Law Commons^™

The Network Economic Effects Of Whiteness, Brant T. Lee

Brant T. Lee

In this Essay I demonstrate that a network economic analysis of race provides an important and intuitive explanation of racial inequality. In short, Whiteness is Microsoft's Windows operating system, or the QWERTY keyboard, or the standard (non-metric) measurement system, and it is difficult to dislodge for many of the same reasons. Network effects explain how (1) the establishment of a dominant market standard can be contingent on historical context, and it is not necessarily derived from superior intrinsic merit, and (2) a dominant standard exhibits strong self-reinforcing characteristics that can maintain the dominance of the standard in perpetuity, even in …

The Prophylactic Remedy: Normative Principles And Definitional Parameters Of Broad Injunctive Relief, Tracy A. Thomas

Akron Law Faculty Publications

This article is the first complete normative and descriptive treatment of the modern civil rights remedy -- the prophylactic injunction. The prophylactic remedy is a public law injunction that uniquely restricts legal conduct that is affiliated with, but distinct from, the illegal wrong. The United States Supreme Court has utilized prophylactic remedies for over forty years, and has used the prophylactic paradigm to shape its jurisprudence on Section 5 of the Fourteenth Amendment. Prophylaxis, however, remains an ambiguous concept in the eyes of most scholars and lawyers. This article attempts to fill the academic void by exploring the doctrinal and …

The Prophylactic Remedy: Normative Principles And Definitional Parameters Of Broad Injunctive Relief, Tracy A. Thomas

Tracy A. Thomas

This article is the first complete normative and descriptive treatment of the modern civil rights remedy -- the prophylactic injunction. The prophylactic remedy is a public law injunction that uniquely restricts legal conduct that is affiliated with, but distinct from, the illegal wrong. The United States Supreme Court has utilized prophylactic remedies for over forty years, and has used the prophylactic paradigm to shape its jurisprudence on Section 5 of the Fourteenth Amendment. Prophylaxis, however, remains an ambiguous concept in the eyes of most scholars and lawyers. This article attempts to fill the academic void by exploring the doctrinal and …

The Tax Treatment Of International Philanthropy And Public Policy, Robert Paine

Akron Tax Journal

This paper concerns the tax treatment of charitable contributions made to foreign organizations. Specifically, it discusses the current tax structure that governs contributions made by United States taxpayers to charitable organizations located outside the U.S. and its possessions.

The New Dividend Tax Cut; Bush's Prescription For Rescuing The Economy, Beckett G. Cantley

Akron Tax Journal

The purpose of this paper is to cover the Act as passed by Congress and signed by President Bush, discussing each of the major provisions contained within the Jobs and Growth Tax Relief Reconciliation Act and examining the differing views as to whether it will succeed.

Rethinking The Jurisdiction Of Bankruptcy Courts Over Post-Confirmation Federal Tax Liabilities: Towards A New Jurisprudence Of 11 U.S.C. 505, Shu-Yi Oei

Akron Tax Journal

This paper argues that the current approach that bankruptcy courts have taken in circumscribing the reach of § 505 over liabilities that may arise after the plan has been confirmed and discharged is unsatisfactory. Instead of turning to jurisdictional and constitutional sources external to § 505, the reach of § 505(a) should be determined through imposing a bright line limitation internal to § 505 itself. It is the contention of this paper that based on the location of § 505 in the Bankruptcy Code, the overall structure of the Code, and the legislative history of the provision, the authority contained …

Rush Prudential Hmo, Inc. V. Moran: 21 Or Bust! Does Erisa Preemption Give Hmos The Power To Gamble With Our Health?, Stephanie Reinhart

Akron Tax Journal

Section II, Part A of this Note will discuss the history of ERISA law, including a look at what Congress intended to achieve in enacting such a broadly preemptive doctrine. Parts B and C will explain the complicated and highly technical provisions that make up ERISA as it pertains to health care benefits law. Finally, Part D will navigate several key cases leading up to the Rush decision and explain how each case contributed to the Court's decision. Following the background of ERISA law, Section III will discuss the facts of the Rush case, charting the journey that brought this …

Is Transnational Litigation Different?, Samuel P. Baumgartner

Akron Law Faculty Publications

During the last fifteen years, there has been a growing interest in litigation transcending national borders. Yet, both in the United States and in Europe, where this interest is much older, a comprehensive intellectual framework to deal with this type of litigation is hard to find. In fact, courts and procedural law reformers still approach transnational cases in the same fashion as purely domestic ones, adjusting the concepts of domestic law where they believe it necessary. This has created significant problems both for litigants seeking justice in transnational cases and for lawmakers fashioning policy specifically for the transnational setting.

In …

Gerry Spence's The Smoking Gun As A Teaching Tool, Dana K. Cole

Akron Law Faculty Publications

The Smoking Gun, is the true story of a woman and her teenage son charged in what appeared to be a hopeless murder case. At Mr. Spence’s request, Professor Cole wrote a companion manual for use by law professors interested in using Spence’s book in teaching criminal law, criminal procedure, clinical practicum, ethics, evidence or trial advocacy. The companion manual is a chapter-by-chapter synopsis of the book that highlights teachable topics and analyzes some of the skills and techniques described in the book.

Codify -- Not Modify: Creditor Remedies And The Ohio Uniform Trust Code, Alan Newman, Richard E. Davis

Akron Law Faculty Publications

In a number of states that have considered the Uniform Trust Code (“UTC”), Article 5, "Creditor’s Claims; Spendthrift And Discretionary Trusts," has become a flash point of controversy. The prefatory note to the UTC states that much of the UTC is a codification of the common law of trusts, but that it also introduces a number of innovative provisions. UTC critics, on the one hand, claim that more than a hundred years of common law have been tossed aside, giving creditors greatly expanded abilities to reach through once impenetrable barriers that previously protected trust beneficiaries, while supporters, on the other …

Protecting The Interests Of Older Clients In Multi-Generation Representations, Carolyn L. Dessin

Akron Law Faculty Publications

Estate planning is a field in which attorneys often represent members of the same family of different generations. This frequently leads to situations in which the family members have conflicting, or at least potentially conflicting, financial interests. Unfortunately, attorneys sometimes do not recognize the difficulties that such conflicting interests may cause until a full-blown fight develops between members of the family. At that point, the attorney may find himself open to a disciplinary complaint or a malpractice action, or, at the very least, a group of unhappy former clients.

Special concerns arise when one or more of the family members …

Jurisprudential Revolution Unlocking Human Potential In Lawrence And Grutter, Wilson R. Huhn

Akron Law Faculty Publications

The decisions of the Supreme Court in Lawrence v. Texas and Grutter v. Bollinger, stripped to their bare holdings, have little immediate effect on existing law. After Grutter, colleges and graduate schools will continue to take race into account in admitting students to enroll a diverse student body, just as they have done for the past quarter century in conformity with Justice Lewis Powell's opinion in Regents of the University of California v. Bakke. After Lawrence, laws against gay sex may no longer be enforced, but only a handful of states still had these laws on the books at the …

Assessing The Constitutionality Of Laws That Are Both Content Based And Content Neutral, Wilson R. Huhn

Akron Law Faculty Publications

Such a multi-faceted analysis cannot be conflated into two dimensions. Whatever the allure of absolute doctrines, it is just too simple to declare expression "protected" or "unprotected" or to proclaim a regulation "content-based" or "content-neutral." John Paul Stevens (1992)

American legal doctrine evolved from a formalistic categorical approach that dominated legal thinking during the nineteenth century to a realistic balancing approach that developed over the course of the twentieth century. A similar process is now occurring in the constitutional doctrine governing freedom of expression-a process that may culminate in the adoption of what United States Supreme Court Justice John Paul …

Scienter, Causation, And Harm: The Right-Hand Side Of The Constitutional Calculus, Wilson R. Huhn

Akron Law Faculty Publications

But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or moral.

Laws that infringe on freedom of expression, like all prohibitory laws, are enacted to prevent harm from occurring. The Supreme Court has refused to confer absolute protection upon freedom of expression, a position that would render all laws restricting expression unconstitutional. Instead, to determine the constitutionality of laws restricting expression, the Court has …

Making A List And Checking It Twice: Must Tax Attorneys Divulge Who’S Naughty And Nice?, Richard L. Lavoie

Akron Law Faculty Publications

No abstract provided.

Subverting The Rule Of Law: The Judiciary’S Role In Fostering Unethical Behavior, Richard L. Lavoie

Akron Law Faculty Publications

No abstract provided.

The Lawyer Doth Protest Too Much, Methinks: Reconsidering The Contemporaneous Objection Requirement In Depositions, E. Stewart Moritz

Akron Law Faculty Publications

The time has come to eliminate the contemporaneous objection requirement for depositions.

From the original 1938 framing of the Federal Rules of Civil Procedure (Rules) to the present, no one has recognized that the theory behind the contemporaneous objection rule in depositions, as drawn from pre-Rules equity practice, does not match the function of depositions in our post-Rules system of open discovery. Pre-Rules depositions in the federal courts were exclusively testimony-preservation devices, and never discovery tools. The common law and statutory procedural rules for pre-Rules depositions, including the contemporaneous objection rule, reflected this use . But when the original Federal …

Ohio Uniform Trust Code Takes Shape, Alan Newman

Akron Law Faculty Publications

The Uniform Trust Code (UTC) has been under study in Ohio since shortly after its approval by the National Conference of Commissioners on Uniform State Laws in 2000. See, e.g., Susan S. Locke, et. al., Uniform Trust Code, 11 PLJO 49 (Mar./Apr. 2001); David M. English, The Uniform Trust Code (2000) and Its Application to Ohio, 12 PLJO 1 (Sept./Oct. 2001); and David M. English, The Uniform Trust Code (2000) and its Application to Ohio, 30 Capital University Law Review 1 (2000).

Substantial progress has been made towards the adoption of a modified version of the UTC in Ohio. At …

Direct Shipment Of Wine, The Dormant Commerce Clause And The Twenty-First Amendment: A Call For Legislative Reform, Lloyd C. Anderson

Akron Law Faculty Publications

Many states prohibit out-of-state sellers of wine from shipping their product directly to consumers, but permit in-state wine producers to engage in such direct shipment. Recent lower federal court decisions have cast serious constitutional doubt upon the authority of a state to discriminate in this manner against wine producers and sellers from other states in favor of its own domestic wine industry. This issue appears headed for the Supreme Court of the United States in the near future. The outcome cannot be foreseen with certainty, but it is likely the Court will find this discrimination unconstitutional.

‘Twas not always so. …

Ubi Jus, Ibi Remedium: The Fundamental Right To A Remedy, Tracy A. Thomas

Akron Law Faculty Publications

This essay is part of a symposium comprised of international remedies scholars addressing the topic of equitable relief in the fifty years since Brown v. Board of Education. It may be true as other scholars have argued that since the time of Brown, institutional defendants have won at the expense of plaintiffs. Defendants have learned that delay and defiance work. The U.S. Supreme Court has adopted a standard for ordering equitable relief that significantly defers to defendant wrongdoers at the plaintiffs' expense. Epithets of "activist courts" and "judicial legislation" have colored the existing scholarship and portrayed remedial action as illegitimate …

Codify -- Not Modify: Creditor Remedies And The Ohio Uniform Trust Code, Alan Newman, Richard E. Davis

Alan Newman

In a number of states that have considered the Uniform Trust Code (“UTC”), Article 5, "Creditor’s Claims; Spendthrift And Discretionary Trusts," has become a flash point of controversy. The prefatory note to the UTC states that much of the UTC is a codification of the common law of trusts, but that it also introduces a number of innovative provisions. UTC critics, on the one hand, claim that more than a hundred years of common law have been tossed aside, giving creditors greatly expanded abilities to reach through once impenetrable barriers that previously protected trust beneficiaries, while supporters, on the other …

Making A List And Checking It Twice: Must Tax Attorneys Divulge Who’S Naughty And Nice?, Richard L. Lavoie

Richard L. Lavoie

No abstract provided.

Ohio Uniform Trust Code Takes Shape, Alan Newman

Alan Newman

The Uniform Trust Code (UTC) has been under study in Ohio since shortly after its approval by the National Conference of Commissioners on Uniform State Laws in 2000. See, e.g., Susan S. Locke, et. al., Uniform Trust Code, 11 PLJO 49 (Mar./Apr. 2001); David M. English, The Uniform Trust Code (2000) and Its Application to Ohio, 12 PLJO 1 (Sept./Oct. 2001); and David M. English, The Uniform Trust Code (2000) and its Application to Ohio, 30 Capital University Law Review 1 (2000).

Substantial progress has been made towards the adoption of a modified version of the UTC in Ohio. At …

Direct Shipment Of Wine, The Dormant Commerce Clause And The Twenty-First Amendment: A Call For Legislative Reform, Lloyd C. Anderson

Lloyd C. Anderson

Many states prohibit out-of-state sellers of wine from shipping their product directly to consumers, but permit in-state wine producers to engage in such direct shipment. Recent lower federal court decisions have cast serious constitutional doubt upon the authority of a state to discriminate in this manner against wine producers and sellers from other states in favor of its own domestic wine industry. This issue appears headed for the Supreme Court of the United States in the near future. The outcome cannot be foreseen with certainty, but it is likely the Court will find this discrimination unconstitutional. ‘Twas not always so. …

Ubi Jus, Ibi Remedium: The Fundamental Right To A Remedy, Tracy A. Thomas

Tracy A. Thomas

This essay is part of a symposium comprised of international remedies scholars addressing the topic of equitable relief in the fifty years since Brown v. Board of Education. It may be true as other scholars have argued that since the time of Brown, institutional defendants have won at the expense of plaintiffs. Defendants have learned that delay and defiance work. The U.S. Supreme Court has adopted a standard for ordering equitable relief that significantly defers to defendant wrongdoers at the plaintiffs' expense. Epithets of "activist courts" and "judicial legislation" have colored the existing scholarship and portrayed remedial action as illegitimate …

Protecting The Interests Of Older Clients In Multi-Generation Representations, Carolyn L. Dessin

Carolyn L. Dessin

Estate planning is a field in which attorneys often represent members of the same family of different generations. This frequently leads to situations in which the family members have conflicting, or at least potentially conflicting, financial interests. Unfortunately, attorneys sometimes do not recognize the difficulties that such conflicting interests may cause until a full-blown fight develops between members of the family. At that point, the attorney may find himself open to a disciplinary complaint or a malpractice action, or, at the very least, a group of unhappy former clients.

Special concerns arise when one or more of the family members …

Subverting The Rule Of Law: The Judiciary’S Role In Fostering Unethical Behavior, Richard L. Lavoie

Richard L. Lavoie

No abstract provided.

Educational Opportunities For Taxpayers, George Salimbas

Akron Tax Journal

Part II is a definitional section for the phrases and terms that are repeatedly used throughout this article. Unless otherwise stated, each phrase and term is defined as listed in this part.

Part III contains a detailed examination of the law for each opportunity. Examples are employed to determine the tax utility of each opportunity, and also provide suggestions for improvement. These results are listed in Appendices One through Five and Ten.

Part IV first determines which taxpayers qualify for the various opportunities by looking solely to the income limitations set forth in each opportunity. Next, it employs a control …

The New Tax Shelter Opinion Letter Regulations: Cutting Back On A Client's Ability To Rely On The Advice Of His Counsel, Beckett G. Cantley

Akron Tax Journal

The main question this article will discuss is whether the inability of a client to rely on a client's counsel on such complicated matters as tax shelters is good public policy.

The Internal Revenue Service Collects From An Innocent Spouse In United States V. Craft: Could Business Associates Be Next?, Wade M. Fisher

Akron Tax Journal

Part II of this Note discusses tenancy by the entirety, the history of the federal tax lien statute, and how federal courts have interpreted the federal tax lien statute. Part III discusses the events leading up to the Craft lawsuit, considers the Craft lawsuit itself, and examines the subsequent court decisions. Finally, Part IV analyzes whether entrepreneurs carrying on as unincorporated businesses and closely held corporations have sufficiently similar rights to tenants by the entirety to allow the Craft holding to be applied in the business setting.