The Vermont Supreme Court may soon consider whether federal law permits the Public Service Board to regulate certain voice-over-internet-protocol (VoIP) services. ¹ Across the Hudson, Governor Andrew Cuomo recently sought to bar the New York Public Service Commission from adopting similar regulations. ² And these states are not alone: from Maine to Florida, several states are considering whether their jurisdiction over traditional telephone service encompasses this new technology, through which nearly one-third of American landline households receive telephone service. ³ If so, nationwide VoIP providers could face up to fifty new legal regimes with which they must comply before offering service. If not, consumer migration away from traditional telephone service could leave state regulators with little to regulate.

The VoIP battle is the latest example of regulatory confusion caused by the increasingly anachronistic Communications Act. ⁴ The Act allocates jurisdiction between the federal government and the states based on the nature of the service and the network over which it is offered. As convergence increasingly blurs lines that the Act seeks to keep distinct, companies and regulators struggle in vain to fit new technologies into outdated regulatory categories. ⁵ The fight illustrates the need for a new platform-neutral model that avoids the uncertainty and disparity that the silo-based model engenders.

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The Facebook initial public offering (“Facebook IPO”) is premised on a dual class stock structure, which the media criticizes as a circumvention of regulations designed to protect shareholders.  I argue that Facebook’s use of dual class stock not only is likely to benefit its shareholders, but also follows in the footsteps of seasoned, influential companies like Google.

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Earlier, I posted about a network neutrality case, Verizon v. FCC,¹ which could have far-reaching consequences for the Internet industry. Another concerted attempt to regulate the Internet, disguised in the form of a piracy protection bill, recently came before the House Judiciary Committee and garnered widespread disapproval. Representative Lamar Smith (R-TX) and a bipartisan group of twelve co-sponsors introduced the “Stop Online Piracy Act” (“SOPA”) on October 26, 2011, which punishes websites that are accused of facilitating copyright infringement. Although touted by its supporters as a weapon against foreign sites that steal and sell American inventions, SOPA is problematic because it also affects U.S. sites that either engage in infringement or have taken “deliberate actions to avoid confirming a high probability” of such infringement.² Because the bill’s lack of procedural safeguards could have deep-seated ramifications that cripple the Internet industry, it should not be reconsidered for passage.

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Though the presidential election of 2012 is still some time away, national politics have been in the thick of one for several months now. One of the top issues being debated is the tax code. ¹ Most agree that the tax code should be simplified, but to say that the proposals to do this are various is an understatement. This perennial question of reform has been a fixture of the national debate for a long time, so little of what can be said about it is particularly novel. All the same, a brief overview of the purposes behind our system of taxation and how they inform the present debate about tax reform is useful. The ultimate conclusion, unsatisfying as it may be, is that there are serious systemic obstacles to any substantive changes to the tax code.

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What do you call a weeklong period in which you and a handful of acquaintances drink alcohol every day at lunch,¹ sleep though the afternoons,² smoke marijuana³ and ingest a couple lines of cocaine on occasion?⁴  You call it the time when a jury convicted Anthony Tanner and William Conover of conspiracy to defraud the United States and commit various acts of mail fraud.⁵  Under a current rule of evidence, which precludes juror testimony to impeach a verdict except on extraneous prejudicial information, juror intoxication is not an external influence about which jurors may testify.⁶ A new test for the admissibility of post-trial juror testimony should be adopted so that juror testimony regarding jurors’ consumption of drugs and alcohol during breaks can be received.⁷
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After thirty years, Congress let the federal subsidy for corn-based ethanol expire on December 31, 2011.¹  Although the influence of “Big Corn” is not as ubiquitously known as that of “Big Oil” or pharmaceuticals, the agricultural sector is consistently ranked among the top sectors for lobbying expenditures.² This political clout is well demonstrated by the extent of the former subsidy.  The ethanol subsidy has been in existence for the last thirty years and cost taxpayers roughly six billion dollars in each recent year.³

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Tax law has just not been the same since January 2011. Did Congress pass earthshaking legislation affecting the Internal Revenue Code? Did the IRS dramatically change regulations? If only it were that exciting. Instead, eight jurists sitting at One First Street in our nation’s capital transformed tax law in a less bloody, but no less profound, way. The thought must have gone through many a tax mind – is tax exceptionalism dead? READ MORE

Gary Lawson and David Kopel have written an interesting piece over at YLJO about the Necessary and Proper Clause and its roots in 18th century agency law:

The Necessary and Proper Clause is based on eighteenth-century agency law, including the fundamental agency doctrine of principals and incidents. Accordingly, the Clause only allows Congress to exercise powers that are incident to—meaning subordinate to or less “worthy” than—its principal enumerated powers. The power to compel private persons to engage in commercial transactions with other private persons is not an incidental power. Thus, the mandate is not authorized by the Necessary and Proper Clause, whether or not such a power is “necessary and proper for carrying into Execution” other powers.

It may be, though, that only a hardcore originalist would agree that these observations end the debate over whether the Necessary and Proper Clause authorizes the Individual Mandate. In reading his Raich concurrence it’s not clear even that Justice Scalia’s originalism would reach so far.

Alan Levine

Current economic conditions in the United States have led to a dramatic decrease in state tax revenue.¹ Without these funds, states will be unable to support important public services, and hundreds of thousands of jobs in the public and private sectors are at risk of being cut, as states work to close $103 billion in budget gaps.² Accomplishing that will involve overcoming many hurdles, such as the unpopularity of raising taxes during times of economic trouble, but one largely untapped source could provide a significant amount of income to states. States currently lose around $23 billion annually in uncollected use taxes,³ about half of which likely would have come from transactions with Web retailers.⁴ Use taxes act as an adjunct to sales taxes on purchased goods and services that are not subject to sales taxes.⁵ But because this tax is voluntarily collected from the consumer instead of the retailer, compliance is extremely low.⁶

As a significant number of transactions only taxed by a use tax occur between in-state consumers and online retailers such as Amazon.com⁷, the increasing dominance of e-commerce over brick and mortar retail has given rise to a major threat to a long-established and relatively stable mechanism for providing states with tax revenue. But the states’ tools to address this issue have been severely limited by a nearly twenty-year-old Supreme Court decision that imposes an antiquated bright-line rule over sales tax imposition, leaving states to choose between legislative options that are either ineffective, overly costly, or unconstitutional.⁸ Meanwhile, an inactive Congress has repeatedly failed to enact legislation that would address this issue.

Federal legislation that unifies and clarifies interstate sales tax policies would be both effective and constitutional, but courts should reexamine the merits and logic of Quill Corp. v. North Dakota. An easing of the bright-line requirement of a physical presence to constitute a sufficient nexus would likely spur Congressional action that would address concerns that national retailers have about being exposed to sales tax obligations. READ MORE

Every first-year law student knows that Big Law pays $160,000 a year. In fact, this number is likely the biggest incentive for applying in the minds of most law-school hopefuls. Taking New York City as an example, a quick look at Vault’s salary data ¹ reveals that, indeed, the large majority of New York firms with available salary data pay first-year associates exactly $160,000. READ MORE