Volume 40

Presidential Tax Transparency

Joshua D. Blank

Whether the public should have access to the tax returns of the President of the United States, and those who seek the office, is the focus of acute attention and debate. President Donald Trump’s refusal to disclose his tax returns throughout his campaigns and presidency has fueled multiple legislative public disclosure proposals. In March 2021, the U.S. House of Representatives passed legislation as part of the For the People Act of 2021 that would require Presidents, Vice Presidents, and nominees to publicly disclose several years of their tax returns through the Federal Election Commission. Many state legislatures have considered similar requirements for candidates who seek to appear on state primary and general election ballots. Proponents of these measures argue that public disclosure of tax returns could expose conflicts of interest, reveal the President’s and candidates’ annual tax liability and tax rates, and, most importantly, enable the public to observe whether the President or candidates have engaged in tax evasion, pursued tax shelters and other tax avoidance, and participated in audits or tax controversies with the IRS.

Laying Ghost Networks to Rest: Combatting Deceptive Health Plan Provider Directories

Abigail Burman

Errors in health plans’ provider directories, also known as “ghost networks,” are a pernicious feature of the American health care system, with some studies showing that more than half of all directory entries contain errors. These errors disrupt patients’ access to care, can lead to large, unexpected bills, and undermine the regulatory structure of the entire health insurance market. They also exacerbate existing structural inequalities. While there have been attempts to reign in ghost networks through regulation, this article analyzes state-level data to demonstrate the failure of existing directory accuracy policies. In response to the shortcomings of current regulatory approaches, this article proposes an alternative policy framework to prevent directory errors; one that is focused on regular enforcement, consistent fines for noncompliance, and engaging as many actors as possible in the enforcement scheme. Finally, this article explains why large portions of the proposed policy framework would comply with ERISA, meaning that states could apply it to all health plans.

Substantive Pay Equality: Tips, Commissions, and How to Remedy the Pay Disparities They Inflict

Ryan H. Nelson

Empirical evidence shows that people of color tend to earn less in tips than their white coworkers, and people of color and women tend to earn less in commissions than their white, male coworkers. Moreover, a growing corpus of social science research suggests that neither tipping nor commissions are strict business necessities. Yet, scholars, courts, and practitioners have yet to recognize a disparate impact cause of action under Title VII of the Civil Rights Act of 1964 alleging that tipping and commissions cause employees to receive less pay because of race or sex and cannot be justified as job-related and consistent with business necessity.

Compassionate Release During Crises: Expanding Federal Court Powers

Yolanda Bustillo

As the coronavirus pandemic exacerbated existing racial, economic, and health disparities, it also raised questions concerning congressional intent, administrative rights, and federal court powers. These issues flooded court dockets as detained populations sought relief pursuant to the compassionate release provision of the First Step Act. Given the virus’s rapid development and fatal consequences, many prisoners found themselves pressed for time and disinclined to spend it exhausting statutorily-mandated administrative requirements. The question as to whether judges may develop equitable exceptions to these procedural requirements has remained unanswered. This Note responds in the affirmative, concluding the authority vests itself when remedies are unavailable.

The Remediless Reading Right

Shana Hurley

Lawmakers nationwide are trying to improve reading by embracing a scientific consensus regarding literacy acquisition and enacting robust regulatory regimes touching every part of the learning process. For most actors, “Right to Read” laws establish clear accountability rules and noncompliance remedies. However, students who are not provided with statutory reading entitlements have inconsistent or nonexistent remedies against their schools. As a result, states do not hold accountable educators using debunked instructional methods and schools failing to provide necessary interventions. And courts abstain from enforcing their entitlements based on anachronistic research and policy. This Note introduces the new literacy science and laws, arguing descriptively that Right to Read regimes are enforceable under an implied right of action or a statutory negligence claim. Nevertheless, it recommends that lawmakers enact a public enforcement scheme that would better serve the students most in need of support.

Twenty Years After the Passage of the Palermo Protocol: Identifying Common Flaws in Defining Trafficking through the First Global Study of Domestic Anti-Trafficking Laws

Soumya Silver

On November 15, 2000, the United Nations adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol). Twenty years later, with 178 state parties, the Palermo Protocol has reached almost universal ratification. While this is impressive, the actual implementation of the Protocol’s obligation to criminalize all forms of trafficking at the national level is even more notable. Presently, the vast majority of countries in the world criminalize trafficking in persons, as defined under international law. While this paper acknowledges and celebrates this uniformity, it also seeks to highlight some notable gaps in criminal provisions across dozens of countries’ current laws.