The idea that consideration of error costs should inform judgments about actions with uncertain consequences is well established. When we act on imperfect information, we consider not only the probability of an event, but also the expected costs of making an error. In 1984 Frank Easterbrook used this idea to rationalize an anti-enforcement bias in antitrust, reasoning that markets are likely to correct monopoly in a relatively short time while judicial errors are likely to persist. As a result, false positives (recognizing a problem when there is none) are more costly than false negatives. While the problem of error cost bias is not explicitly mentioned all that frequently in antitrust cases, its influence is broad and deep, guiding the formation of presumptions and burdens of proof. The anti-enforcement bias in antitrust originated long before Easterbrook wrote, and was reflected in the work of George J. Stigler and Milton Friedman, mainly in the 1940s and 1950s. They had attempted to dismantle theories of imperfect competition in favor of models in which competition nearly always prevailed unless restrained by government action. While the ideas underlying the error cost framework were relatively new ones in law schools, by the 1980s they were already in decline in industrial organization economics. Easterbrook was writing defensively. An empirical revolution in economics was already well engaged in a process that found imperfect competition models to be more testable, more dominant, and more useful for policy judgments. In the process, classical Marshall/Stigler models of perfect competition were all but abandoned as irrelevant. This empirical work provides increasing evidence that United States antitrust policy, but particularly merger policy, took a significant wrong turn in the mid-eighties. Today the error cost framework exists mainly as a result of rent seeking by firms who stand to profit from the low output and high margin consequences of this antitrust anti-enforcement bias.
对错误成本的考虑应该为判断具有不确定后果的行为提供依据，这一观点已得到广泛认可。当我们根据不完全信息采取行动时，我们不仅要考虑事件发生的概率，还要考虑犯错误的预期代价。1984年，弗兰克·伊斯特布鲁克(Frank Easterbrook)用这一观点来合理化反垄断中的反执法偏见，理由是市场可能在相对较短的时间内纠正垄断，而司法错误可能持续存在。因此，假阳性(在没有问题的情况下识别出问题)比假阴性代价更高。虽然错误成本偏差问题在反垄断案件中并没有经常被明确提及，但它的影响是广泛而深刻的，指导着推定和举证责任的形成。反垄断中的反执法偏见早在伊斯特布鲁克写作之前就存在了，并在乔治·j·斯蒂格勒(George J. Stigler)和米尔顿·弗里德曼(Milton Friedman)的著作中得到了反映，主要是在20世纪40年代和50年代。他们试图推翻不完全竞争理论，支持除非受到政府行为限制，否则竞争几乎总是占上风的模式。虽然错误成本框架的基础思想在法学院中相对较新，但到20世纪80年代，它们在产业组织经济学中已经衰落。伊斯特布鲁克是在防守。经济学中的经验革命已经很好地参与了一个过程，发现不完全竞争模型更可测试，更占主导地位，对政策判断更有用。在这个过程中，经典的马歇尔/斯蒂格勒完全竞争模型几乎被视为无关紧要而抛弃。这项实证工作提供了越来越多的证据，表明美国的反垄断政策，尤其是合并政策，在80年代中期出现了重大的错误转向。今天，错误成本框架的存在主要是由于企业寻求租金的结果，这些企业从这种反垄断反执法偏见的低产量和高利润后果中获利。
{"title":"Antitrust Error Costs","authors":"Herbert Hovenkamp","doi":"10.2139/ssrn.3853282","DOIUrl":"https://doi.org/10.2139/ssrn.3853282","url":null,"abstract":"The idea that consideration of error costs should inform judgments about actions with uncertain consequences is well established. When we act on imperfect information, we consider not only the probability of an event, but also the expected costs of making an error. In 1984 Frank Easterbrook used this idea to rationalize an anti-enforcement bias in antitrust, reasoning that markets are likely to correct monopoly in a relatively short time while judicial errors are likely to persist. As a result, false positives (recognizing a problem when there is none) are more costly than false negatives. While the problem of error cost bias is not explicitly mentioned all that frequently in antitrust cases, its influence is broad and deep, guiding the formation of presumptions and burdens of proof. The anti-enforcement bias in antitrust originated long before Easterbrook wrote, and was reflected in the work of George J. Stigler and Milton Friedman, mainly in the 1940s and 1950s. They had attempted to dismantle theories of imperfect competition in favor of models in which competition nearly always prevailed unless restrained by government action. While the ideas underlying the error cost framework were relatively new ones in law schools, by the 1980s they were already in decline in industrial organization economics. Easterbrook was writing defensively. An empirical revolution in economics was already well engaged in a process that found imperfect competition models to be more testable, more dominant, and more useful for policy judgments. In the process, classical Marshall/Stigler models of perfect competition were all but abandoned as irrelevant. This empirical work provides increasing evidence that United States antitrust policy, but particularly merger policy, took a significant wrong turn in the mid-eighties. Today the error cost framework exists mainly as a result of rent seeking by firms who stand to profit from the low output and high margin consequences of this antitrust anti-enforcement bias.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132974821","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, while a handful of critics, all conservative, agreed with the dissenters that textualism could not deliver the outcome that the decision reached. This Essay shows that conservative critics of the majority’s reasoning were correct—up to a point. Specifically, it argues that Title VII’s ban on discrimination “because of” an employee’s “sex” does not cover discrimination because of their sexual orientation as a matter of “plain” or “ordinary” meaning. Further, it demonstrates that Gorsuch’s effort to establish that result as a matter of “legal” meaning wholly fails because it depends upon a fatally flawed application of the “but-for” test for causation, one that flouts bedrock principles of counterfactual reasoning. It follows that if a textualist approach to statutory interpretation is correct or warranted, then Bostock was wrongly decided. However, if Bostock was rightly decided, then it must follow that textualism is wrong or misguided. This Essay endorses the latter possibility, explaining that the dominant American approach to statutory interpretation is neither textualist nor purposivist but pluralist. It concludes by drawing powerful but previously unnoticed support for pluralism from Justice Samuel Alito’s principal dissent.
在博斯托克诉克莱顿县案(Bostock v. Clayton County)中，最高法院裁定联邦反歧视法禁止基于性取向和性别认同的就业歧视。这是最高法院2019年任期内的重磅案件之一。不出所料，这一结果赢得了主流法律和大众媒体的广泛赞誉。然而，抛开结果不谈，对大法官尼尔·戈萨奇(Neil Gorsuch)的多数意见的反应则更为复杂。戈萨奇的意见声称，将结果建立在对法律解释的文本主义方法之上。绝大多数评论家，无论是自由派还是保守派，都称赞戈萨奇对文本主义原则的谨慎和复杂，甚至是“宏伟”和“堪称典范”的应用，而少数批评者，都是保守派，同意持不同意见的人的观点，即文本主义不能带来裁决所达到的结果。这篇文章表明，保守派对多数人推理的批评在某种程度上是正确的。具体来说，它认为第七章禁止“因为”雇员的“性别”而歧视，并不包括“普通”或“普通”意义上的性取向歧视。此外，它还表明，戈萨奇将这一结果确立为“法律”意义的努力完全失败了，因为它依赖于对因果关系的“but-for”检验的致命缺陷应用，这一检验蔑视了反事实推理的基本原则。因此，如果对法律解释采用文本主义的方法是正确的或有根据的，那么对博斯托克案的判决就是错误的。然而，如果对波斯托克的判决是正确的，那么必然会得出文本主义是错误的或被误导的结论。本文赞同后一种可能性，解释了美国法律解释的主要方法既不是文本主义也不是目的主义，而是多元主义。最后，它从大法官塞缪尔•阿利托(Samuel Alito)的主要异议中获得了对多元化的有力支持，但此前并未引起人们的注意。
{"title":"Bostock was Bogus: Textualism, Pluralism, and Title VII","authors":"Mitchell N. Berman, G. Krishnamurthi","doi":"10.2139/ssrn.3777519","DOIUrl":"https://doi.org/10.2139/ssrn.3777519","url":null,"abstract":"In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, while a handful of critics, all conservative, agreed with the dissenters that textualism could not deliver the outcome that the decision reached. \u0000 \u0000This Essay shows that conservative critics of the majority’s reasoning were correct—up to a point. Specifically, it argues that Title VII’s ban on discrimination “because of” an employee’s “sex” does not cover discrimination because of their sexual orientation as a matter of “plain” or “ordinary” meaning. Further, it demonstrates that Gorsuch’s effort to establish that result as a matter of “legal” meaning wholly fails because it depends upon a fatally flawed application of the “but-for” test for causation, one that flouts bedrock principles of counterfactual reasoning. It follows that if a textualist approach to statutory interpretation is correct or warranted, then Bostock was wrongly decided. However, if Bostock was rightly decided, then it must follow that textualism is wrong or misguided. This Essay endorses the latter possibility, explaining that the dominant American approach to statutory interpretation is neither textualist nor purposivist but pluralist. It concludes by drawing powerful but previously unnoticed support for pluralism from Justice Samuel Alito’s principal dissent.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132160677","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The 5G network enables a set of new technical features and services that will contribute to a substantial transformation of the digital market. The novelties 5G networks introduce will also determine, more than ever before, a convergence of multiple sectors that will use the 5G network functionalities to deliver new applications and services. Due to its cross-border nature, and as a result of the areas involved, the 5G network touches upon different laws and, thus, multiple regulatory regimes, requiring the enhancement of cooperation among many regulatory bodies. The roll-out of the new generation of network, due to its cross-border nature will have an impact on existing regulatory frameworks, enhancing convergence and requiring cross-sectoral rules and Regulation. Notwithstanding the actions undertaken by the EU legislator for the development of a cross-sector strategy for the 5G network, none of the existing European legislative initiatives foresees procedures do not ensure coordination among the EU regulatory bodies. Providing a secure roll-out of 5G networks is a necessary precondition for all sectors delivering their services thanks to the new network connectivity. Therefore, lack of a harmonised security approach at national level affecting coordination of national regulatory authorities in developing standard procedures risks to undermine, among others, the efforts to achieve the digital transformation of the EU’s economy and society. Mainly focusing on the role of BEREC and other relevant EU agencies and bodies, the paper intends to demonstrate how current legislative initiatives do not have developed concrete procedures to streamline collaboration between different national and EU agencies, active in different domains. To demonstrate the procedural lack of harmonised procedures the paper focus on those legislations dealing with crucial aspects of the next generation of network connectivity, namely, the European Electronic Communication Code, the BEREC Regulation and the Network and Information Systems Directive.
{"title":"5G Deployment: The Role and Challenges of Regulatory Bodies in Ensuring Convergence Within the EU","authors":"A. Bruni","doi":"10.2139/ssrn.3642489","DOIUrl":"https://doi.org/10.2139/ssrn.3642489","url":null,"abstract":"The 5G network enables a set of new technical features and services that will contribute to a substantial transformation of the digital market. The novelties 5G networks introduce will also determine, more than ever before, a convergence of multiple sectors that will use the 5G network functionalities to deliver new applications and services. Due to its cross-border nature, and as a result of the areas involved, the 5G network touches upon different laws and, thus, multiple regulatory regimes, requiring the enhancement of cooperation among many regulatory bodies. \u0000 \u0000The roll-out of the new generation of network, due to its cross-border nature will have an impact on existing regulatory frameworks, enhancing convergence and requiring cross-sectoral rules and Regulation. Notwithstanding the actions undertaken by the EU legislator for the development of a cross-sector strategy for the 5G network, none of the existing European legislative initiatives foresees procedures do not ensure coordination among the EU regulatory bodies. \u0000 \u0000Providing a secure roll-out of 5G networks is a necessary precondition for all sectors delivering their services thanks to the new network connectivity. Therefore, lack of a harmonised security approach at national level affecting coordination of national regulatory authorities in developing standard procedures risks to undermine, among others, the efforts to achieve the digital transformation of the EU’s economy and society. \u0000 \u0000Mainly focusing on the role of BEREC and other relevant EU agencies and bodies, the paper intends to demonstrate how current legislative initiatives do not have developed concrete procedures to streamline collaboration between different national and EU agencies, active in different domains. To demonstrate the procedural lack of harmonised procedures the paper focus on those legislations dealing with crucial aspects of the next generation of network connectivity, namely, the European Electronic Communication Code, the BEREC Regulation and the Network and Information Systems Directive.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130312441","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This is the third in an annual series of Bureau Data Point articles describing mortgage market activity over time based on data reported under the Home Mortgage Disclosure Act (HMDA). It summarizes the historical data points in the 2019 HMDA data, as well as recent trends in mortgage and housing markets.
{"title":"Data Point: 2019 Mortgage Market Activity and Trends","authors":"Cfpb Office of Research","doi":"10.2139/ssrn.3786973","DOIUrl":"https://doi.org/10.2139/ssrn.3786973","url":null,"abstract":"This is the third in an annual series of Bureau Data Point articles describing mortgage market activity over time based on data reported under the Home Mortgage Disclosure Act (HMDA). It summarizes the historical data points in the 2019 HMDA data, as well as recent trends in mortgage and housing markets.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130189817","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Drawing from previous research on the political business cycle and principal-agent theory on executive and congressional oversight of information sharing, I analyze the Central Intelligence Agency’s (CIA) implementation of the Freedom of Information Act (FOIA) during presidential and congressional elections. I find that when the the incumbent president is democrat the CIA responds to FOIA requests approximately a month faster than when the incumbent president is a republican (p<0.20).
{"title":"The CIA's Democratic Integrity: Information Sharing and Electoral Accountability","authors":"Graham Streich","doi":"10.2139/ssrn.3442338","DOIUrl":"https://doi.org/10.2139/ssrn.3442338","url":null,"abstract":"Drawing from previous research on the political business cycle and principal-agent theory on executive and congressional oversight of information sharing, I analyze the Central Intelligence Agency’s (CIA) implementation of the Freedom of Information Act (FOIA) during presidential and congressional elections. I find that when the the incumbent president is democrat the CIA responds to FOIA requests approximately a month faster than when the incumbent president is a republican (p<0.20).","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"140 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113939805","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Lars Haffke, Mathias Fromberger, Patrick Zimmermann
Virtual currencies pose a serious threat to be used for money laundering, weakening the European Union’s financial system. Directive (EU) 2018/843 (the fifth anti-money laundering Directive) intends to mitigate these risks by introducing a definition of virtual currencies within Union law. Some service providers connected to virtual currencies are made subject to anti-money laundering law. Member States are required to transpose this Directive into national law by January 2020. Consultations on national level are currently ongoing. This article analyses how the Directive applies to current forms of cryptocurrencies, their adjacent services and intermediaries. It highlights the Directive’s imprecise wording as well as its limited scope. If Member States transpose it verbatim, they will create legal uncertainty and loopholes for relevant entities. Therefore, this article seeks to contribute to the national consultations of Member States by providing concrete legislative recommendations on how to fix the Directive’s shortcomings.
{"title":"Virtual Currencies and Anti-Money Laundering – The Shortcomings of the 5th AML Directive (EU) and How to Address Them","authors":"Lars Haffke, Mathias Fromberger, Patrick Zimmermann","doi":"10.2139/SSRN.3328064","DOIUrl":"https://doi.org/10.2139/SSRN.3328064","url":null,"abstract":"Virtual currencies pose a serious threat to be used for money laundering, weakening the European Union’s financial system. Directive (EU) 2018/843 (the fifth anti-money laundering Directive) intends to mitigate these risks by introducing a definition of virtual currencies within Union law. Some service providers connected to virtual currencies are made subject to anti-money laundering law. Member States are required to transpose this Directive into national law by January 2020. Consultations on national level are currently ongoing. This article analyses how the Directive applies to current forms of cryptocurrencies, their adjacent services and intermediaries. It highlights the Directive’s imprecise wording as well as its limited scope. If Member States transpose it verbatim, they will create legal uncertainty and loopholes for relevant entities. Therefore, this article seeks to contribute to the national consultations of Member States by providing concrete legislative recommendations on how to fix the Directive’s shortcomings.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128671117","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-05-09DOI: 10.5040/9781509995110.ch-014
M. Leeming
Equity has applied limitation statutes by analogy for centuries. The way in which that occurs is complex and poorly understood but of considerable theoretical and practical interest. It is after all no small thing for a plaintiff to be denied relief by reason of a statutory limitation which does not in terms apply to the claim, but which is regarded as applicable by analogy. An analysis of the equitable doctrine illustrates a recurring phenomenon, that of the interrelationship between statute and judge-made law, including with concepts such as concealed fraud and even the equitable doctrine of applying statutes of limitation by analogy itself being enacted in terms in statutes.
{"title":"Not Slavishly Nor Always - Equity and Limitation Statutes","authors":"M. Leeming","doi":"10.5040/9781509995110.ch-014","DOIUrl":"https://doi.org/10.5040/9781509995110.ch-014","url":null,"abstract":"Equity has applied limitation statutes by analogy for centuries. The way in which that occurs is complex and poorly understood but of considerable theoretical and practical interest. It is after all no small thing for a plaintiff to be denied relief by reason of a statutory limitation which does not in terms apply to the claim, but which is regarded as applicable by analogy. An analysis of the equitable doctrine illustrates a recurring phenomenon, that of the interrelationship between statute and judge-made law, including with concepts such as concealed fraud and even the equitable doctrine of applying statutes of limitation by analogy itself being enacted in terms in statutes.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"101 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127651334","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Tax Cuts and Jobs Act (TCJA) includes several provisions that may be viewed as potential violations of US tax treaties. However, most of those potential violations, such as new IRC section 951A and to a large extent new IRC section 59A, are covered by the Savings Clause (US model article 1(4)). The only remaining question is whether IRC section 59A (the “Base Erosion Anti-Abuse Tax”, or BEAT) violates the non-discrimination provision (article 24), which is exempted from the Savings Clause. The answer is no, because foreign related parties are not comparable to US related parties receiving interest or royalties.
《减税与就业法案》(Tax Cuts and Jobs Act, TCJA)中有几条可能被视为违反美国税收协定的条款。但是，大多数可能的违规行为，例如新的IRC第951A条和在很大程度上新的IRC第59A条，都适用于储蓄条款(美国范本第1(4)条)。唯一剩下的问题是IRC第59A条(“税基侵蚀反滥用税”，简称BEAT)是否违反了不歧视条款(第24条)，该条款不受储蓄条款的约束。答案是否定的，因为外国关联方与获得利息或特许权使用费的美国关联方是不可比较的。
{"title":"Beat It: Tax Reform and Tax Treaties","authors":"R. Avi-Yonah","doi":"10.2139/SSRN.3096879","DOIUrl":"https://doi.org/10.2139/SSRN.3096879","url":null,"abstract":"The Tax Cuts and Jobs Act (TCJA) includes several provisions that may be viewed as potential violations of US tax treaties. However, most of those potential violations, such as new IRC section 951A and to a large extent new IRC section 59A, are covered by the Savings Clause (US model article 1(4)). The only remaining question is whether IRC section 59A (the “Base Erosion Anti-Abuse Tax”, or BEAT) violates the non-discrimination provision (article 24), which is exempted from the Savings Clause. The answer is no, because foreign related parties are not comparable to US related parties receiving interest or royalties.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"396 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126752676","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Unmanned aircraft system (“UAS”) technology is advancing rapidly as entry costs continue to plummet, creating an extremely low barrier to entry for those who would use them for good or ill. Consumer off-the-shelf drones equipped with very basic modifications are mission-capable for a wide variety of malicious disruptions, diversions, or attacks. A civilian counter-drone industry is developing to address this threat, but it is hampered in the United States by a simple reality: nearly every means available to defend against a drone-borne attack is illegal on multiple, independent grounds. Some have already deployed this technology on an “ask forgiveness, not permission” basis, hoping that they will be pardoned for breaking these laws if they are ever forced to deploy their systems to avert a crisis. This Wild West approach to counter-unmanned aircraft systems (“C-UAS”) will inevitably produce a sub-optimal result. This article first offers a categorical taxonomy of the C-UAS currently in production and some of the most plausible systems in development. Second, it analyzes the legality of each category, and shows that deploying any of them as a civilian operator would incur potential civil and criminal liability. Third, it will examine some of the recent statutory and regulatory efforts to jump-start this industry, but demonstrate that these efforts fall short of remedying the numerous statutory barriers to legal counter-drone system deployment. Finally, it will offer several potential solutions to this problem, and principles that should guide whichever of those paths federal regulators opt to take. By proactively legalizing limited and responsible C-UAS use, we may yet avoid a crisis and its inevitable backlash.
{"title":"Lasers, Jammers, Nets, and Eagles: Drone Defense Is Still Illegal","authors":"Jacob Tewes","doi":"10.2139/ssrn.3304914","DOIUrl":"https://doi.org/10.2139/ssrn.3304914","url":null,"abstract":"Unmanned aircraft system (“UAS”) technology is advancing rapidly as entry costs continue to plummet, creating an extremely low barrier to entry for those who would use them for good or ill. Consumer off-the-shelf drones equipped with very basic modifications are mission-capable for a wide variety of malicious disruptions, diversions, or attacks. A civilian counter-drone industry is developing to address this threat, but it is hampered in the United States by a simple reality: nearly every means available to defend against a drone-borne attack is illegal on multiple, independent grounds. Some have already deployed this technology on an “ask forgiveness, not permission” basis, hoping that they will be pardoned for breaking these laws if they are ever forced to deploy their systems to avert a crisis. This Wild West approach to counter-unmanned aircraft systems (“C-UAS”) will inevitably produce a sub-optimal result. This article first offers a categorical taxonomy of the C-UAS currently in production and some of the most plausible systems in development. Second, it analyzes the legality of each category, and shows that deploying any of them as a civilian operator would incur potential civil and criminal liability. Third, it will examine some of the recent statutory and regulatory efforts to jump-start this industry, but demonstrate that these efforts fall short of remedying the numerous statutory barriers to legal counter-drone system deployment. Finally, it will offer several potential solutions to this problem, and principles that should guide whichever of those paths federal regulators opt to take. By proactively legalizing limited and responsible C-UAS use, we may yet avoid a crisis and its inevitable backlash. <br>","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129632910","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The delegation of flexible legislative powers to China's five Special Economic Zones (SEZs) (经济特区) in the reform era was attributed to both the endorsement of the Chinese central government and the strong commitment of SEZ officials. SEZs serve as a petri dish where market-oriented legislation was introduced and practiced, and later spread to elsewhere in the country. They ultimately gathered the momentum for turning the tide of contestation in the domains of ideology, economy and policy in favor of a market system, and created conditions favorable for the market-oriented legislation at national level. A more significant impact of SEZ legislation is that it serves as one of the main sources of reference for national legislation on the market economy. The SEZ legislation provides a series of rules on the market economy that are later written into national laws and regulations. Consistent with the increase of national legislation in number, SEZ legislation tends to lose its significance. Nevertheless, after three decade’s legislative practice, SEZ officials have created a unique reformist identity that is crucial for introducing legislative reforms in other domains critical to China’s long-term stability and development.
{"title":"Examining the Legislation in China's Special Economic Zones: Framework, Practice and Prospects","authors":"Yang Feng","doi":"10.2139/ssrn.3227916","DOIUrl":"https://doi.org/10.2139/ssrn.3227916","url":null,"abstract":"The delegation of flexible legislative powers to China's five Special Economic Zones (SEZs) (经济特区) in the reform era was attributed to both the endorsement of the Chinese central government and the strong commitment of SEZ officials. SEZs serve as a petri dish where market-oriented legislation was introduced and practiced, and later spread to elsewhere in the country. They ultimately gathered the momentum for turning the tide of contestation in the domains of ideology, economy and policy in favor of a market system, and created conditions favorable for the market-oriented legislation at national level. A more significant impact of SEZ legislation is that it serves as one of the main sources of reference for national legislation on the market economy. The SEZ legislation provides a series of rules on the market economy that are later written into national laws and regulations. Consistent with the increase of national legislation in number, SEZ legislation tends to lose its significance. Nevertheless, after three decade’s legislative practice, SEZ officials have created a unique reformist identity that is crucial for introducing legislative reforms in other domains critical to China’s long-term stability and development.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133944488","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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