UCLA Law Review Volume 60, Issue 2


The Battle Over Taxing Offshore Accounts

The international tax system is in the midst of a contest between automatic information reporting and anonymous withholding models for ensuring that nations have the ability to tax offshore accounts. At stake is the extent of many countries’ capacity to tax investment income of individuals and profits of closely held businesses through an income tax in an increasingly financially integrated world.

Incongruent initiatives of the European Union, the Organisation for Economic Cooperation and Development (OECD), Switzerland, and the United States together represent an emerging international regime in which financial institutions act to facilitate countries’ ability to tax their residents’ offshore accounts. The growing consensus that financial institutions should act as cross-border tax intermediaries represents a remarkable shift in international norms that has yet to be recognized in the academic literature.

The debate, however, is about how financial institutions should serve as cross-border tax intermediaries, and for which countries. Different outcomes in this contest portend starkly different futures for the extent of cross-border tax administrative assistance available to most countries. The triumph of an automatic information reporting model over an anonymous withholding model is key to (1) allowing for the taxation of principal, (2) ensuring that most countries are included in the benefit of financial institutions serving as cross-border tax intermediaries, (3) encouraging taxpayer engagement with the polity, and (4) supporting sovereign policy flexibility, especially in emerging and developing economies. This Article closes with proposals to help reconcile the emerging automatic information exchange approaches to produce an effective multilateral system.

The Structural Exceptionalism of Bankruptcy Administration

The current system of administration of the Bankruptcy Code is highly anomalous. It stands as one of the few major federal civil statutory regimes administered almost exclusively through adjudication in the courts—not through a federal regulatory agency. This means that rather than fitting bankruptcy into a regulatory model, the U.S. Congress has chosen to give the courts primary interpretive authority in the field of bankruptcy, delegating to courts the power to engage in residual policymaking.

Although scholars have noted some narrow aspects of the structural exceptionalism of bankruptcy administration, Congress’s decision to locate responsibility for bankruptcy policymaking almost exclusively with the federal judiciary, with little input from administrative agencies, has evaded scholarly attention. This Article aims to fill the gap by analyzing the congressional decision to locate residual policymaking power in the courts. After identifying the structural anomalies of the current court-centered model and some of the constitutional and policy-driven concerns that flow therefrom, this Article makes the case for moving bankruptcy toward an administrative model with a regulatory agency charged with setting bankruptcy policy. Such a shift away from bankruptcy exceptionalism could bring greater expertise, accountability, uniformity, accessibility, transparency, prospective clarity, and flexibility to policymaking in the bankruptcy arena. In addition, this shift could alleviate some of the constitutional issues that cast doubt on the legitimacy of our current system, such as Article III questions highlighted by the U.S. Supreme Court’s 2011 decision in Stern v. Marshall.

Patients’ Racial Preferences and the Medical Culture of Accommodation

One of medicine’s open secrets is that patients routinely refuse or demand medical treatment based on the assigned physician’s racial identity, and hospitals typically yield to patients’ racial preferences. This widely practiced, if rarely acknowledged, phenomenon—about which there is new empirical evidence—poses a fundamental dilemma for law, medicine, and ethics. It also raises difficult questions about how we should think about race, health, and individual autonomy in this context. Informed consent rules and common law battery dictate that a competent patient has an almost-unqualified right to refuse medical care, including treatment provided by an unwanted physician. Yet the accommodation of patients’ racial preferences with respect to their choice of physician in the hospital context appears to violate antidiscrimination principles. How should we reconcile this apparent conflict between respect for patient autonomy and accepted notions of racial equality? Moreover, is the accommodation of patients’ racial preferences the type of invidious discrimination that civil rights laws were enacted to prevent?

This Article engages these questions through an evaluation of antidiscrimination norms, principles of medical ethics, and federal laws, including Titles II, VI, and VII of the Civil Rights Act. In so doing, the Article offers critical insights into why a form of discrimination that is prohibited in other contexts is tolerated in the hospital setting and draws important conclusions about the legal propriety and medical efficacy of this practice. The Article contends that the various titles of the Civil Rights Act offer no clear legal directive on this practice, and it makes the counterintuitive claim that although hospital accommodation of patients’ racial preferences appears to contravene antidiscrimination principles, it is not only consistent with our normative commitments to racial equality but, in fact, constitutes an effective means of alleviating race-based health disparities, improving health outcomes, and quite possibly, saving patients’ lives.

“Not Susceptible to the Logic of Turner”: Johnson v. California and the Future of Gender Equal Protection Claims From Prisons

The U.S. Supreme Court’s Johnson v. California decision creates a new legal context for gender equal protection claims in the prison context. Johnson’s language and justifications create a space in prison jurisprudence where the deferential norms of Turner v. Safley are inapposite, and where deference rationales have no place. This Comment argues that this change is significant, and that it fundamentally alters several deference-specific doctrines that have emerged in gender equal protection claims by prison inmates. Specifically, this Comment argues that Johnson requires the removal of all prison deference rationales from protected-class equal protection claims, and that its careful set-aside includes gender claims. The requirement that plaintiffs show intentional discrimination for facially neutral policies will likely remain unchanged, given its presence outside the prison context and longstanding presence in equal protection law. Nevertheless, Johnson’s ultimate impact is a change in the standard of review for gender claims, the end of the Klinger v. Department of Corrections similar-situation standard, and the abandonment of the parity standard in favor of an equality standard.