Law Commons^™

Compensation Forfeiture: Stacking Remedies Against Disloyal Agents And Employees, George P. Roach

George P Roach

Compensation Forfeiture:

Stacking Remedies Against Disloyal Agents and Employees

Abstract

Four cases against outlaw CEO’s who defrauded their companies are reviewed to show the major impact that compensation forfeiture contributes to the total package of remedies awarded. The dual goals of remedies for breach of fiduciary duty of compensation and deterrence result in multiple remedies, generally including a remedy at law to compensate and a remedy in equity to disgorge any benefit from the breach. For claims that the fiduciary or agent breached her duty of loyalty, a third remedy of compensation forfeiture can be added or ‘stacked’ on top …

The Death Of Tax Court Exceptionalism, Stephanie Hoffer, Christopher J. Walker

Christopher J. Walker

Tax exceptionalism—the view that tax law does not have to play by the administrative law rules that govern the rest of the regulatory state—has come under attack in recent years. In 2011, the Supreme Court rejected such exceptionalism by holding that judicial review of the Treasury Department’s interpretations of the tax code is subject to the same Chevron deference regime that applies throughout the administrative state. The D.C. Circuit followed suit by rejecting the IRS’s position that its notices are not subject to judicial review under the Administrative Procedure Act (APA). This Article calls for the demise of another instance …

Aviation Emissions : Equity Issues, Nupur Chowdhury

Nupur Chowdhury

Aviation and Climate Change - Challenges on a global and equitable solution.

Quantitative Model For Measuing Line-Drawing Inequity, Bradley T. Borden

Bradley T. Borden

The law draws lines. It draws lines between manslaughter and murder, negligence and gross negligence, speeding and driving legally, and capital gains and ordinary income. Those lines invariably cause undesirable results. In particular, lines in the law cause inequity because they impose different treatment on similarly situated persons. Despite this inequity, analysts generally embrace the quantitative comforts of inefficiency analysis. This Article introduces a quantitative model for measuring inequity. Consequently, the preference for quantitative measures no longer justifies the disdain for inequity analysis. Instead, democratic and philosophical efforts to assess laws should embrace now-quantifiable inequity analyses as the analytical tools …

Young Again, Larry Yackle

Larry Yackle

This essay revisits an old problem in the law of federal courts: the source of the right of action in Ex parte Young. The Supreme Court’s 1908 decision in Young is primarily remembered for its treatment of state sovereign immunity. Yet the plaintiffs’ right of action (their entitlement to sue) presented an independent issue that has long been debated in academic circles. That question is again on the agenda inasmuch as Young figures in the current controversy about whether private litigants may routinely press preemption claims in federal court without explicit authorization from Congress. Proponents contend that preemption suits are …

Internation Equity And Human Development, Anthony C. Infanti

Anthony C. Infanti

In their 1972 essay “Inter-nation Equity,” Richard and Peggy Musgrave added a new dimension to discussions of tax equity by viewing the concept through an international lens. In this chapter written for a collection of essays on tax law and development, I add a new dimension to the Musgraves’ discussion of tax equity by laying a critical lens over their international lens and considering how tax equity might further human development.

In this chapter, I argue that it is time to shed the unbending focus on the economic dimension of people and the tax “exceptionalism” that unduly constrain both the …

The Equity Of The M/S Bremen And Its Extraordinary Influence, Graydon S. Staring

Graydon S. Staring

It is rare that an admiralty case will be widely influential in other fields of law. Such a one was the case of The Bremen. The Supreme Court unanimously renounced the past hostility to forum selection clauses and held them enforceable in Equity by way of admiralty, a precedent soon widely copied as a reform in common law. Note: The intention to publish a larger article on this subject has been abandoned.

Walking A Tightrope: The Role Of Equitable Discretion In Quantum Determination In Investment Treaty Law, Silke N. Kumpf

Silke Noa Kumpf

My thesis analyzes the manifestation of equitable arbitrator discretion in quantum determination and its role as a tool to balance treaty-based investor rights with extrinsic but competing international and public law obligations of States. I examine, first, scholarly opinions on the subject, second, arbitral practice through a content analysis of all past awards published by the International Centre for the Settlement of Investment Disputes (ICSID), which held liable respondent State for expropriation and, third, the results of an online survey I conducted with ICSID arbitrators, the lawyers that plead before them and the scholars that write about the topic in …

Three Cheers For Passthrough Taxation, Bradley T. Borden

Bradley T. Borden

This report addresses recent suggestions by the Obama administration, lawmakers, and others that some passthrough entities should be taxed as corporations. It argues that passthrough taxation is the correct regime, from a technical standpoint, for many business arrangements. Applying an entity tax to those structures would be inappropriate. The report argues that an entity tax would violate notions of equity by treating members of passthrough entities differently from individuals. Next it demonstrates that a tax on passthrough entities would shift a greater share of the tax burden to middle-income individuals. Finally, the report encourages the administration and lawmakers to increase …

The International Court Of Justice On Kosovo: Missed Opportunity Or Dispute 'Settlement'?, Daphne Richemond-Barak

Daphne Richemond-Barak

This article analyzes the reasons why the International Court of Justice chose to significantly narrow the scope of its advisory jurisdiction in its Kosovo opinion and, arguably, missed an opportunity to opine on important questions of international law (in particular, matters of recognition, secession, and self-determination). I argue that the Court's approach was driven by a desire to avoid exacerbating tensions between the two most interested parties, namely Kosovo and Serbia. Although the opinion was overwhelmingly perceived as pro-Kosovo in its immediate aftermath, a more thorough analysis suggests that the Court sought a delicate compromise between the positions of the …

Perspective On Economic Critiques Of Disability Law: The Multifaceted Federal Role In Balancing Equity And Efficiency, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

Given the recent enactment of the ADA Amendments Act, this article analyzes a Rawlsian philosophical framework with which to view society’s treatment of people with disabilities. Allocation of resources remains a pervasive concern of economists and attorneys alike. Need, merit, and market compete as means by which to decide who should receive what benefits. This article concludes that while economics can play a powerful role in the initial allocation of limited resources there remains a multifaceted federal role to confront discrimination and promote equity.

The Problem With Peremption, Sally Brown Richardson

Sally Brown Richardson

Peremption, in Louisiana law, is a mode of destroying rights due to nonuse. Though seemingly simple in definition, the application of peremption creates vast jurisprudential problems. The problems of peremption lie in the inequities the doctrine creates, its misapplication by courts, and the confusion it causes with other institutions that also temporally affect when a party may bring a cause of action. Given these issues, this article argues that the doctrine of peremption is in need of legislative overhaul and recommends four, alternative solutions to alleviate the identified problems. The article concludes by advocating for one of the particular legislative …

Emerging Law Addressing Climate Change And Water, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

The World Economic Forum recognizes that while restrictions on energy affect water systems and vice versa, energy and water policy are rarely coordinated. The International Panel on Climate Change predicts that wet places will become wetter and dry places will become dryer. Transboundary water, energy and climate coordination can occur through international consensus building.

The Like-Kind Exchange Equity Conundrum, Brad Borden

Bradley T. Borden

The tax-free treatment of like-kind exchanges presents one of tax law’s most compelling equity conundrums. Tax law generally does not tax property holders on the appreciation in the property’s value, but it does tax gain or loss recognized by property sellers and exchangers of non-like-kind property. In its basic Aristotelian form, equity requires that likes be treated alike, but it does not provide criteria for determining what is alike. Depending upon the criteria selected, exchangers of like-kind property can be similar to holders, or similar to sellers and exchangers of non-like-kind property. The equity conundrum is whether tax law should …

Like-Kind Exchanges Of Personal-Use Residences, Brad Borden, Alex Hamrick

Bradley T. Borden

The law governing section 1031 exchanges of personal-use residences ranges from very explicit, in the case of principal residences, to very vague, in the case of mixed-use second homes. The law excludes from section 1031 nonrecognition exchanges of property used solely for personal use. The IRS has provided guidance regarding exchanges of mixed-use principal residences and has provided an all-or-nothing safe harbor with limited applicability for exchanges of mixed-use second homes. To complete the body of law governing exchanges of personal-use residences, this article suggests that the IRS should provide broader guidance for exchanges of mixed-use second homes.

Tax Equity, Anthony C. Infanti

Anthony C. Infanti

Simply put, this article stands the traditional concept of tax equity on its head. Challenging the notion that tax equity is an unequivocal good, this article deconstructs the concept of tax equity to reveal the subtle, yet pernicious ways in which it shapes tax policy debates and impinges upon contributions to those debates. The article describes how tax equity, with its narrow focus on “income” as the sole relevant metric for judging tax fairness, presupposes a population that is homogeneous along all other lines. Through this insidious homogenization, tax equity performs both a sanitizing and a screening function in the …

Strict Liability And The Liberal-Justice Theory Of Torts, Alan Calnan

Alan Calnan

Abstract Tort scholars disagree about the relative priority of fault and strict liability. Economists prefer the clearer and more efficient theory of strict liability to the vaguer and more complicated concept of fault. Moralists, by contrast, prefer the deep moral or deontological idea of fault to the more sterile rule of strict liability. Ironically, both economists and moralists often base their views on liberal principles. Economists rely on the political dimension of liberalism, arguing that tort law should interfere with free market transactions only rarely, and even then, only with clear rules that minimize accident costs. Not surprisingly, moralists rely …

Ex Aequo Et Bono: De-Mystifying An Ancient Concept, Leon E. Trakman

Leon E Trakman Dean

The ancient concept, ex aequo et bono, holds that adjudicators should decide disputes according to that which is “fair,” and in “good conscience”. Despite its long history in international adjudication and even though it is enshrined in the Charter of the Permanent Court of International Justice, the concept of ex aequo et bono is often avoided on grounds that it operates outside of law, or is deemed to be contrary to law. This article argues that the concept has a valuable and emerging significance in modern law. It is ideally suited to resolving disputes between parties who are engaged in …

The Many Faces Of Equity In Private Law. A Survey Of The European Civil Law, Francesca Fiorentini Prof., Mauro Bussani Prof.

Francesca Fiorentini Prof.

No abstract provided.

A Shallow Fix: The Uniform Environmental Covenants Act Leaves Hard Brownfield Questions Unanswered, Paul Stanton Kibel

Paul Stanton Kibel

No abstract provided.

Law As Largess: Shifting Paradigms Of Law For The Poor, Deborah M. Weissman

Deborah M. Weissman

The article examines the tension between the principles of the Rule of Law and cultural norms of self-sufficiency. It begins by reviewing the principles of the Rule of Law as an ideal, the pursuit of which has led to historical efforts to meet the legal needs of the poor. It then examines recent legal events including federal statutory changes, three Supreme Court cases, and a federal circuit court case which have limited legal resources for those who cannot pay. The article then examines these developments in the context of a sea-change in the political environment of the nation, coinciding with …

It's A Wonderful Life Insurance Policy: Determining The Correct Theory To Tax The Employee In Employer-Pay-All Equity Split-Dollar Life Insurance Arrangements, I Jay Katz

Irwin J Katz

A look at the taxation of split-dollar life insurance at the height of its popularity.