Law Commons^™

Whirlpool’S Subpart F Position Was Inconsistent With Congressional Intent, Jeffery M. Kadet

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I believe that Whirlpool took an untenable position on allocation in its 2009 tax filings. The Tax Court in its Whirlpool decision corrected this position using a reasonable approach that used the taxpayer’s own accounting. Now, in their article, Yoder et al. have labeled the Tax Court’s approach a “fundamental flaw” while championing Whirlpool’s position. Considering this situation, it is critical that Treasury and the IRS add appropriate guidance to reg. section 1.954-3. This would clarify that in the case of sales to related or unrelated persons, with no locally based sales personnel and where group personnel in other locations …

"Communities That Care": Incorporating Socially Engaged Artistic Practices Into Clinical Legal Education, Bernard P. Perlmutter, Xavier Cortada

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This Article, co-authored by a law school clinician and an artist and lawyer, explores collaborations between the artist, a child advocacy clinic, and its clients (children in state foster care) in building a community that empowers clients by giving them voice through both traditional legal advocacy and non-traditional forms of socially engaged artistic expression. The Article aims to address some of the challenges and benefits of clinics creating alliances with artists and community-based arts organizations as part of their teaching and advocacy missions. We describe and provide examples of the practice of law as a creative exercise and argue that …

Telegraph, Telephone And The Internet: The Making Of The Symbiotic Model Of Surveillance States, Dongsheng Zang

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In the early 2000s, shortly before the September 11 attacks, Daniel J. Solove noted that computer databases in the United States were controlled by public as well as private bureaucracies. In that sense, Solove argued, the "Big Brother" metaphor "fails to capture the most important dimension of the database problem." In his 2008 Lockhart lecture, constitutional law scholar Jack M. Balkin argued that the United States has gradually transformed from a welfare and national security state to a National Surveillance State: "a new form of governance that features the collection, collation, and analysis of information about populations both in the …

Strategic Citations: Beyond The Bluebook, David J.S. Ziff

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Lawyers love thinking about writing. We love it so much that this issue of the Litigation and Trial Practice-Staff Council Committee Newsletter is devoted to writing tips. And for good reason. Words are our business, so we want to ensure that we’re using them as effectively as possible.

Often, however, when lawyers discuss writing, we ignore an important part of what we write. Sprinkled throughout our carefully crafted prose, legal writing includes other, uglier sentences—sentences with their own grammar of sorts, those little clumps of italicized case names, the reporter numbers and abbreviations, often with multiple parentheticals at the end. …

Grabbing The Bull By The Horns: Jurisprudential, Ethical, And Other Lessons For Lawyers And Law Students In The Immigration Labyrinth And Beyond, Mark L. Jones

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No abstract provided.

How Law Schools Can Fight For Fearless Speech, Mary Anne Franks

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No abstract provided.

James And Peirce On The Importance Of Individuals: The Differences That Make A Difference, Susan Haack

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No abstract provided.

The Afterlife Of Confederate Monuments, Jessica Owley, Jess Phelps

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As communities increasingly remove Confederate monuments from public spaces, they must decide what to do with these troubled statues. Given the recent wave of monument removal, we consider how property law and other restrictions impact community decisions on the disposition of monuments removed from public spaces on two levels by location and future owner. In considering the fate of removed monuments, we profile potential destinations including museums, battlefields, cemeteries, and even storage. Alongside these examples, we discuss how laws constrain (or fail to constrain) the options for new owners and the restrictions on where monuments can be relocated. Even where …

Mandating Repair Scores, Aaron Perzanowski

Articles

Restrictions on the repair of consumer goods have generated no shortage of policy proposals. This Article considers the empirical and legal case for one particular intervention—requiring firms to calculate and disclose their products’ scores on a uniform reparability index. These repair scores would provide consumers with salient information at or before the point of sale, enabling them to compare products on the basis of the ease and cost of repair. There is considerable empirical research, including assessments of France’s implementation of a similar requirement in recent years, suggesting that repair scores would both inform and empower consumers. Despite likely First …

Harmonizing Music Theory And Music Law, Peter Nicolas

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Those litigating and adjudicating music copyright disputes find themselves at the intersection of two complex fields: U.S. copyright law and music theory. While the attorneys and judges typically have at least some experience with the former, neither they nor the jurors typically have formal training in or experience with the latter. As a result, legal opinions purporting to incorporate musical concepts sometimes fail to do so accurately, resulting in decisions that are inconsistent with copyright law and policy.

This Article seeks to harmonize U.S. copyright law with relevant principles of music theory. It begins with an accessible primer on basic …

Citation, Slavery, And The Law As Choice: Thoughts On Bluebook Rule 10.7.1(D), David J.S. Ziff

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Today, more than 150 years after the end of the Civil War, lawyers and judges continue to rely on antebellum decisions that tacitly or expressly approve of slavery. This reliance often occurs without any acknowledgement of the precedent’s immoral and legally dubious provenance. Modern use of these so-called “slave cases” was the subject of Professor Justin Simard’s 2020 article, Citing Slavery. In response to Professor Simard’s article, the latest edition of The Bluebook includes Rule 10.7.1(d), which requires authors to indicate parenthetically when a decision involves an enslaved person as a party or the property at issue. Unfortunately, Rule 10.7.1(d) …

Unbelievable: How Narrative Can Help Vulnerable Narrators Overcome Perceived Unreliability In The Legal System, Cathren Page

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This article examines how advocates can champion vulnerable narrators’ truths. First, advocates must prime the audience by educating the audience about the ways the vulnerability manifests; this process helps to allay credibility questions. Second, advocates must reframe seemingly untrustworthy behavior by showing how the behavior is consistent with someone in the vulnerable narrator’s situation. Third, advocates must create what fiction writers call verisimilitude—a sense of reality—by including concrete details that logically fit together in the legal narrative. Finally, advocates must label the tactics commonly used to discredit vulnerable narrators so that the audience can see those tactics for what they …

Modalities Of Social Change Lawyering, Christine N. Cimini, Doug Smith

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The last decade has seen the rise of new kinds of grassroots social movements. Movements including Occupy Wall Street, Black Lives Matter, Sunrise, and #MeToo pushed back against long-standing political, economic, and social crises, including income inequality, racial inequality, police violence, climate change, and the widespread culture of sexual abuse and harassment. As these social change efforts evolve, a growing body of scholarship has begun to theorize the role of lawyers within these new social movements and to identify lawyering characteristics that contribute to sustaining social movements over time. This Article surveys this body of literature and proposes a typology …

Fables Of Scarcity In Ip, Zahr K. Said

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In this chapter, I use methods drawn from literary analysis to bear on artificial scarcity and explore how literary and legal storytelling engages in scarcity mongering. I find three particular narrative strategies calculated to compel a conclusion in favor of propertization: the spectacle of need, the diversionary tactic, and the rallying cry. First, I unpack the spectacle of need and its diversionary aspects through several literary accounts of scarcity and starvation. I juxtapose Franz Kafka's “A Hunger Artist,” a story explicitly centered on a wasting body, with J.M. Coetzee's The Life and Times of Michael K. Second, to explore how …

From The Editors In Chief, Kathleen Claussen, Sergio Puig, Michael Waibel

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No abstract provided.

Supporting Compliance Of Occupational Safety And Health Requirements - European Labour Inspection Systems Of Sanctions And Standardised Measures, Victor Hrymak

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European legislation for occupational safety and health (OSH) is based on the prevention of accidents and ill health. Apart from European directives, all Member States have national laws and strategies and expect enterprises to implement this preventative ethos, and thereby ensure adequate performance in OSH. Labour Inspectorates monitor and if necessary enforce these laws by deploying individual Labour Inspectors to chosen enterprises. If workplace safety and health conditions are found to be substandard, Labour Inspectors are expected to improve the situation using persuasion and, if necessary, their authority to compel enterprises through specific sanction powers. Bruhn (2009) describes this interaction …

Effective Communication With Deaf, Hard Of Hearing, Blind, And Low Vision Incarcerated People, Civil Rights Litigation, Tessa Bialek, Margo Schlanger

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Tens of thousands of people incarcerated in jails and prisons throughout the United States have one or more communication disabilities, a term that describes persons who are deaf, hard of hearing, blind, low vision, deafblind, speech disabled, or otherwise disabled in ways that affect communication. Incarceration is not easy for anyone, but the isolation and inflexibility of incarceration can be especially challenging, dangerous, and further disabling for persons with disabilities. Correctional entities must confront these challenges; the number of incarcerated persons with communication disabilities—already overrepresented in jails and prisons—continues to grow as a proportion. Federal antidiscrimination law obligates jails and …

Due Process And Equal Protection In Michigan Anishinaabe Courts, Matthew Fletcher

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In 1968, largely because the United States Constitution does not apply to tribal government activity, Congress enacted the Indian Civil Rights Act–a federal law that requires tribal governments to guarantee due process and equal protection to persons under tribal jurisdiction. In 1978, the Supreme Court held that persons seeking to enforce those federal rights may do so in tribal forums only; federal and state courts are unavailable. Moreover, the Court held that tribes may choose to interpret the meanings of “due process” and “equal protection” in line with tribal laws, including customary laws. Since the advent of the self-determination era …

Mitigating Citation Errors In The Interlibrary Loan System, Scott Dewey, David Zopfi-Jordan

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Journal articles from most academic disciplines have long shown high rates of citation errors. American law reviews, with their careful cite-checking, are a rare exception to the overall rule. Incorrect citations are especially costly and problematic for interlibrary loan librarians. This article offers practical suggestions to address the problem.

Antidiscrimination Efforts And The Repressive Weight Of Culture, Matthew Bodie

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No abstract provided.

Introduction To The Symposium On Labor Market Power, Eric A. Posner

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No abstract provided.

Against Political Theory In Constitutional Interpretation, Christopher S. Havasy, Joshua C. Macey, Brian Richardson

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Judges and academics have long relied on the work of a small number of Enlightenment political theorists—particularly Locke, Montesquieu, and Blackstone—to discern meaning from vague and ambiguous constitutional provisions. This Essay cautions that Enlightenment political theory should rarely, if ever, be cited as an authoritative source of constitutional meaning. There are three principal problems with constitutional interpretation based on eighteenth-century political theory. First, Enlightenment thinkers developed distinct and incompatible theories about how to structure a republican form of government. That makes it difficult to decide which among the conflicting theories should possess constitutional significance. Second, the Framers did not write …

Horizontal Collusion And Parallel Wage Setting In Labor Markets, Jonathan S. Masur, Eric A. Posner

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Horizontal collusion among employers to suppress wages has received almost no attention in the academic literature, in contrast with its more familiar cousin, product-market collusion. The similar economic analysis of labor and product markets might suggest that antitrust should regulate labor and product markets in the same way. But product markets and labor markets do not operate identically: people behave differently as employees and as consumers. Unlike consumers who can switch products relatively easily, employees face significant frictions in changing jobs. Other labor market frictions are created by the pay equity norm and downward nominal wage rigidity. These and related …

A Symposium To Mark The Publication, By New York University Press, Of Ian O’Donnell’S Prison Life: Pain, Resistance, And Purpose, Rosemary Gido, Derek S. Jeffreys, Cormac Behan, Kimmett Edgar, Bethany E. Schmidt, Gorazd Mesko, Mary K. Stohr, Ashley T. Rubin

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Recognizing the major scholarly contributions to criminology by the noted Irish criminologist, Ian O’Donnell, The Prison Journal invited seven contemporary corrections and punishment scholars to offer insights into O’Donnell’s new book, Prison Life: Pain, Resistance, and Purpose. Offering contextually rich descriptions of prisoner life, the text features four case study prisons—H Blocks, Northern Ireland; Eastham Unit, Texas; Isir Bet, Ethiopia; and ADX Florence, Colorado, in pivotal time periods and through an individual's custodial career in each institution. The symposium discussants focus on O’Donnell's conceptual framework—the degree of prison integration, system and staff regulation, and legitimacy—and how these reflect the key …

What’S Law Got To Do With It? How The Degree Of Legalization Affects The Durability Of Post-Conflict Autonomy Agreements, Felix Schulte, Gene Carolan

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Research has identified several factors that impact the sustainability of post-conflict territorial autonomy arrangements (TAA), including previous levels of violence, economic development in a given territory, or the strategic importance thereof. We argue that a hitherto neglected variable lies in the legal form of the autonomy agreement – that is, the degree to which it has been ‘legalized’ by the language and processes prescribed in the agreement. Based on a qualitative evaluation, we assess the legalization degree of 236 TAA signed between 1990 and 2019. Survival analyses and Cox regression models show that a higher degree of legalization has a …

Ai Tools For Lawyers: A Practical Guide, Daniel Schwarcz

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This Article provides practical and specific guidance on how to effectively use AI large language models (LLMs), like GPT-4, Bing Chat, and Bard, in legal research and writing. Focusing on GPT-4—the most advanced LLM that is widely available at the time of this writing—it emphasizes that lawyers can use traditional legal skills to refine and verify LLM legal analysis. In the process, lawyers and law students can effectively turn freely available LLMs into highly productive personal legal assistants.

Book Review: The “Common-Good” Manifesto, William Baude, Stephen E. Sachs

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In Common Good Constitutionalism, Professor Adrian Vermeule expounds a constitutional vision that might “direct persons, associations, and society generally toward the common good.” The book must be taken seriously as an intellectual challenge, particularly to leading theories of originalism.

That said, the challenge fails. The book fails to support its hostility toward originalism, to motivate its surprising claims about outcomes, or even to offer an account of constitutionalism at all. Its chief objections to originalism are unpersuasive and already answered in the literature it cites. The book does highlight important points of history and jurisprudence, of which originalists and others …

State International Agreements: The United States, Canada, And Constitutional Evolution, Curtis A. Bradley

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The text of the US Constitution appears to require that individual states, to the extent that they are ever allowed to conclude agreements with foreign governments, must obtain congressional approval. In practice, however, states conclude many agreements with foreign governments, including with Canada and its provinces, and they almost never seek congressional approval. This practice is an illustration of both the importance of federalism in US foreign relations and the significant role played by historical practice in informing US constitutional interpretation. The phenomenon of state international agreements assumed new prominence in 2019 when the Trump administration sued to challenge a …

Spacs, Pipes, And Common Investors, Frank Fagan, Saul Levmore

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Special Purpose Acquisition Companies, or SPACs, have come to play a large role in bringing together small and large investors in the acquisition and expansion of private companies. A pessimistic version of this relatively recent alternative to conventional initial public offerings (IPOs), and other methods of investing in companies ready to expand, is that clever sharks take advantage of overly optimistic and ill-informed small investors. This Article offers a very different view. It shows that common investors need someone to locate good investment opportunities, and then they often benefit if another well-informed party can credibly vouch for the entity that …

The Corporate Governance Of Public Utilities, Aneil Kovvali, Joshua A. Macey

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Rate-regulated public utilities own and operate one-third of U.S generators and nearly all the transmission and distribution system. These firms receive special regulatory treatment because they are protected from competition and subject to rate caps. In the past decade, they also have been at the center of high- profile corporate scandals. They have bribed regulators to secure subsidies for coal-fired generators and nuclear reactors. They have caused wildfires and coal- ash spills that resulted in hundreds of deaths and billions of dollars in liability. Their failure to maintain reliable electric service has contributed to catastrophic blackouts. Perhaps most consequentially, they …