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Articles 31 - 60 of 75
Full-Text Articles in Entire DC Network
The Control Of Avoidance: The United States Alternative, John Tiley, Erik M. Jensen
The Control Of Avoidance: The United States Alternative, John Tiley, Erik M. Jensen
Faculty Publications
This article, jointly written by a British and an American academic, describes the American experience in identifying and attacking tax avoidance. The article was part of a symposium issue of the British Tax Review, published by Sweet and Maxwell, devoted to tax avoidance issues around the globe.
Critical Theory And The Loneliness Of The Tax Prof, Erik M. Jensen
Critical Theory And The Loneliness Of The Tax Prof, Erik M. Jensen
Faculty Publications
This essay, prepared for a symposium on critical theory and tax law, has two goals: to suggest why feminist theory and critical race theory are spreading in taxation and to discuss some dangers of that criticism. The author evaluates three examples of the new criticism: an article on critical race theory by Professors Moran and Whitford; an article on feminist statutory interpretation by Professor Handelman; and a book, Taxing Women, by Professor McCaffery.
The Apportionment Of ‘Direct Taxes’: Are Consumption Taxes Constitutional?, Erik M. Jensen
The Apportionment Of ‘Direct Taxes’: Are Consumption Taxes Constitutional?, Erik M. Jensen
Faculty Publications
In debates about reorienting the American revenue system, nearly everyone assumes the Constitution is irrelevant. With few exceptions, the tax provisions in the original Constitution - particularly the direct-tax apportionment rule and the uniformity rule - have been interpreted to be paper tigers. And in only one major case has the Sixteenth Amendment, which excepts "taxes on incomes" from apportionment, been held to limit congressional power.
S Rejecting conventional wisdom, this Article argues that some consumption taxes would violate constitutional norms. The Article focuses on the requirement that “direct taxes” be apportioned among the states on the basis of population. …
American Indian Tribes And Secession, Erik M. Jensen
American Indian Tribes And Secession, Erik M. Jensen
Faculty Publications
Critics of American Indian law have often complained about federal interference in the internal affairs of American Indian nations. The author ponders how independent the critics really want American Indian nations to be and whether secession theory might help us think about the theory and practice of really independent American Indian nations.
Tough On Scholarship, Erik M. Jensen
Tough On Scholarship, Erik M. Jensen
Faculty Publications
This series of three articles (that's why it's a trilogy, duh-h-h) chronicles the legal-academic career of one S. Breckinridge Tushingham ("Breck" for short). As the trilogy unfolds, Breck works his way up (or maybe it's down) from his first academic position to an established professorship to dean of the South Soybean (Soso) State University law school. In the process of recording his professional history, and thus memorializing it for the ages, Breck provides (probably defamatory) insights into the American legal academy.
The Unwritten Article, Erik M. Jensen
The Unwritten Article, Erik M. Jensen
Faculty Publications
A law review article without footnotes? Unthinkable. But what about an article with only footnotes - and footnotes to footnotes? Thinkable. And here it is.
Performance Scholarship And The Internal Revenue Code, Erik M. Jensen
Performance Scholarship And The Internal Revenue Code, Erik M. Jensen
Faculty Publications
If we can have performance art-and we can-why not performance scholarship? This commentary suggests an entirely new scholarly emphasis for legal academics. (OK, it's not entirely new, but it's new for those of us not teaching trial practice.)
A Monologue On The Taxation Of Business Gifts, Erik M. Jensen
A Monologue On The Taxation Of Business Gifts, Erik M. Jensen
Faculty Publications
This series of three articles (that's why it's a trilogy, duh-h-h) chronicles the legal-academic career of one S. Breckinridge Tushingham ("Breck" for short). As the trilogy unfolds, Breck works his way up (or maybe it's down) from his first academic position to an established professorship to dean of the South Soybean (Soso) State University law school. In the process of recording his professional history, and thus memorializing it for the ages, Breck provides (probably defamatory) insights into the American legal academy.
A Day In The Life Of S. Breckinridge Tushingham, Erik M. Jensen
A Day In The Life Of S. Breckinridge Tushingham, Erik M. Jensen
Faculty Publications
This series of three articles (that's why it's a trilogy, duh-h-h) chronicles the legal-academic career of one S. Breckinridge Tushingham ("Breck" for short). As the trilogy unfolds, Breck works his way up (or maybe it's down) from his first academic position to an established professorship to dean of the South Soybean (Soso) State University law school. In the process of recording his professional history, and thus memorializing it for the ages, Breck provides (probably defamatory) insights into the American legal academy.
Law Review Correspondence: Better Read Than Dead?, Erik M. Jensen
Law Review Correspondence: Better Read Than Dead?, Erik M. Jensen
Faculty Publications
These essays were part of a mini-symposium, “Of Correspondence and Commentary,” published by the Connecticut Law Review. At the time, a number of prominent law reviews had begun to publish “correspondence,” shorter pieces generally commenting on work published in the reviews. Whatever they were called, however, these pieces looked an awful lot like articles, complete with footnotes, titles with colons, and other law-review-type stuff. The author used the creation of correspondence sections to ruminate on the nature of legal scholarship, as published in student-edited law reviews, and in particular to wonder whether authors were using correspondence sections as backdoor ways …
The Imaginary Connection Between The Great Law Of Peace And The United States Constitution: A Reply To Professor Schaaf, Erik M. Jensen
The Imaginary Connection Between The Great Law Of Peace And The United States Constitution: A Reply To Professor Schaaf, Erik M. Jensen
Faculty Publications
This article challenges the politically correct theory advanced in a 1989 article by Gregory Schaaf, “From the Great Law of Peace to the Constitution of the United States: A Revision of America’s Democratic Roots.” Professor Schaaf argued that large parts of the U.S. Constitution were based on the Great Law of Peace, the founding document of the Iroquois Confederacy. This article points to the lack of primary authority supporting such a counterintuitive proposition and questions the likelihood that Iroquois principles could have silently influenced American founders. Finally, the article questions whether it is desirable to try to further the status …
A Call For A New Buffalo Law Scholarship, Erik M. Jensen
A Call For A New Buffalo Law Scholarship, Erik M. Jensen
Faculty Publications
Those who haven't been paying attention to buffalo law should.
Commentary: Food For Thought And Thoughts About Food: Can Meals And Lodging Provided To Domestic Servants Be For The Convenience Of The Employer?, Erik M. Jensen
Faculty Publications
This commentary considers one of the least important issues in tax law: whether the value of meals and lodging provided to domestic servants is excludable from the servants' gross income under section 119 of the Internal Revenue Code. Trivial though the issue is, the author goes on and on-and on, arguing that an example in the regulations under section 119, which concludes that the "business premises of the employer" requirement would be satisfied in such a situation, is misleading in its implications. It's not enough that the meals and lodging be provided on the business premises of the employer to …
The Law Review Manuscript Glut: The Need For Guidelines, Erik M. Jensen
The Law Review Manuscript Glut: The Need For Guidelines, Erik M. Jensen
Faculty Publications
Legal academics generally publish in student-edited journals that have no sole-submission requirement, and it is common for authors to submit articles to dozens of journals at a time. As a result, law reviews are buried in manuscripts. Most manuscripts cannot even be looked at, much less evaluated, and there’s not much reason for evaluation anyway: a journal has little chance to publish any particular article. In short, the legal publication system is broken. (Indeed, given the ease and trivial cost of electronic submission - why not submit the article on artichoke law to Yale as well as So-So State? - …
The Supreme Court And The Timing Of Deductions For Accrual-Basis Taxpayers, Erik M. Jensen
The Supreme Court And The Timing Of Deductions For Accrual-Basis Taxpayers, Erik M. Jensen
Faculty Publications
This article examines the Supreme Court's two decisions in the late 1980s dealing with the timing of deductions, United States v. Hughes Properties (1986) and United States v. General Dynamics Corp. (1987), and finds those decisions wanting. Indeed, it is hard to understand why the Court exercised its discretionary jurisdiction twice in such a short period when the cases involved technicalities that seemed to overwhelm the generalist justices and when subsequent disputes with similar factual situations would be affected by statutory changes.
Commentary: The Extraordinary Revival Of Dred Scott, Erik M. Jensen
Commentary: The Extraordinary Revival Of Dred Scott, Erik M. Jensen
Faculty Publications
In a widely reprinted 1987 speech, Justice Thurgood Marshall characterized the Supreme Court's decision in Dred Scott v. Sandford as accurately reflecting the Founders' views on many subjects, including race. The author argues that Dred Scott was dead wrong on almost all counts-as many contemporaneous commentators, including Abraham Lincoln, understood. It was not helpful to our understanding of history and constitutional law for Justice Marshall to have resuscitated this horribly misguided decision.
Taxation, The Student Athlete, And The Professionalization Of College Athletics, Erik M. Jensen
Taxation, The Student Athlete, And The Professionalization Of College Athletics, Erik M. Jensen
Faculty Publications
It has become common to hear critics argue that big-time college athletes are being exploited by their institutions and that they should be paid fair market value for their services. This article argues that such a policy, if adopted, could have some unexpected consequences for the colleges. The traditional justification for not taxing athletic income (basically meaning, for most big-time schools, that from football and basketball) is that the participants are student athletes, that the activities are related to the colleges’ overall educational purposes, and that the athletic revenue is therefore not subject to the tax on unrelated business income. …
Monroe G. Mckay And American Indian Law: In Honor Of Judge Mckay’S Tenth Anniversary On The Federal Bench, Erik M. Jensen
Monroe G. Mckay And American Indian Law: In Honor Of Judge Mckay’S Tenth Anniversary On The Federal Bench, Erik M. Jensen
Faculty Publications
This essay, written in honor of Judge Monroe G. McKay's tenth anniversary as a member of the United States Court of Appeals for the Tenth Circuit, considers the difficulty of justifying a separatist policy for the American Indian; examines the opinions authored by Judge McKay in American Indian law cases; and discusses the McKay opinions and the issue of separation.
Hughes Properties And General Dynamics: The Supreme Court, The All Events Test, And The 1984 Tax Act, Erik M. Jensen
Hughes Properties And General Dynamics: The Supreme Court, The All Events Test, And The 1984 Tax Act, Erik M. Jensen
Faculty Publications
This article discusses United States v. Hughes Properties, a 1986 case in which the Supreme Court blessed an accrual-basis taxpayer's current deduction for amounts guaranteed as payoffs on progressive slot machines but for which no winner had yet been determined. The author notes that, had the case been governed by section 461(h) of the Internal Revenue Code, as it was amended by the 1984 Tax Reform Act, the deductions would have been deferred. He speculates about the Supreme Court's willingness to decide an issue rendered moot by subsequent legislation, and ponders the effect that the decision in Hughes Properties will …
The Deduction Of Future Liabilities By Accrual-Basis TaxPayers: Premature Accruals, The All Events Test, And EcoNomic Performance, Erik M. Jensen
The Deduction Of Future Liabilities By Accrual-Basis TaxPayers: Premature Accruals, The All Events Test, And EcoNomic Performance, Erik M. Jensen
Faculty Publications
Written during the Paleozoic era, this article considers the timing of deductions by accrual-basis taxpayers. The article considers timing problems under pre-1984 prior law, where the benefit of a deduction for a future obligation could provide grossly inflated tax benefits; the limitations of the all events test as the sole determinant of timing; and the effect of statutory changes made by the Tax Reform Act of 1984, which require that a deduction be deferred until "economic performance" has occurred.
The Uneasy Justification For Special Treatment Of Like-Kind Exchanges, Erik M. Jensen
The Uneasy Justification For Special Treatment Of Like-Kind Exchanges, Erik M. Jensen
Faculty Publications
This article considered the traditional justifications for nonrecognition treatment for like-kind exchanges, as provided in section 1031 of the Internal Revenue Code, and found them wanting. The article nevertheless concluded that, even though the justifications are imperfect, section 1031 has some plausibility to it, at least as applied to traditional, simultaneous exchanges.
Note, The Standard Of Proof Of Causation In Legal Malpractice Cases, Erik M. Jensen
Note, The Standard Of Proof Of Causation In Legal Malpractice Cases, Erik M. Jensen
Faculty Publications
This note argues that the use of a but for standard of causation in legal malpractice cases - i.e., that the plaintiff must show that but for the malpractice he or she would have prevailed in the underlying action - is too stringent, making recovery unreasonably difficult. The note therefore argues for implementation of a lost substantial possibility of recovery standard. This is just a student note, and an old one at that, but a lot of courts and commentators have cited it. In any event, modesty and self-restraint seem to play little role when authors are deciding what to …
The Penumbral Public Domain: Constitutional Limits On Quasi-Copyright Legislation, Aaron K. Perzanowski
The Penumbral Public Domain: Constitutional Limits On Quasi-Copyright Legislation, Aaron K. Perzanowski
Faculty Publications
This Article attempts to reconcile the breadth of the modern Commerce Clause with the notion of meaningful and enforceable limits on Congress' copyright authority under Article I, Section 8, Clause 8.
The Article aims to achieve two objectives. First, it seeks to outline a general approach to identifying and resolving inter-clause conflicts, sketching a methodology that has been lacking in the courts' sparse treatment of such conflicts. Second, it applies that general framework to the copyright power in order to outline the scope of constitutional prohibitions against quasi-copyright protections. In particular, this application focuses on the federal anti-bootlegging statutes and …
The Magnificence Of The Disaster: Reconstructing The Sony Bmg Rootkit Incident, Deirdre Mulligan, Aaron K. Perzanowski
The Magnificence Of The Disaster: Reconstructing The Sony Bmg Rootkit Incident, Deirdre Mulligan, Aaron K. Perzanowski
Faculty Publications
Late in 2005, Sony BMG released millions of Compact Discs containing digital rights management technologies that threatened the security of its customers' computers and the integrity of the information infrastructure more broadly. This Article aims to identify the market, technological, and legal factors that appear to have led a presumably rational actor toward a strategy that in retrospect appears obviously and fundamentally misguided.
The Article first addresses the market-based rationales that likely influenced Sony BMG's deployment of these DRM systems and reveals that even the most charitable interpretation of Sony BMG's internal strategizing demonstrates a failure to adequately value security …
Frank Meyer: The Fusionist As Federalist, Publius, Jonathan H. Adler
Frank Meyer: The Fusionist As Federalist, Publius, Jonathan H. Adler
Faculty Publications
Frank S. Meyer played a central role in defining the post-war American conservative movement. Through his writings and political activities, he defined and defended an ideological "fusion" of traditional conservative principles and libertarian political beliefs. While concerned with maintenance of an objective moral order and the pursuit of virtue in the individual, Meyer argued that the freedom of the person is the central and primary end of political society. The American system of government, with its horizontal and vertical separations of power, came closer than any political system in history to providing the protection for individual liberties necessary for the …
Rules, Standards, And The Internal Point Of View, Dale A. Nance
Rules, Standards, And The Internal Point Of View, Dale A. Nance
Faculty Publications
The general thrust of the present discussion is that, in addition to its contribution to economizing on enforcement costs, there is a connection between the internal point of view and the aspiration to republican self-government: the greater the incidence of the former, the greater the achievement of the latter, ceteris paribus. This fact imbues the notion of a healthy legal system with a crucially normative component that goes beyond, and need not be inconsistent with, efficient social organization.
Science, Politics, And Reproductive Rights Introduction, Health Matrix: Journal Of Law-Medicine - Introduction, B. Jessie Hill
Science, Politics, And Reproductive Rights Introduction, Health Matrix: Journal Of Law-Medicine - Introduction, B. Jessie Hill
Faculty Publications
Introduction to the Symposium: Science, Politics, and Reproductive Rights, Cleveland, Ohio.
Note: Legal Excisions: The Rights Of Foreigners In Japan, Timothy Webster
Note: Legal Excisions: The Rights Of Foreigners In Japan, Timothy Webster
Faculty Publications
This article examines various moments in the constitutional rights of foreigners in Japan. Beginning with the drafting of the Japanese Constitution, it shows how Japanese members of the drafting committee did not passively accept whatever their American counterparts “foisted” on them, but quite deliberately sculpted and limited the reach of the Constitution through word choice and selective translation. It then examines several lawsuits, from the 1970s to the 2000s, where foreigners have asserted various rights in Japanese courts. In the absence of constitutional rights, foreigners must rely on Japanese statutory law, guided by international law, to buttress their claims to …
Introduction: “Atrocious Judges” And “Odious” Courts Revisited, Robert N. Strassfeld
Introduction: “Atrocious Judges” And “Odious” Courts Revisited, Robert N. Strassfeld
Faculty Publications
Introduction to the symposium "Judicial Independence and Judicial Accountability: Searching for the Right Baalance," Cleveland, Ohio.
From The Exile Files: An Essay On Trading Justice For Peace, Michael P. Scharf
From The Exile Files: An Essay On Trading Justice For Peace, Michael P. Scharf
Faculty Publications
In the spring and summer of 2003, the United States offered exile in lieu of invasion and prosecution to two rogue leaders accused of committing international crimes - Iraqi President Saddam Hussein (who declined) and Liberian President Charles Taylor (who accepted). In this essay, the author argues that the offer to Hussein was inappropriate, as it violated international treaties requiring prosecution, but that the offer to Taylor was permissible under international law. The essay examines the costs and benefits of amnesty and exile-for-peace deals and the limited nature of the international duty to prosecute. Where the duty to prosecute does …