VOLUME 170, ISSUE 2 January 2022

The use of economic statecraft is at a high-water mark. The United States uses sanctions, tariffs, and import and export controls more than ever before. These tools have problems, though. They impose financial costs on domestic interests. They can induce retaliation by target states. And overuse of these tools could drive the United States from its central position in the global financial and economic system, undermining the effectiveness of U.S. economic statecraft in the long run. But there is an underappreciated tool that could perform valuable foreign policy work: tax law. We argue that tax law holds promise to advance U.S. foreign policy interests and that it is especially important to deploy tax tools now. Tax law has distinctive features that make it both a partial substitute and a partial complement to other tools of economic coercion, which means that it can extend the influence of U.S. economic power while reducing the risk of overusing other economic tools.

Statutory interpretation is a unique legal field that appreciates fiction as much as fact. For years, judges and scholars have acknowledged that canons of interpretation are often based on erudite assumptions of how Congress drafts federal statutes. But a recent surge in legal realism has shown just how erroneous many of these assumptions are. Scholars have created a robust study of congressional practices that challenge many formalist canons of interpretation that are divorced from how Congress thinks about, drafts, and enacts federal statutes. This conversation, however, has yet to confront statutory incorporation, which describes when Congress incorporates state law into federal statutes. Statutory incorporation is one of the most common legislative tools employed by Congress and has been used to enact hundreds of federal statutes that affect liberty and property rights across multiple areas of law. Traditional analyses of statutory incorporation argue that it allows Congress to achieve goals of federalism and/or delegation, both of which empower state governments to shape federal policies. But this traditional narrative falls short when held up to the scrutiny of statutory realism.

Recent instances of law enforcement killing community members and ensuing social movements have increased public attention on the issue of police use of force and the lack of officer accountability. Qualified immunity has been central to this discussion because the doctrine is often used to shield officers from civil lawsuits when plaintiffs bring constitutional tort claims under 42 U.S.C. § 1983. The traditional understanding of qualified immunity as applied to excessive force cases is that it tracks the history of the doctrine itself. It is widely accepted that the doctrine began to thwart excessive force claims against police right after it emerged for the first time in 1967 with Pierson v. Ray—a false arrest case that created a subjective good faith defense for some § 1983 claims. Most assume this influence continued as qualified immunity took on its modern form in 1982 with Harlow v. Fitzgerald—an executive privileges case that created an objective qualified immunity test relative to clearly established law. With this standard narrative, it is largely thought that these early cases on qualified immunity in the contexts of false arrests and executive branch privileges naturally, immediately, and seamlessly became a significant constraint on plaintiffs’ § 1983 excessive force claims against police officers.