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Articles 1 - 30 of 40
Full-Text Articles in Law
Passport To Toledo: Cuno, The World Trade Organization, And The European Court Of Justice, Reuven S. Avi-Yonah
Passport To Toledo: Cuno, The World Trade Organization, And The European Court Of Justice, Reuven S. Avi-Yonah
Articles
The purpose of this article is to try to place the debate about Cuno v. DaimlerChrysler in a broader perspective by connecting it with the overall discussion of harmful tax competition. It discusses two hypothetical scenarios under which the city of Toledo, Ohio, is (a) a separate country and (b) a member state of the European Union. If the first hypothetical were true, the tax incentives offered by Toledo would violate the rules of the World Trade Organization; if the second hypothetical were true, the tax incentives would also violate the Treaty of Rome, as interpreted by the European Court …
Offshore Outsourcing And Workers Rights, Theodore J. St. Antoine
Offshore Outsourcing And Workers Rights, Theodore J. St. Antoine
Articles
No abstract provided.
A Government Of Limited Powers, Carl E. Schneider
A Government Of Limited Powers, Carl E. Schneider
Articles
Roscoe C. Filburn owned a small farm in Ohio where he raised poultry, dairy cows, and a modest acreage of winter wheat. Some wheat he fed his animals, some he sold, and some he kept for his family's daily bread. The Agricultural Adjustment Act of 1938 limited the wheat Mr. Filburn could grow without incurring penalties, but his 1941 crop exceeded those limits. Mr. Filburn sued. He said Claude Wickard, the Secretary of Agriculture, could not enforce the AAI's limits because Congress lacked authority to regulate wheat grown for one's own use. He reasoned: In our federal system, the states …
Hard Cases And The Politics Of Righteousness, Carl E. Schneider
Hard Cases And The Politics Of Righteousness, Carl E. Schneider
Articles
The law of bioethics has been the law of cases. Interpreting the common law and the Constitution, judges have written the law of informed consent, abortion, and assisted suicide. Reacting to causes célèbres, legislatures have written the law of advance directives and end of life decisions. The long, sad death of Terri Schiavo eclipsed even the long, sad deaths of Karen Ann Quinlan and Nancy Beth Cruzan in the duration and strength of the attention and passions it evoked. What are Schiavo’s lessons? Hard cases, lawyers say, make bad law. Why? First, hard cases are atypical cases. They present abnormal …
Guaranteed Payments Made In Kind By A Partnership, Douglas A. Kahn, Faith Cuenin
Guaranteed Payments Made In Kind By A Partnership, Douglas A. Kahn, Faith Cuenin
Articles
Guaranteed payments are payments made by a partnership to a partner for services performed in his partnership capacity or for the use of capital to the extent that the amount of the payment is not determined by reference to the partnership's income. In addition, some distributions made by a partnership in liquidation of a partner's interest in the partnership are treated as guaranteed payments. A guaranteed payment constitutes ordinary income to the partner, and the partnership is allowed a deduction for the payment unless it constitutes a capital expenditure. While guaranteed payments typically are made in cash, it is possible …
Regulation Of Companies With Publicly Listed Share Capital In The People's Republic Of China, Nicholas C. Howson
Regulation Of Companies With Publicly Listed Share Capital In The People's Republic Of China, Nicholas C. Howson
Articles
Mr. Chairman, colleagues, and friends: It is a great honor for me to be able to address this group of experts and legislators, and many colleagues and friends, on a topic I care deeply about-the regulation of so-called public companies, both outside of China and, since the early 1990s, inside of China. First, and with many of the others invited to participate in this conference today and tomorrow, I thank the Office of Legislative Affairs ("OLA") of the State Council of the People's Republic of China ("PRC") as well as the China Securities Regulatory Commission ("CSRC") for convening this very …
Reaching Disclosure, Carl E. Schneider
Reaching Disclosure, Carl E. Schneider
Articles
It is easy to forget but crucial to remember that when lawmakers decide to regulate an activity, they must select a method. The law of bioethics particularly favors one method-requiring disclosure of information. The doctrine of informed consent obliges doctors to tell patients their treatment choices. The administrative law of research ethics insists that researchers warn subjects of the risks of experiments. The Patient Self-Determination Act compels medical institutions to remind patients about advance directives. The federal government's new privacy regulations instruct medical institutions to describe their privacy regime to patients. Not just the law of bioethics, but health law …
After 70 Years Of The Nlrb: Warm Congratulations -- And A Few Reservations, Theodore J. St. Antoine
After 70 Years Of The Nlrb: Warm Congratulations -- And A Few Reservations, Theodore J. St. Antoine
Articles
The following essay is based on a talk the speaker was invited to deliver to the National Labor Relations Board on June 3 in Washington, D.C., on the occasion of the agency's 70th anniversary.
What Counts As Fraud? An Empirical Study Of Motions To Dismiss Under The Private Securities Litigation Reform Act, Adam C. Pritchard, Hillary A. Sale
What Counts As Fraud? An Empirical Study Of Motions To Dismiss Under The Private Securities Litigation Reform Act, Adam C. Pritchard, Hillary A. Sale
Articles
This article presents the findings of a study of the resolution of motions to dismiss securities fraud lawsuits since the passage of the Private Securities Litigation Reform Act (PSLRA) in 1995. Our sample consists of decisions on motions to dismiss in securities class actions by district and appellate courts in the Second and Ninth Circuits for cases filed after the passage of the Reform Act to the end of 2002. These circuits are the leading circuits for the filing of securities class actions and are generally recognized as representing two ends of the securities class action spectrum. Post-PSLRA, the Second …
Yale Kamisar: A Principled Man For All Seasons, Douglas A. Kahn
Yale Kamisar: A Principled Man For All Seasons, Douglas A. Kahn
Articles
Yale Kamisar began his distinguished career as a law professor in 1957 at the University of Minnesota Law School. For three years prior to joining the Minnesota faculty, Yale had been an associate with the Washington, D.C. law firm of Covington & Burling specializing in antitrust law. Understandably, Yale and Minnesota assumed that he would devote the major part of his research and teaching to antitrust. At that time, the study of criminal law was near the bottom of the hierarchy of law school topics, and so young faculty often were assigned the task of teaching criminal law as the …
The Cyclical Transformations Of The Corporate Form: A Historical Perspective On Corporate Social Responsibility, Reuven S. Avi-Yonah
The Cyclical Transformations Of The Corporate Form: A Historical Perspective On Corporate Social Responsibility, Reuven S. Avi-Yonah
Articles
This article describes the transformations underwent by the corporate form from its Roman origins to the present. It shows that every time there was a shift in the role of the corporation, three theories of the corporation (the aggregate, artificial, and real entity theories) were brought forward in cyclical fashion. Every time, however, the real entity theory prevailed, and it was the dominant theory during periods ofstability in the relationship between the corporation, the shareholders, and the state. The article describes this evolution in detail, and then attempts to derive normative consequences for the legitimacy of corporate social responsibility (CSR). …
Schiavo And Klein (Symposium), Evan H. Caminker
Schiavo And Klein (Symposium), Evan H. Caminker
Articles
When teaching federal courts, I sometimes find that students are slow to care about legal issues that initially seem picayune, hyper-technical, and unrelated to real-world concerns. It takes hard work to engage students in discussion of United States v. Klein,1 notwithstanding its apparent articulation of a foundational separation of powers principle that Congress may not dictate a "rule of decision" governing a case in federal court. A Civil War-era decision about the distribution of war spoils, one the Supreme Court has hardly ever cited since and then only to distinguish it, in cases involving takings and spotted owls? Yawn.
The Sec At 70: Time For Retirement?, Adam C. Pritchard
The Sec At 70: Time For Retirement?, Adam C. Pritchard
Articles
The Article proceeds as follows. Part I explains the pathologies of the SEC and explores the relation between those pathologies and the SEC's status as an independent agency. Part II then outlines an alternative regulatory structure primarily situated within the executive branch. I also argue that such a relocation of authority would enhance regulatory effectiveness while simultaneously reducing the cost of excessive regulation. The Article concludes with some thoughts about the viability of my proposal.
Procedural Incrementalism: A Model For International Bankruptcy, John A. E. Pottow
Procedural Incrementalism: A Model For International Bankruptcy, John A. E. Pottow
Articles
The headline-grabbing business failures of late have brought increased attention to the relatively unresolved area of multinational bankruptcies. Parmalat, Global Crossing, and United Airlines are among the few international juggernauts that have foundered. In the financial meltdowns of these cross-border institutions, assets and creditors are dispersed throughout commercial environments that rarely end neatly at national borders. There has been heated debate, both in scholarly literature and the practical battlefield, over how best to resolve these transnational insolvencies, and there is nothing yet approaching a consensus. Reform efforts of various stripes have almost uniformly failed to gain meaningful international support. At …
The Sec At 70: Time For Retirement?, Adam C. Pritchard
The Sec At 70: Time For Retirement?, Adam C. Pritchard
Articles
As one grows older, birthdays gradually shift from being celebratory events to more reflective occasions. One's 40th birthday is commemorated rather differently from one's 2lst, which is, in turn, celebrated quite differently from one's first. After a certain point, the individual birthdays become less important and it is the milestone years to whch we pay particular attention. Sadly for entities like the Securities and Exchange Commission, it is only the milestone years (the ones ending in five or zero, for some reason), that draw any attention at all. No one held a conference to celebrate the SEC's 67th anniversary. Clearly …
Another Tocqueville, Donald J. Herzog
Another Tocqueville, Donald J. Herzog
Articles
Time for a true confession: I'm skeptical of predictions in social and political life. Talk of causal generalizations and Hempel's covering laws strikes me as science fiction and fantasy in drag; talk of the unfolding of the immanent logic of modernity makes me dyspeptic. I usually think that structural considerations are context, not cause, and that weird combinations of stray contingencies explain what happens. Worse, now I'm called on to predict how political theorists will be discussing democracy ten years hence. Images of herding cats and Brownian motion come to mind. Nonetheless, duty calls. I dust off my crystal ball …
The Right Of States To Repatriate Former Refugees, James C. Hathaway
The Right Of States To Repatriate Former Refugees, James C. Hathaway
Articles
Armed conflict often results in the large-scale exodus of refugees into politically and economically fragile neighboring states. The burdens on asylum countries can be extreme, and may only be partly offset by the arrival of international aid and protection resources. Moreover, difficulties inherent in the provision of asylum have been exacerbated in recent years by the increasing disinclination of the wealthier countries that fund the United Nations High Commissioner for Refugees (UNHCR) and most other assistance agencies to meet the real costs of protection. In such circumstances, it is unsurprising that as conflicts wind down, host countries ordinarily seek to …
Crawford Surprises: Mostly Unpleasant, Richard D. Friedman
Crawford Surprises: Mostly Unpleasant, Richard D. Friedman
Articles
Crawford v. Washington should not have been surprising. The Confrontation Clause guarantees a criminal defendant the right "to be confronted with the witnesses against him." The doctrine of Ohio v. Roberts, treating the clause as a general proscription against the admission of hearsay-except hearsay that fits within a "firmly rooted" exception or is otherwise deemed reliable-had so little to do with the constitutional text, or with the history or principle behind it, that eventually it was bound to be discarded. And the appeal of a testimonial approach to the clause seemed sufficiently strong to yield high hopes that ultimately the …
All Of A Piece Throughout: The Four Ages Of U.S. International Taxation, Reuven S. Avi-Yonah
All Of A Piece Throughout: The Four Ages Of U.S. International Taxation, Reuven S. Avi-Yonah
Articles
This paper divides up the history of U.S. international taxation into four periods, on the basis of what was the basic theoretical principle underlying the major legislative enactments made in each period. The first period lasted from the adoption of the Foreign Tax Credit in 1918 to the end of the Eisenhower Administration, and was dominated by the concept of the right to tax as flowing from benefits conferred by the taxing state. The second period lasted from 1960 until the end of the Carter Administration, and was dominated by the concept of capital export neutrality and an emphasis on …
Detroit Area Study On Financial Services: What? Why? How?, Michael S. Barr
Detroit Area Study On Financial Services: What? Why? How?, Michael S. Barr
Articles
The following article is based on a talk give by Assistant Professor of Law Michael S. Barr to the University of Texas Law School-Harvard Law School Joint Conference on Commercial Law Realities in Austin, Texas, in April. Barr was selected by the University of Michigan’s Institute for Social Research, Survey Research Center to be the faculty investigator for the Detroit Area Study, which the University has conducted for more than 50 years. Barr is using the study to explore the financial services needs of low- and moderate-income households, building on his groundbreaking analysis in Banking the Poor. Barr raised a …
Grappling With The Meaning Of 'Testimonial', Richard D. Friedman
Grappling With The Meaning Of 'Testimonial', Richard D. Friedman
Articles
Crawford v. Washington, has adopted a testimonial approach to the Confrontation Clause of the Sixth Amendment. Under this approach, a statement that is deemed to be testimonial in nature may not be introduced at trial against an accused unless he has had an opportunity to cross-examine the person who made the statement and that person is unavailable to testify at trial. If a statement is not deemed to be testimonial, then the Confrontation Clause poses little if any obstacle to its admission.2 A great deal therefore now rides on the meaning of the word "testimonial."
Credit Where It Counts: The Community Reinvestment Act And Its Critics, Michael S. Barr
Credit Where It Counts: The Community Reinvestment Act And Its Critics, Michael S. Barr
Articles
Despite the depth and breadth of U.S. credit markets, low- and moderate-income communities and minority borrowers have not historically enjoyed full access to credit. The Community Reinvestment Act (CRA) was enacted in 1977 to help overcome barriers to credit that these groups faced. Scholars have long leveled numerous critiques against CRA as unnecessary, ineffectual, costly, and lawless. Many have argued that CRA should be eliminated. By contrast, I contend that market failures and discrimination justify governmental intervention and that CRA is a reasonable policy response to these problems. Using recent empirical evidence, I demonstrate that over the last decade CRA …
How Earl Warren's Twenty-Two Years In Law Enforcement Affected His Work As Chief Justice, Yale Kamisar
How Earl Warren's Twenty-Two Years In Law Enforcement Affected His Work As Chief Justice, Yale Kamisar
Articles
Before becoming governor of California, Earl Warren had spent his entire legal career, twenty-two years, in law enforcement. Professor Kamisar maintains that this experience significantly influenced Warren's work as a Supreme Court justice and gave him a unique perspective into police interrogation and other police practices. This article discusses some of Warren's experiences in law enforcement and searches for evidence of that experience in Warren's opinions. For example, when Warren was head of the Alameda County District Attorney's Office, he and his deputies not only relied on confessions in many homicide cases but also themselves interrogated homicide suspects. The seeds …
Central American-Dominican Republic Free Trade Agreement: Sources Of Information, Barbara H. Garavaglia
Central American-Dominican Republic Free Trade Agreement: Sources Of Information, Barbara H. Garavaglia
Articles
Globalization and fre trade are usually discussed in a political context in the United States as well as in other areas of the world. As a consequence, it can be difficult to find neutral, basic information about recent new trade agreements, such as the Central American-Dominican Republic Free Trade Agreement (CAFTA-DR), because much of the information found in the news or on the Web is polemical, and it takes time for the legal literature to provide the kind of legal analysis needed by practicing attorneys. This short piece is an attempt to provide links to free, Web-based information on CAFTA-DR …
Confrontation After Crawford, Richard D. Friedman
Confrontation After Crawford, Richard D. Friedman
Articles
The following edit excerpt, drawn from "The Confrontation Clause Re-Rooted and Transformed," 2003-04 Cato Supreme Court Review 439 (2004), by Law School Professor Richard D. Friedman, discusses the impact, effects, and questions generated by the U.S. Supreme Court's ruling in Crawford v. Washington last year that a defendant is entitled to confront and cross-examine any testimonial statement presented against him. In Crawford, the defendant, charged with attacking another man with a knife, contested the trial court's admission of a tape-recorded statement his wife made to police without giving him the opportunity to cross-examine. The tiral court admitted the statement, and …
Earl Warren: Law Enforcement Leads To Defendants' Rights, Yale Kamisar
Earl Warren: Law Enforcement Leads To Defendants' Rights, Yale Kamisar
Articles
Before becoming governor of California, Earl Warren spent 22 years in law enforcement: five as a deputy district attorney (1920- 25); thirteen as head of the Alameda County district attorney's office (1925-38); and four as state attorney general (1939-42). My thesis is that Warren's many years in law enforcement significantly affected his work as Chief Justice of the United States.
The Problem Of New Uses, Rebecca S. Eisenberg
The Problem Of New Uses, Rebecca S. Eisenberg
Articles
Discovering new uses for drugs that are already on the market seems like it ought to be the low-lying fruit of biopharmaceutical research and development (R&D). Firms have already made significant investments in developing these drugs and bringing them to market, including testing them in clinical trials, shepherding them through the FDA regulatory approval process, building production facilities, and training sales staff to market them to physicians. By this point, the drugs have begun to enjoy goodwill among patients and physicians and casual observations in the course of clinical experience may point to potential new uses. One might expect that …
The Real Impact Of Eliminating Affirmative Action In American Law Schools: An Empirical Critique Of Richard Sander's Study, David L. Chambers, Timothy T. Clydesdale, William C. Kidder, Richard O. Lempert
The Real Impact Of Eliminating Affirmative Action In American Law Schools: An Empirical Critique Of Richard Sander's Study, David L. Chambers, Timothy T. Clydesdale, William C. Kidder, Richard O. Lempert
Articles
In 1970, there were about 4000 African American lawyers in the United States. Today there are more than 40,000. The great majority of the 40,000 have attended schools that were once nearly all-white, and most were the beneficiaries of affirmative action in their admission to law school. American law schools and the American bar can justly take pride in the achievements of affirmative action: the training of tens of thousands of African American (as well as Latino, Asian American, and Native American) practitioners, community leaders, judges, and law professors; the integration of the American bar; the services that minority attorneys …
Is There A Subjective Element In The Refugee Convention's Requirement Of 'Well-Founded Fear'?, James C. Hathaway, William S. Hicks
Is There A Subjective Element In The Refugee Convention's Requirement Of 'Well-Founded Fear'?, James C. Hathaway, William S. Hicks
Articles
Linguistic ambiguity in the refugee definition's requirement of "well-founded fear" of being persecuted has given rise to a wide range of interpretations. There is general agreement that a fear is "well-founded" only if the refugee claimant faces an actual, forward-looking risk of being persecuted in her country of origin (the "objective element"). But it is less clear whether the well-founded "fear" standard also requires a showing that the applicant is not only genuinely at risk, but also stands in trepidation of being persecuted. Beyond vague references to the subjective quality of "fear," few courts or commentators have undertaken the task …
The Common Law Power Of The Legislature: Insurer Conversions And Charitable Funds, Jill R. Horwitz, Marion R. Fremont-Smith
The Common Law Power Of The Legislature: Insurer Conversions And Charitable Funds, Jill R. Horwitz, Marion R. Fremont-Smith
Articles
New York's Empire Blue Ccoss and Blue Shield conversion from nonprofic cofor profic form has considerable legal significance. Three aspects of the conversion ma.ke checase unique: the role of the scace legislature in directing the disposicion of the conversion assets, che face chac it made itself che primary beneficiary of chose assets, and the actions of che scace attorney general defending the state rather than che public inceresc in che charitable assets. Drawing on several cenruries of common Law rejecting the Legislacive power to direct the disposition of charitable funds, chis article argues chat the legislature lacked power cocontrol che …