Emory Law Journal

Volume 66Issue 2

Simplexity: Plain Language and the Tax Law

Joshua D. Blank & Leigh Osofsky | 66 Emory L.J. 189 (2017)

In recent years, federal government agencies have increasingly attempted to use plain language in written communications with the public. In the tax context, rather than achieving simplicity, which would involve reform of the underlying law, the use of plain language to describe complex legal rules and regulations often yields “simplexity.” As we define it, simplexity occurs when the government presents clear and simple explanations of the law without highlighting its underlying complexity or reducing this complexity through formal legal changes. Having introduced the concept of simplexity to the legal literature, we show how the IRS’s use of simplexity poses a trade-off between representing the tax law accurately and making it understandable to the public. We offer approaches for preserving some of the benefits of simplexity while also responding to some of its drawbacks. We also forecast the likely emergence of simplexity in potential future tax compliance measures.

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Software’s Copyright Anticommons

Clark D. Asay | 66 Emory L.J. 265 (2017)

This Article argues that copyright is an increasingly significant cause of anticommons concerns in the software context for at least two related reasons. First, the increasingly collaborative nature of much modern software innovation means that any given software resource is subject to dozens, hundreds, or even thousands of distinct copyright interests. While collaborative innovation licensing models help reduce the threat, these licensing models do not altogether eliminate such risks. Second, interoperability needs in the growing “Internet of Things” and “cloud” economies demand sharing and reuse of software for these ecosystems to work. Yet because these technological ecosystems implicate thousands of different parties with distinct copyright interests, the threat of those parties using its rights looms large. As a possible solution to these types of problems, this Article assesses the merits of more explicitly adapting copyright’s fair use defense to the collaborative and interconnected nature of modern software innovation.

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Precautionary Federalism and the Sharing Economy

Sarah E. Light | 66 Emory L.J. 333 (2017)

The rise of the sharing economy exposes cracks in legislative and regulatory regimes. To date, scholars and policymakers have focused primarily on whether and how the government should regulate the sharing economy—that is, on what form, if any, regulation should take. This Article focuses on a logically antecedent question—who should decide. Using the potentially significant, yet uncertain, environmental impacts of Uber and Lyft as a case study, this Article argues that regulatory authority should be allocated according to the principle of precautionary federalism. Precautionary federalism embodies a default presumption in favor of multiple regulatory voices, and against broad exercises of preemption under such conditions. And precautionary federalism is time-bound—it acknowledges that greater certainty about impacts may warrant a shift from one allocation of authority to another. This precautionary approach can serve an information-forcing function about the significance of uncertain impacts.

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Lichtenberger, Sparks, and Wicks: The Future of the Private Search Doctrine

Alexandra Gioseffi | 66 Emory L.J. 395 (2017)

Electronic devices are becoming increasingly prevalent in our daily lives, simultaneously replacing photo albums, address books, printed documents, and other, previously indispensable items. Electronic devices have even invaded a controversial area of Fourth Amendment jurisprudence: the private search doctrine. However, this doctrine’s application to electronic devices suffered from a dearth of existing law. Courts sought to fill this gap using two primary approaches: the container approach and the particularity approach. The container approach ignores the modern realities of electronic devices and the related privacy concerns. In contrast, the particularity approach accommodates these contemporary realities and increased privacy interests. This Comment concludes that courts should adopt the particularity approach to protect individuals from invasive government searches, in the true spirit of the Fourth Amendment.

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Cavity Filling or Root Canal? How Courts Should Apply North Carolina State Board of Dental Examiners v. FTC

Richard F. Walker III | 66 Emory L.J. 443 (2017)

This Comment argues that federal courts and the FTC should narrowly construe a recent Supreme Court decision restricting the scope of the antitrust state-action doctrine. In North Carolina State Board of Dental Examiners, the Supreme Court held that state boards controlled by active market participants must receive active state supervision to invoke state-action antitrust immunity. Notably, the majority opinion did not provide a test for determining whether active market participants control a state agency. Nor did it offer guidance on the adequate level of supervision states must provide to satisfy the active supervision requirement. States and courts can look to an FTC Staff Guidance Statement and the Parker together to suggest that N.C. Dental is amenable to an interpretation that does not eviscerate the antitrust state-action doctrine. What’s more, strong policy reasons support an interpretation of N.C. Dental that does not unduly trammel states’ rights.

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