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Articles 1 - 30 of 75
Full-Text Articles in Law
All In The Family As A Single Shareholder Of An S Corporation, Douglas A. Kahn, Jeffrey H. Kahn, Terrence G. Perris
All In The Family As A Single Shareholder Of An S Corporation, Douglas A. Kahn, Jeffrey H. Kahn, Terrence G. Perris
Articles
Subject to a few exceptions, a corporation that has elected to be taxed under subchapter S of chapter 1 of subtitle A of title 26 of the United States tax code is not taxed on its net income. Instead, the income, deductions, credits, and other tax items of an S corporation pass through to its shareholders on a pro rata basis. To qualify for subchapter S treatment, an electing corporation must satisfy the requirements that are set forth in section 1361, one of which is that the corporation can have no more than 100 shareholders. One aspect of that requirement …
The Cash Nexus, Carl E. Schneider
The Cash Nexus, Carl E. Schneider
Articles
Courts and legislatures have labored for decades to protect patients' choice of medical treatments, even though patients seize that gift less eagerly than lawmakers expect. Yet while courts have rushed to build the whited sepulchre of informed consent, they have fled from a related problem that patients actually yearn to solve and that actually can be ameliorated the plight of patients who perforce agree to a treatment before they know its costs and who receive a bill both unrelated to the treatment's value and several times what an insured patient would pay. Increasingly, patients must be consumers in the medical …
Optimal Tax Compliance And Penalties When The Law Is Uncertain, Kyle D. Logue
Optimal Tax Compliance And Penalties When The Law Is Uncertain, Kyle D. Logue
Articles
This article examines the optimal level of tax compliance and the optimal penalty for noncompliance in circumstances in which the substance of the tax law is uncertain - that is, when the precise application of the Internal Revenue Code to a particular situation is not clear. In such situations, a number of interesting questions arise. This article will consider two of them. First, as a normative matter, how certain should taxpayers be before they rely on a particular interpretation of a substantively uncertain tax rule? If a particular position is not clearly prohibited but neither is it clearly allowed, what …
The Internationalization Of Lay Legal Decision-Making: Jury Resurgence And Jury Research, Richard O. Lempert
The Internationalization Of Lay Legal Decision-Making: Jury Resurgence And Jury Research, Richard O. Lempert
Articles
When I first began to study the jury more than thirty years ago, the topic of this Journal issue, jury systems around the world, was unthinkable. The use of juries, especially in civil litigation, had long been in decline, to the point of near extinction in England, the land of their birth, and the live question was whether the jury system would endure in the United States. It seemed clear that juries would not continue in their classic form, as many U.S. states, with the Supreme Court's eventual approval, mandated juries of less than twelve people and allowed verdicts to …
A Creditable Vat?, Reuven S. Avi-Yonah
A Creditable Vat?, Reuven S. Avi-Yonah
Articles
In the early 1990s, Bolivia tried to adopt a popular U.S. tax reform proposal: replacing its corporate income tax with a cash-flow -type consumption tax, broadly similar in structure to taxes proposed by a long line of theorists from Prof. William Andrews in 1974 to the President's Advisory Panel on Federal Tax Reform in 2006. Unfortunately, the Bolivian experiment ran into an insuperable obstacle: the U.S. foreign tax credit (FTC) rules. The U.S. Treasury decided that the Bolivian tax would not be creditable for U.S. corporations investing in Bolivia. Given the importance of U.S. foreign direct investment (FDI) for Bolivia, …
The Puzzle Of Complete Preemption, Gil Seinfeld
The Puzzle Of Complete Preemption, Gil Seinfeld
Articles
Part I introduces the central themes in the law of federal question jurisdiction. It describes the prevailing interpretations of the constitutional and statutory texts governing the federal courts' jurisdiction to adjudicate disputes involving questions of federal law, and it explores the reasons for the establishment of such jurisdiction. This Part also introduces the well-pleaded complaint rule and examines the reasons for its adoption by the Supreme Court. Part II provides a detailed account of complete preemption doctrine, under which parties are permitted to usher state-law claims into the federal courts despite the apparent absence of any federal question on the …
Why Refugee Law Still Matters, James C. Hathaway
Why Refugee Law Still Matters, James C. Hathaway
Articles
I am concerned that the singular importance of international refugee law is profoundly misunderstood. My more specific worry is that erroneous and competing claims by governments and the refugee advocacy community about the structure and purpose of refugee law threaten its continuing ability to play a truly unique human rights role at a time when no meaningful alternative is in sight.
Beyond Mitigation: Towards A Theory Of Allocution, Kimberly A. Thomas
Beyond Mitigation: Towards A Theory Of Allocution, Kimberly A. Thomas
Articles
THE COURT: I don't think I have time to listen .... I am not going to reexamine your guilt or innocence here. That is not the purpose of a sentence.. THE DEFENDANT: I did not have the chance to tell you .... THE DEFENDANT: But, your Honor, listen to me-1 Should the court hear this defendant? Is the story of innocence relevant at allocution-the defendant's opportunity to speak on his or her own behalf at the sentencing hearing prior to the imposition of sentence? Or, is the purpose of allocution something different, as the judge suggests? The answers depend on …
Sources Of Presidential Papers And Documents On The Web, Barbara H. Garavaglia
Sources Of Presidential Papers And Documents On The Web, Barbara H. Garavaglia
Articles
The President of the United States and his staff produce a large volume of documents and other materials. These documents fall into two major categories. The first category is comprised of archival presidential materials such as papers, documents, visual and audio records of the presidency, and the personal papers of the president, his family, associates, and friends. This category of presidential material is primarily of interest to historians, political scientists, and other scholars because it provides "a comprehensive view of our Presidents and... [U.S.] history."1 The second category is comprised of presidential documents with legal effect used by the president …
Does Nonprofit Ownership Matter?, Jill R. Horwitz
Does Nonprofit Ownership Matter?, Jill R. Horwitz
Articles
In recent years, policymakers have increasingly questioned whether nonprofit institutions, particularly hospitals, merit tax exemption. They argue that nonprofit hospitals differ little from their for-profit counterparts in the provision of charity care and, therefore, should either lose their tax-exempt status or adhere to new, strict, and specific requirements to provide free services for the poor. In this Article, I present evidence that hospital ownership-whether it is for-profit, nonprofit, or government owned-has a significant effect on the mix of medical services it offers. Despite notoriously weak enforcement mechanisms, nonprofit hospitals act in the public interest by providing services that are unlikely …
The Meaning Of 'Necessary' In Gatt Article Xx And Gats Article Xiv: The Myth Of Cost-Benefit Balancing, Donald H. Regan
The Meaning Of 'Necessary' In Gatt Article Xx And Gats Article Xiv: The Myth Of Cost-Benefit Balancing, Donald H. Regan
Articles
Conventional wisdom tells us that in Korea–Beef, the Appellate Body interpreted the word ‘necessary’ in GATT Article XX to require a cost–benefit balancing test. The Appellate Body is supposed to have applied this test also in EC–Asbestos, US–Gambling (involving GATS Article XIV), and Dominican Republic–Cigarettes. In this article I demonstrate, by detailed analysis of the opinions, that the Appellate Body has never engaged in such balancing. They have stated the balancing test, but in every case they have also stated the principle that Members get to choose their own level of protection, which is logically inconsistent with judicial review by …
Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross
Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross
Articles
Bobby Lee Holmes was convicted of a brutal rape-murder and sentenced to death. The only evidence that connected him to the crime was forensic: a palm print, and blood and fiber evidence. (Biological samples taken from the victim for two rape kits were compromised and yielded no identifiable evidence.) Holmes claimed that the state's forensic evidence was planted and mishandled, and that the rape and murder were committed by another man, Jimmy McCaw White. At a pretrial hearing three witnesses testified that they saw White near the victim's house at about the time of the crime, and four others testified …
Private Liability For Reckless Consumer Lending, John A. E. Pottow
Private Liability For Reckless Consumer Lending, John A. E. Pottow
Articles
Congress recently enacted amendments to the Bankruptcy Code that possess the overarching theme of cracking down on debtors due to the increasing rate at which individuals have been filing for bankruptcy. Taking into account the correlation between the overall rise in consumer credit card debt and the rate of individual bankruptcy filings, the author nevertheless hypothesizes that not all credit card debt is troubling. Instead, the author proposes that the catalyst driving individual bankruptcy rates higher than ever is the level of "bad credit"-or credit extended to individuals even though there is a reasonable likelihood that the individual will be …
Branch Rickey, '11: Much More Than Pioneering Baseball Leader, Richard D. Friedman
Branch Rickey, '11: Much More Than Pioneering Baseball Leader, Richard D. Friedman
Articles
Branch Rickey is best known as the president and general manager of the Brooklyn Dodgers who brought Jackie Robinson into big league baseball in 1947, thus integrating a major American institution seven years before Brown v. Board of Education. Even apart from this heroic step, Rickey would probably be known as the most significant baseball executive ever, primarily for his work with the Dodgers and, earlier, the St. Louis Cardinals; the modern farm system and extensive spring training facilities are chief among his many innovations. Less well known is the fact that Rickey was a 1911 graduate of the University …
Insider Trading Rules Can Affect Attractiveness Of Country's Stock Markets, Laura Nyantung Beny
Insider Trading Rules Can Affect Attractiveness Of Country's Stock Markets, Laura Nyantung Beny
Articles
The academic debate about the desirability of prohibiting insider trading is longstanding and as yet unresolved. Until Henry Manne’s 1966 book, Insider Trading and the Stock Market, the debate centered on whether insider trading is unfair to public investors who are not privy to private corporate information. However, the fairness approach is malleable and indeterminate and thus does not lend itself to clear-cut policy prescriptions. Since Manne’s book, the focus of the debate has been on the effect of insider trading on economic efficiency. Manne argued that, contrary to the prevailing legal and moral opinion of the time, insider trading …
Why Sudan? Ambiguous Identities Forge Persistent Conflict, Laura Nyantung Beny
Why Sudan? Ambiguous Identities Forge Persistent Conflict, Laura Nyantung Beny
Articles
The following essay is excerpted from the prospectus for Perspectives on Genocide and Genocidal Violence in the Sudan, edited by Law School Assistant Professor Laura N. Beny, Sondra Hale of UCLA, and Lako Tongun of Claremont Colleges, California. The book is under advance contract for publication by the University of Michigan Press. Its 14 chapters, written by prominent historians, anthropologists, social scientists, political leaders, and others, “tell overlapping stories about the social constructions of race, gender, culture, and religious and political loyalties, each of which underlies the longstanding conflict” in Sudan, according to Beny, whose essay in the book is …
Is A Gift Forever?, William I. Miller
Is A Gift Forever?, William I. Miller
Articles
What are the rules regarding gifts you receive? Can you give them away? If so, must you conceal that you have done so from the original giver? Or is there a statute of limitations, after which any right the original giver has to feel wronged or to burden you with guilt for undervaluing it by giving it away rightly expires? Even an heirloom might exhaust its sacredness. Sometimes the sacred has a half-life, as might be the case, for instance, with your grandmother’s dining set. Can the giver ask for his gifts back if you try to give them away? …
Criminal Justice And The 1967 Detroit 'Riot', Yale Kamisar
Criminal Justice And The 1967 Detroit 'Riot', Yale Kamisar
Articles
Forty years ago the kindling of segregation, racism, and poverty burst into the flame of urban rioting in Detroit, Los Angeles, Newark, and other U.S. cities. The following essay is excerpted from a report by Professor Emeritus Yale Kamisar filed with the National Advisory Commission on Civil Disorders (the Kerner Commission) regarding the disorders that took place in Detroit July 23-28, 1967. The report provided significant material and was the subject of one article in the series of pieces on the anniversary of the disturbances that appeared last summer in The Michigan Citizen of Detroit. Immediately after the disturbances ended, …
Insider Trading Laws And Stock Markets Around The World: An Empirical Contribution To The Theoretical Law And Economics Debate, Laura Nyantung Beny
Insider Trading Laws And Stock Markets Around The World: An Empirical Contribution To The Theoretical Law And Economics Debate, Laura Nyantung Beny
Articles
The primary goal of this Article is to bring empirical evidence to bear on the heretofore largely theoretical law and economics debate about insider trading. The Article first summarizes various agency, market, and contractual (or "Coasian") theories of insider trading propounded over the course of this longstanding debate. The Article then proposes three testable hypotheses regarding the relationship between insider trading laws and several measures of stock market performance. Exploiting the natural variation of international data, the Article finds that more stringent insider trading laws are generally associated with more dispersed equity ownership, greater stock price accuracy and greater stock …
An Inclusive, Progressive National Savings And Financial Services Policy, Michael S. Barr
An Inclusive, Progressive National Savings And Financial Services Policy, Michael S. Barr
Articles
How many of us walk by the signs for "Checks Cashed Here," "Money Orders for Sale," and "Payday Loans: Get Cash Quick" without thinking about the implications of those signs for the daily lives of lower-income households? Most of us can take for granted getting our paychecks directly deposited into our bank accounts, writing a check, or storing our money in an account. We often struggle to save for longer-term goals, such as our children's education, or retirement, but most of us, most of the time, do not worry whether our savings or insurance will be enough to get us …
Crawford, Davis, And Way Beyond, Richard D. Friedman
Crawford, Davis, And Way Beyond, Richard D. Friedman
Articles
Until 1965, the Confrontation Clause of the Sixth Amendment to the United States Constitution hardly mattered. It was not applicable against the states, and therefore had no role whatsoever in the vast majority of prosecutions. Moreover, if a federal court was inclined to exclude evidence of an out-of-court statement, it made little practical difference whether the court termed the statement hearsay or held that the evidence did not comply with the Confrontation Clause.
Crawford And Davis: A Personal Reflection, Richard D. Friedman
Crawford And Davis: A Personal Reflection, Richard D. Friedman
Articles
I have to say that when I stood up to argue Hammon I felt the wind at my back. I was basically a lawyer with an easy case, and there wasn't anything particularly unpredictable at the argument of Hammon. Now it got a little bit interesting, as I will explain later, because to a certain extent I was trying to argue the other case as well. But Hammon itself was sort of ordinary, normal law.
Lawful Personal Use, Jessica D. Litman
Lawful Personal Use, Jessica D. Litman
Articles
Despite having sued more than 20,000 of its customers,2 the recording industry wants the world to know that it has no complaint with personal use. Copyright lawyers of all stripes agree that copyright includes a free zone in which individuals may make personal use of copyrighted works without legal liability.3 Unlike other nations, though, the United States hasn't drawn the borders of its lawful personal use zone by statute.4 Determining the circumstances under which personal use of copyrighted works will be deemed lawful is essentially a matter of inference and analogy, and differently striped copyright lawyers will differ vehemently on …
Regulatory Beneficiaries And Informal Agency Policymaking, Nina A. Mendelson
Regulatory Beneficiaries And Informal Agency Policymaking, Nina A. Mendelson
Articles
Administrative agencies frequently use guidance documents to set policy broadly and prospectively in areas ranging from Department of Education Title IX enforcement to Food and Drug Administration regulation of direct-to-consumer pharmaceutical advertising. In form, these guidances often closely resemble the policies agencies issue in ordinary notice-and-comment rulemaking. However, guidances are generally developed with little public participation and are often immune from judicial review. Nonetheless, guidances can prompt significant changes in behavior from those the agencies regulate. A number of commentators have guardedly defended the current state of affairs. Though guidances lack some important procedural safeguards, they can help agencies supervise …
Francis A. Allen--The Gainesville Years, Jerold H. Israel
Francis A. Allen--The Gainesville Years, Jerold H. Israel
Articles
If the legal academy had a Hall of Fame, Frank Allen would surely be a first ballot, unanimous selection.' His nominators need only recite the bare-bones record of his career-his publications, his public service, his years of accomplished teaching, and the many honors he received. That record is neatly capsulized in an obituary, published in the Gainesville Sun, largely written by Frank and June's son, Neil (Neil was also Franks's coauthor on Frank's last publication2). In a concise, precise fashion, reminiscent of Frank's own writings, the obituary not only describes Frank's many accomplishments, but also touches upon his character and …
On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar
On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar
Articles
Last year (the year I gave the talk on which this article is based) marked the fortieth anniversary of Miranda v. Arizona,' one of the most praised, most maligned-and probably one of the most misunderstood-Supreme Court cases in American history. It is difficult, if not impossible, to evaluate Miranda without looking back at the test for the admissibility of confessions that preceded it.
Televising The Court: A Category Mistake (Symposium On Televising The Supreme Court), Christina B. Whitman
Televising The Court: A Category Mistake (Symposium On Televising The Supreme Court), Christina B. Whitman
Articles
The idea of televising Supreme Court oral arguments is undeniably appealing. Consequently, it is not surprising that reporters and politicians have been pressuring the Court to take this step. The other branches have been media-friendly for years, and Supreme Court arguments are already open to the public. Why should those of us who neither reside in Washington, D.C. nor have the time to attend Court proceedings be asked to depend on reporters for descriptions of the event? Even lower courts permit cameras. There is an understandable hunger for anything that will help us understand these nine individuals who have so …
Nsf Fees, James J. White
Nsf Fees, James J. White
Articles
Overdraft fees now make up more than half of banks' earnings on consumer checking accounts. In the past century, overdrafts have gone from the banker's scourge to the banker's profit center as bankers have learned that there is much to be made on these short term loans at breathtaking interest rates. I note that the federal agencies have been complicit in the growth of this form of lending. I propose that the banks and the agencies recognize the reality and attempt to mitigate these rates by encouraging the development of a competitive market.
Class Gifts Under The Restatement (Third) Of Property, Lawrence W. Waggoner
Class Gifts Under The Restatement (Third) Of Property, Lawrence W. Waggoner
Articles
The new Restatement (Third) of Property (officially the Restatement (Third) of Property: Wills and Other Donative Transfers), in tandem with the Restatement (Third) of Trusts, is systematically proceeding through the whole field of wills, will substitutes, trusts, and estates. Both of the new Restatements should prove to be handy resources for trust and estate lawyers, not only in preparing to argue cases at both trial and appellate levels, but also in the everyday work of drafting and construing dispositive provisions in wills, trusts, and other types of donative documents. Each Restatement section is followed by a set of Comments explaining …
Double-Consciousness In Constitutional Adjudication, Richard A. Primus
Double-Consciousness In Constitutional Adjudication, Richard A. Primus
Articles
Constitutional theorists are familiar with epistemic and consequentialist reasons why judges might allow their decision making to be shaped by strongly held public opinion. The epistemic approach treats public opinion as an expert indicator, while the consequentialistapproach counsels judges to compromise legally correct interpretations so as not to antagonize a hostile public. But there is also a third reason, which we can think ofas constitutive. In limited circumstances, the fact that the public strongly holds a given view can be one of the factors that together constitute the correct answer to a constitutional question. In those circumstances, what the public …