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Legal Research News and Information with an Emphasis on Wisconsin

Recent UW Law Faculty Scholarship: The Anatomy of Cancel Culture; The First French BIT; Taxpayers’ Tax Election Regrets; The International Law Origins of Compact Theory: A Critique of Bellia & Clark on Federalism; and Transparency, Accountability, and Influence in the International Investment Law System

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Here is the latest faculty scholarship appearing in the University of Wisconsin Law School Legal Studies Research Papers series found on SSRN.

In this paper, I undertake a qualitative exploration of how social regulation of speech works in practice on university campuses, and of the extent to which social regulation in practice affirms or undermines the stereotypes and caricatures that characterize the cancel-culture wars. I first summarize the two narratives that anchor public debates over the social regulation of speech—consequence culture and cancel culture. I then describe the social regulation of speech and its five phases: dissemination, accusation, pillory, sanction and direct action. I explain how these five phases were reflected in the speech events under study and the extent to which their real-world features challenge or support the cancel-culture and consequence-culture narratives. I end by suggesting further research on the implications of this phases framework for efforts to balance universities’ dual commitments to free speech and inclusive community on their campuses.

This article draws upon original research in the French diplomatic archives to uncover the story of the negotiations of France’s first bilateral investment treaty, a 1963 treaty with Tunisia. The article shows that the treaty was, to a perhaps surprising extent, negotiated rather than imposed. And France’s model for the treaty wasn’t Germany’s now-famous 1959 investment treaty with Pakistan, but rather Switzerland’s own (and far more obscure) first investment treaty, also with Tunisia. The article also shows that the treaty’s invocation of “fair and equitable treatment” was intended to reflect only what customary international law already required. The treaty, despite the lack of an investor-state arbitration clause, seems to have been a relative success. France and Tunisia, entangled in a complex and sensitive post-colonial relationship, successfully managed the fallout from Tunisia’s sudden nationalization of French-owned agricultural properties, and France, to this day, remains Tunisia’s single most important economic partner.

In a variety of contexts, taxpayers can file tax elections that dictate their tax treatment. After filing or not filing a given tax election, a taxpayer might later feel regret. Perhaps the taxpayer lacks adequate information about the election’s existence or tax effects at the time the taxpayer makes (or fails to make) the election. Later, the taxpayer acquires additional tax law information revealing that an alternative election would have produced more favorable tax results. Alternatively, the taxpayer may make an election because it will produce favorable tax consequences if the taxpayer’s transactions or behavior play out the way the taxpayer predicts. When the taxpayer’s predictions prove to be inaccurate, the taxpayer wishes she had made a different election. A taxpayer who learns that an earlier election was, in retrospect, ill-advised might attempt to benefit from her newly acquired knowledge by retroactively filing a new election. Tax law’s limitations on the use of hindsight determine whether the taxpayer will succeed. Existing literature lacks an analysis focused on the questions of when taxpayers can and should be able to act on their regrets by using hindsight. The first aim of this Article is to undertake a thorough examination of restrictions on (and allowed uses of) hindsight when making tax elections. By focusing on the use of hindsight and analyzing the relevant rules collectively, this Article demonstrates that the tax law’s approach to the use of hindsight is far from consistent. The second aim of this Article is to suggest and analyze underlying policy goals that motivate restrictions on the use of hindsight. An examination of the underlying policy goals brings to light some features of existing law that are useful and others that merit revision. The use of hindsight affects tax revenue collection and the fairness of the tax system and thus is a topic of significance at any time. In addition, certain recent legislative changes relate to restrictions on the use of hindsight when making tax elections.

Compact theory will not stay dead. Justice Clarence Thomas seems intent on reviving it in some form. Recently, Professors Anthony J. Bellia Jr. and Bradford R. Clark have given a scholarly imprimatur to compact theory by arguing that the word “state” in the Constitution compels us to interpret American federalism doctrine in the manner that Emmerich de Vattel and other European international law theorists would have interpreted the various treaty arrangements that created confederacies of small European states. This international law doctrine holds that express waivers of sovereignty by member states in such leagues must be construed narrowly, and that waivers of sovereignty by implication are disallowed entirely. The authors claim that the doctrines of Vattel were so “well known to the Founders” that the word “state” in the Constitution was widely and tacitly understood to refer to independent, sovereign Vattelian nation-states.

This article argues that Bellia & Clark’s thesis is mistaken. The Framers consistently and systematically rejected this conception of American states as sovereign nation-states in creating the Constitution. To the extent that the Framers showed any awareness of Vattel’s international law understanding of confederacies, they associated it firmly with the central failing of the Articles of Confederation. The ratifying public was well aware that a Constitution established by the people and empowered to regulate the people directly was a fundamental departure from European-style confederacies. Vattelian international law theory as described by Bellia & Clark in essence became “compact theory” in the United States, where it served as the theoretical foundation for ultra-strict construction of implied powers, and later for nullification and secession. It was rejected repeatedly in U.S. constitutional history. Thus, while Bellia & Clark’s account could offer a serviceable origin story for compact theory, it fails as an origin story for American federalism.

Observers of the international investment law (IIL) system regularly complain about the system’s lack of transparency and accountability. Major reform efforts, both past and present, inevitably turn to “more transparency” as a solution to the system’s problems. But what does transparency mean, and why do we want more of it? In this article I draw upon an extensive interdisciplinary literature on transparency to argue that the IIL literature gets much about transparency wrong. I argue that transparency is primarily aimed at producing information that allows key system actors to exert influence over system outputs. And while transparency is often linked to accountability, I show that accountability, properly understood, is often lacking in the IIL system. I apply a system framework to highlight how increased transparency can have unexpected and perhaps undesirable effects on influence over system outputs. More transparency may, problematically, increase stress on the IIL system by diminishing the ability of states to influence system outputs.

For the full text of these works and additional scholarship from UW Law faculty and staff, visit the University of Wisconsin Law School Legal Studies Research Paper Series on SSRN. A free email subscription is available at the top right of the page.