Law Commons^™

Consumption Taxation Is Still Superior To Income Taxation, David A. Weisbach, Joseph Bankman

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No abstract provided.

Advocacy Strategies To Fight Eviction In Cases Of Compulsive Hoarding And Cluttering, Tom Cobb, Eric Dunn, Vanessa Torres Hernandez, Jake Moroni Okleberry, Riana Pfefferkorn, Chelsea Spector

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No abstract provided.

Created Facts And The Flawed Ontology Of Copyright Law, Justin Hughes

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It is black letter doctrine that facts are not copyrightable: facts are discovered, not created—so they will always lack the originality needed for copyright protection. As straightforward as this reasoning seems, it is fundamentally flawed. Using the “social facts” theory of philosopher John Searle, this Article explores a variety of “created facts” cases—designation systems, systematic evaluations, and privately written laws—in which original expression from private individuals is adopted by social convention and generates facts in our social reality. In the course of this discussion, the paper places facts in their historical and philosophical context, explores how courts conflate facts with …

The New Massachusetts Health Law: Preemption And Experimentation, Edward A. Zelinsky

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The Employee Retirement Income Security Act of 1974 (ERISA) preempts major features of the new Massachusetts health law. Although regrettable, this conclusion is mandated by ERISA's statutory terminology and the controlling case law. Other states, in fashioning their health care policies, are looking at elements of the new Massachusetts law. Just as ERISA preempts the individual and business contribution mandates of the Massachusetts statute, ERISA will preempt any similar provisions adopted by other states.

Because state experimentation with health care is particularly desirable today, Congress should, at a minimum, amend ERISA to validate the new Massachusetts health law. More comprehensively, …

All In The Family As A Single Shareholder Of An S Corporation, Douglas A. Kahn, Jeffrey H. Kahn, Terrence G. Perris

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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 …

That’S A Fine Chablis You’Re Not Drinking: The Proper Place For Geographical Indications In Trademark Law, Justin Hughes, Lynne Beresford, Annette Kur, Kenneth Plevan, Susan Scafidi

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No abstract provided.

The Cash Nexus, Carl E. Schneider

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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 …

Current Research On Medical Malpractice Liability, Anup Malani

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No abstract provided.

Optimal Tax Compliance And Penalties When The Law Is Uncertain, Kyle D. Logue

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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 …

Probability Thresholds, Jonathan Masur

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Scholars and lower courts have traditionally operated under the belief that cases involving direct tradeoffs between free speech and national security call for the application of straightforward cost-benefit analysis. But the Supreme Court has refused to adhere to this approach, instead deciding difficult liberty-versus-security questions with reference to a "probability threshold"--a doctrinal floor defining how likely a potential threat must be in order to register in the constitutional calculus. This doctrinal innovation has served as a necessary corrective to what would otherwise be the systematic overestimation of speech-based threats driven by the interaction of two factors. First, distinct informational asymmetries …

Dispatches From The Tort Wars, Anthony J. Sebok

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It is difficult to avoid the conclusion that, as a political matter, the modern tort reform movement has been very successful. This essay reviews three books that either rebut the tort reform movement's central theses or analyze the strategies that allowed the movement to prevail. I discuss Tom Baker's The Medical Malpractice Myth, Herbert Kritzer's Risks, Reputations, and Rewards: Contingency Fee Legal Practice in the United States, and William Haltom & Michael McCann's Distorting the Law: Politics, Media, and the Litigation Crisis. Although each book has a very different focus from the other two, I argue that a common theme …

John Milton: Complete Poems And Major Prose, Richard A. Posner

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No abstract provided.

Classic Revisited: Penal Theory In Paradise Lost, Richard A. Posner, Jillisa Brittan

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No abstract provided.

The Internationalization Of Lay Legal Decision-Making: Jury Resurgence And Jury Research, Richard O. Lempert

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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 …

Essay: On The Divergent American Reactions To Terrorism And Climate Change, Cass R. Sunstein

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Two of the most important sources of catastrophic risk are terrorism and climate change. The United States has responded aggressively to the risk of terrorism while doing very little about the risk of climate change. For the United States alone, the cost of the Iraq War is in excess of the anticipated cost of the Kyoto Protocol. The divergence presents a puzzle; it also raises more general questions about both risk perception and the public demand for legislation. The best explanation for the divergence emphasizes bounded rationality. Americans believe that aggressive steps to reduce the risk of terrorism promise to …

On Logic In The Law: Something, But Not All, Susan Haack

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In 1880, when Oliver Wendell Holmes (later to be a Justice of the U.S. Supreme Court) criticized the "logical theology" of law articulated by Christopher Columbus Langdell (the first Dean of Harvard Law School), neither Holmes nor Langdell was aware of the revolution in logic that had begun, the year before, with Frege's Begriffsschrift. But there is an important element of truth in Holmes's insistence that a legal system cannot be adequately understood as a system of "axioms and corollaries"; and this element of truth is not obviated by the more powerful logical techniques that are now available.

A Creditable Vat?, Reuven S. Avi-Yonah

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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 Law And Economics Of Company Stock In 401(K) Plans, Cass R. Sunstein, Shlomo Benartzi, Richard H. Thaler, Stephen P. Utkus

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Some 11 million participants in 401(k) plans invest more than 20 percent of their retirement savings in their employer's stock. Yet investing in the stock of one's employer is risky: single securities are riskier than diversified portfolios, and an employee's human capital typically is positively correlated with the company's performance. In the worst-case scenario, workers can lose their jobs and much of their retirement wealth simultaneously. For workers who expect to work for a company for many years, a dollar of company stock can be valued at less than 50 cents after accounting for risk. However, employees still invest voluntarily …

Preserving A Special Collection - Ten Things You Can Do When You're On Your Own, Stacy Etheredge

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No abstract provided.

Tribute To Bernard Meltzer, Richard A. Epstein

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No abstract provided.

Reforming Redistricting: Why Popular Initiatives To Establish Redistricting Commissions Succeed Or Fail, Nicholas Stephanopoulos

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No abstract provided.

The Common Law Genius Of The Warren Court, David A. Strauss

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The Warren Court's most important decisions-on school segregation, reapportionment, free speech, and criminal procedureare firmly entrenched in the law. But the idea persists, even among those who are sympathetic to the results that the Warren Court reached, that what the Warren Court was doing was somehow not really law: that the Warren Court "made it up," and that the important Warren Court decisions cannot be justified by reference to conventional legal materials. It is true that the Warren Court's most important decisions cannot be easily justified on the basis of the text of the Constitution or the original understandings. But …

''Don't Try This At Home': Posner As Political Economist, Lior Strahilevitz

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No abstract provided.

Is Public Reason Counterproductive?, Eduardo Peñalver

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No abstract provided.

Creating Failures In The Market For Tax Planning, Phillip A. Curry, Claire Hill, Francesco Parisi

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In this paper we consider the role of governments in designing their policy for tax planning strategies. We consider two distinct types of social costs: the cost associated with lost tax revenue, and the cost that arises from taxpayers' search for new methods to reduce their tax burden. Inevitably, reducing one of these costs comes at the expense of increasing the other; the government faces a tradeoff. By recognizing these costs and the tradeoff the government faces, we can better understand current tax policy. Moreover, a wider recognition of the tradeoff described above, and a systematic consideration of how to …

Domestic Agreements, Brian H. Bix

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In this Article I want to explore the treatment of certain domestic agreements in family law and to see what can be learned about law and families. It is a clich6, in discussions of family law and agreements, to point to Sir Henry Maine's famous quotation that society has moved "from Status to Contract."' I will not disappoint expectations here. The Maine quotation is usually offered ironically-and perhaps defiantly-in family law articles, as this is one area where status has stoutly, and largely successfully, resisted being overtaken by contract.

Real Estate Practice In The Twenty-First Century, Ann Burkhart

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The next century will bring profound changes in real estate law and in the ways that it is practiced. This prediction may seem rather unremarkable for any area of law or for almost any other area of human endeavor. But the changes in real estate law will be exceptional because of their relative rapidity and comprehensiveness.

Extraordinary Rendition And The Humanitarian Law Of War And Occupation, David Weissbrodt, Amy Bergquist

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The Geneva Conventions of 1949 were drafted in the wake of the Second World War to protect combatants and civilians during times of war and occupation. Half a century later, nearly every country has ratified the conventions; many provisions are recognized as customary international humanitarian law. Since September 11, 2001, there has been a heated debate over whether these laws of war apply to the conflicts with al Qaeda. Yet little attention has been devoted to the humanitarian law of occupation as it applies to the conflicts in Afghanistan and Iraq. This Article examines the practice of extraordinary rendition - …

Fair Use V. Fair Access, Randal C. Picker

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No abstract provided.

The Credible Executive, Eric A. Posner, Adrian Vermeule

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Legal and constitutional theory has focused chiefly on the risk that voters and legislators will trust an ill-motivated executive. This Article addresses the risk that voters and legislators will fail to trust a well-motivated executive. Absent some credible signal of benign motivations, voters will be unable to distinguish good from bad executives and will thus withhold authority that they would have preferred to grant, making all concerned worse off We suggest several mechanisms with which a well-motivated executive can credibly signal his type, including independent commissions within the executive branch; bipartisanship in appointments to the executive branch, or more broadly …