and mobilizing users...
The Timing of Tax Transparency
Article by Joshua D. Blank
Fairness in the administration of the tax law is a subject of intense debate in the United States. As myriad headlines reveal, the Internal Revenue Service (“IRS”) has been accused of failing to enforce the tax law equitably in its review of tax-exempt status applications by political organizations, international tax structures of multinational corporations, and estate tax returns of millionaires, among other areas. Many have argued that greater “tax transparency” would better empower the public...
The Law of Look and Feel
Article by Peter Lee & Madhavi Sunder
Design—which encompasses everything from shape, color, and packaging to user interface, consumer experience, and brand aura—is the currency of modern consumer culture and increasingly the subject of intellectual property claims. But the law of design is confused and confusing, splintered among various doctrines in copyright, trademark, and patent law. Indeed, while nearly every area of IP law protects design, the law has taken a siloed approach, with separate disciplines developing ad hoc rules...
Capital Taxation in an Age of Inequality
Article by Edward D. Kleinbard
The standard view in the U.S. tax law academy remains that capital income taxation is both a poor idea in theory and completely infeasible in practice. But this ignores the first-order importance of political economy issues in the design of tax instruments. The pervasive presence of gifts and bequests renders moot the claim that the results obtained by Atkinson and Stiglitz in 1976 counsel against taxing capital income in practice. Taxing capital income is responsive to important political ec...
Life is Short. Go to Court: Establishing Article III Standing in Data Breach Cases
Note by Megan Dowty
This is the digital age. As “the ratings machine, DJT [Donald J. Trump],” says, “all I know is what’s on the internet,” or “the cyber,” as he calls it. People’s use of and dependency on the Internet has made data breaches a serious and widespread threat to people’s privacy and security. In 2016, there were 1,093 data breaches, up from 780 in 2015. 75.6% of companies suffered at least one successful attack. Essentially “there are only two types of companies left in the United States, according to...
Easy Come, Easy Go: A Guide to California Cap-and-Trade Spending
Note by Jonathan Kintzele
At the time of this writing, over $1.4 billion of unallocated polluter regulatory fees collect dust in a special government bank account as California agencies labor to figure out how to spend it, or more accurately, how to spend it fast enough. While state agency pockets smolder with anticipation, one inconvenience stands in their way: the cash must be used for programs or developments that reduce greenhouse gas (“GHG”) emissions. Thus, as lawmakers toil through the night to engineer new and cr...
Strategic Law Avoidance Using the Internet: A Short History
Postscript (Response) by Tim Wu
90 S. Cal. L. Rev. Postscript 7 We are now some twenty years into the story of the Internet’s bold challenge to law and the legal system. In the early 2000s, Jack Goldsmith and I wrote Who Controls the Internet, a book that might be understood as a chronicle of some the early and more outlandish stages of the story. Professors Pollman and Barry’s excellent article, Regulatory Entrepreneurship, adds to and updates that story with subsequent chapters and a sophisticated analysis of the strateg...
Make a tax deductible contribution to the Southern California Law Review.
- Bank of America Corporation
- Ernst & Young Global Limited
- Los Angeles Chapter of the Federal Bar Association
- Thomas Safram & Associates