Law Commons^™

Introduction To "Books", Margaret A. Leary

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It's well known that graduate William B. Cook's generosity provided the Law School with its trademark Gothic Law Quadrangle. It is less universally known that Cook endowed the Law School with a trust to support faculty research, and had a strong interest in the nature of that research. He chose to call the library building "Legal Research" and to inscribe above the main entrance "Learned and cultured lawyers are safeguards of the republic." Cook often said that the lack of "intellectual leadership 1s the greatest problem which faces America," and he wanted this Law School to provide that missing leadership. …

Evaluating The Sex Discrimination Argument For Lesbian And Gay Rights, Edward Stein

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The sex discrimination argument for lesbian and gay rights analyzes laws that discriminate on the basis of sexual orientation in terms of sex discrimination. For example, sodomy laws that prohibit only same-sex sexual activities are analyzed as discriminating on the basis of sex because they prohibit women from doing something men are permitted to do, that is, have sex with women. This argument has been championed by some scholars and litigators, and it has persuaded some judges. Edward Stein shows that there are sociological, theoretical, moral, and practical problems facing the sex discrimination argument. He suggests that there are better …

The Economic Analysis Of Evidence Law: Common Sense On Stilts, Richard O. Lempert

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There was a time when the empire of Law was not overrun by economists. The economists had their own fiefdoms to be sure-there was the Duchy of Antitrust and the Kingdom of Regulatory Law-but the economists lived in peace within these borders, welcoming many unlike themselves into their midst, only gently proselytizing their students in the first few classes of a term, and swearing fealty to the law. It is true that a few marauders from beyond the borders saw the wealth of the empire and sought to colonize it, but even the most daring, Archbishop Coase and Duke Gary …

Why The Corporate Amt Should Be Retained, Reuven S. Avi-Yonah

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The corporate AMT is under attack. Repeal has been proposed by the White House, endorsed by the ABA/AICPA/TEI tax simplification project, and included in the stimulus bill passed by the House of Representatives. Repeal is supported on two principal grounds: That the corporate AMT increases complexity, and that it is pro-cyclical.

Beyond Exit And Voice: User Participation In The Production Of Local Public Goods, Lee Anne Fennell

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No abstract provided.

Which Means To An End Under The Uniform Mediation Act, Andrea Kupfer Schneider

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No abstract provided.

Reverse Mortgage Information Online, Robin Schard

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Reverse mortgages are a valuable tool that allow seniors to tap their home's equity. However, there are traps for the unwary

Valuation, Allocation, And Distribution Of Retirement Plans At Divorce: Where Are We?, Elizabeth Brandt

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No abstract provided.

Tax Competition And E-Commerce, Reuven S. Avi-Yonah

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In the last four years, there has been increasing concern by developed countries about the potential erosion of the corporate income tax base by "harmful tax competition" (in the European Union since 1997, in the OECD since 1998). However, the data on tax competition available to date present a mixed and somewhat puzzling picture. On the one hand, there is considerable evidence that effective corporate income tax rates in many countries have been declining, and that the worldwide effective tax rates on multinational enterprises (MNEs) have been going down as well. On the other hand, macroeconomic data from developed countries …

A Measure Of Freedom, James W. Nickel

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No abstract provided.

Citizen Participation In Judicial Decision Making: Juries, Lay Judges And Japan, Richard O. Lempert

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In the late 1920s and 1930s Japan had a jury system. It was suspended in 1943 as a wartime measure, but it had fallen into desuetude long before that. Arguably it was like the Spanish jury, which has several times risen during periods of relative political liberalism or populism and been suppressed during periods of militarism and autocracy. That is, it may be more than a coincidence that use of the Japanese jury fell precipitously during the 1930s as militarism took hold of the Japanese nation. Now the reinstatement of the Japanese jury is again being seriously considered. Similarly it …

The Proposed Domestic Reverse Hybrid Entity Regulations: Can The Treasury Department Override Treaties?, Anthony C. Infanti

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This article first describes the proposed regulations issued under section 894 addressing the ability of domestic reverse hybrid entities to claim treaty benefits with respect to payments made to their interest holders (the proposed DRH regulations). After describing the proposed DRH regulations, the article next explores the potential that these regulations have to override existing U.S. treaty obligations. After concluding that the proposed DRH regulations are inconsistent with at least one existing treaty, the article concludes by questioning the power of the Treasury Department to promulgate regulations (such as the proposed DRH regulations) that override treaties.

Note: This is a …

Are Tax "Benefits" For Religious Institutions Constitutionally Dependent On Benefits For Secular Entities?, Edward A. Zelinsky

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The Supreme Court generally conditions tax exemptions, deductions, and exclusions for religious organizations and activities upon the simultaneous extension of such benefits to secular institutions and undertakings. The Court's position flows logically from its acceptance of the premise that tax exemptions, deductions, and exclusions constitute subsidies. However, the "subsidy" label is usually deployed in a conclusory and unconvincing fashion. The First Amendment is best understood as permitting governments to refrain from taxation to accommodate the autonomy of religious actors and activities; hence, tax benefits extended solely to religious institutions should pass constitutional muster as recognition of that autonomy.

Experts, Carl E. Schneider

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George Bernard Shaw famously said that all professions are conspiracies against the laity. Less famously, less elegantly, but at least as accurately, Andrew Abbott argued that professions are conspiracies against each other. Professions compete for authority to do work and for authority over work. The umpire in these skirmishes and sieges is the government, for the state holds the gift of monopoly and the power to regulate it. In Abbott's terms, "bioethics" is contesting medicine's power to influence the way doctors treat patients. If it follows the classic pattern, bioethics will solicit work and authority by recruiting government's power. A …

In The United States Court Of Appeals For The Fourteenth Circuit, Richard A. Posner

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No abstract provided.

The Cash Balance Controversy Revisited: Age Discrimination And Fidelity To Statutory Text, Edward A. Zelinsky

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No abstract provided.

Cross-Testing, Nondiscrimination, And New Comparability: A Rejoinder To Mr. Orszag And Professor Stein, Edward A. Zelinsky

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In their response to my article in this symposium issue of the Buffalo Law Review, Peter Orszag and Norman Stein advance their analysis of cross-testing, new comparability and the nondiscrimination norm. I write this brief rejoinder both to clarify the areas of our disagreement and to complete our dialogue.

In Defense Of Making Government Pay: The Deterrent Effect Of Constitutional Tort Remedies, Myriam E. Gilles

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Legal economists are concerned with setting optimal deterrence levels. Armed with information concerning the public and private costs and benefits of a particular harmful activity, the legal economist seeks to set a “price” for the activity which, to some socially optimal extent, minimizes external costs while retaining external benefits. If the economist's information is perfect, he can predict precisely how an economically rational actor will respond to a particular price and achieve optimal deterrence of activities whose costs outweigh their benefits.

Is Cross-Testing A Mistake: Cash Balance Plans, New Comparability Formulas, And The Incoherence Of The Nondiscrimination Norm, Edward A. Zelinsky

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The increasing tendency of large employers to convert their traditional defined benefit pension plans to the cash balance format has engendered substantial controversy, both within the qualified plan community and among the general public. The rise of "new comparability" plans has yet to generate the same level of popular or political concern, perhaps because such plans have largely been embraced by smaller employers. However, among pension mavens, new comparability has occasioned strong supporters and equally firm detractors.

Unfriendly Actions: The Amicus Brief Battle At The Wto, Andrea Kupfer Schneider

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No abstract provided.

On American Legal Education Reform In Japanese Legal Education, Carl E. Schneider

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The one hundredth anniversary of the Kyoto University Faculty of Law is the kind of splendid occasion when, as Justice Oliver Wendell Holmes remarked, a distinguished institution "becomes conscious of itself and its meaning." I can hardly express my pleasure at being invited to join in your celebration; but I must express my fear that I can add little to it. When Dean Tanaka kindly invited me, I should probably have declined, for I, a foreigner, can hardly know enough about an institution so central to the life of its country and its profession to speak of it and its …

The Law Of White Spaces: Race, Culture, And Legal Education, Peter Goodrich, Linda G. Mills

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The scene, drawn from memory, is a first-year law school classroom. It is the early 1980s and the class is on civil procedure. The teacher is a white woman. She is nervous, and the class is dominated by students who provide standard right answers to formulaic law school questions. Other points of view, particularly those of a critical or feminist nature, are either passed over quickly or ignored. Questions of color are never mentioned. More than that, the teacher never calls on any African-American students. Students of color are either ignored completely or told, when they have questions, “We are …

Representational Standing: U.S. Ex Rel. Stevens And The Future Of Public Law Litigation, Myriam E. Gilles

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In May 2000, the Supreme Court handed down its decision in Vermont Agency of Natural Resources v. U.S. ex rel. Stevens, a seemingly predictable 11th Amendment case. In upholding the plaintiff's Article III standing to bring that case, however, the Court suggested a theory of "representational standing" that holds the potential to radically transform the entire body of law governing the ability of private citizens to seek, through the federal courts, the vindication of broadly-held public interests.

Over the past 30 years, the Court's increasingly restrictive standing jurisprudence has effectively precluded private citizens from playing a meaningful role in public …

Reading The Clean Air Act After Brown & Williamson, Michael Herz

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No abstract provided.

Comment On Lempert On Posner, Richard A. Posner

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No abstract provided.

Universal Jurisdiction And U.S. Law, Curtis A. Bradley

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The conventional wisdom among international law scholars is that customary international law-that is, the law that results from the customary practices and beliefs of nations-places limitations on the authority of nations to apply their laws extraterritorially.¹ Unless a nation's extraterritorial law falls within one of five categories ² -territoriality, nationality, protective principle, passive personality, or universality-it is said, the nation violates international law rules governing "prescriptive jurisdiction."³ All but one of these categories require a nexus between the regulating nation and the conduct, offender, or victim. Under the territorial category, a nation may regulate conduct within its territory …

Further Thoughts On Customary International Law, Eric A. Posner, Jack L. Goldsmith

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No abstract provided.

Private Commercial Law In The Cotton Industry: Creating Cooperation Through Rules, Norms, And Institutions, Lisa Bernstein

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No abstract provided.

Rights Of Sexual Minorities In Ireland And Europe: Rhetoric Versus Reality, Bruce Carolan

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Superficially, Irish and European Community law proclaim the rights of sexual minorities - particularly in web sites and printed information designed for public consumption. The reality is different. This article identifies a gap between the public pronouncements on the rights of sexual minorities under Irish and EC law. It employs a hypothetical fact situation to suggest that existing legal protections are anemic, and argues that the potential failure of affected groups to identify these deficiencies (due to contradictory claims in public information campaigns) could endanger efforts to effect progressive change.

Peonage And Contractual Liberty, Aziz Huq

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No abstract provided.