Law Commons^™

Stategraft, Bernadette Atuahene, Timothy Hodge

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Although sometimes difficult to detect, governmental power abuses can have detrimental impacts. Property tax assessments provide an effective lens to examine this phenomenon because, given the complexity of calculating property tax assessments, it is difficult for citizens to know when local government has exceeded its legitimate taxing authority and crossed into the realm of illegal extraction. Michigan is an ideal case study because it protects property owners by making assessment-related power abuses more visible through a unique state constitutional provision: property tax assessments cannot exceed 50 percent of a property’s market value. Abuses have persisted nevertheless. Between 2011 and 2015, …

Beyond Greed Is Good: Pop Culture In The Business Law Classroom, Felice Batlan, Joshua Bass

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No abstract provided.

Federalism Of Personal Finance: State & Federal Retirement Plans, William Birdthistle

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In this Article, I consider possible approaches that attempt to improve the plans through which millions of Americans tend to their life savings. I begin by considering the inadequacies of our current system of defined contribution accounts and then address two possible alternatives: the first being a federal account universally available to Americans based largely on the model of the Thrift Savings Plan; the second being a system of statebased retirement accounts like those that have already been developed in a handful of states. Though I conclude that a single, federal plan would be superior, either alternative approach would be …

Tactful Inattention: Erving Goffman, Privacy In The Digital Age, And The Virtue Of Averting One's Eyes, Elizabeth De Armond

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No abstract provided.

Scaffolding On Steroids: Meeting Your Students Where They Are Is Harder Than Ever ... And Easier Than You Think, Kari L. Aamot Johnson

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No abstract provided.

When Is Hate Speech Wrongful? A Comment On Alexander Brown’S Hate Speech As Degradation And Humiliation, Steven Heyman

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No abstract provided.

The Motive Power In Public Sector Collective Bargaining, Martin Malin

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In the private sector, George Taylor referred to the strike as providing the “motive power” in collective bargaining. A major reason behind the enactment of public employee collective bargaining laws is to reduce the interruption of public services from job actions. This was the case with the enactment of New York’s Taylor Law.This paper, written for a conference commemorating the 50th anniversary of the Taylor Law and published in a special issue of the Hofstra Labor and Employment Law Journal focused on the Taylor Law, examines what, in the absence of a right to strike, provides the motive power for …

Allocating Liability Among Multiple Responsible Causes: Principles, Rhetoric And Power - Chapter 2, Richard Wright

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No abstract provided.

Investors' Paradox, Anita Krug

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For the first time in an era, new investment products for smaller ("retail ") investors are emerging. These products are mutual funds that engage in the types of trading and investment activities that have long been the province of sophisticated investors. Accordingly, the new funds (called "alternative funds") promise to reduce the gulf between retail investors and their sophisticated counterparts, in terms of portfolio diversification and investment results.This Article describes the complex mix of factors that spawned alternative funds and critically evaluates the funds' potential, the first scholarly work to do so. It additionally unearths the paradox that impedes the …

Amending Patent Claims, Gregory Reilly

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Patent claims traditionally have been freely amendable to overcome a finding of unpatentability. For that reason, the Patent Office’s restrictive approach to amendments in new post-issuance review proceedings created by the America Invents Act provoked strident criticism; generated administrative, statutory, and constitutional challenges; and fractured the Federal Circuit. This Article supplies the comprehensive evaluation of the costs and benefits of patent claimamendments, both in examination and post-issuance, surprisingly missing in the literature.The results are mixed. Amendments in initial examination are less clearly warranted than commonly thought, with the costs – primarily problematic drafting incentives – often overlooked and the benefits …

How Much Should We Spend To Protect Privacy?: Data Breaches And The Need For Information We Do Not Have, Richard Warner, Robert Sloan

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A cost/benefit approach to privacy confronts two tradeoff issues. One is making appropriate tradeoffs between privacy and many goals served by the collection, distribution, and use of information. The other is making tradeoffs between investments in preventing unauthorized access to information and the variety of other goals that also make money, time, and effort demands. Much has been written about the first tradeoff. We focus on the second. The issue is critical. Data breaches occur at the rate of over three a day, and the aggregate social cost is extremely high. The puzzle is that security experts have long explained …

Flipping The Classroom To Teach Workplace Adr In An Intensive Environment, Martin H. Malin, Deborah Ginsberg

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No abstract provided.

A Twenty-First-Century Olympic And Amateur Sports Act, Dionne L. Koller

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Recent scandals involving national governing bodies for sport and allegations of athlete abuse have captured media attention. The most recent, focusing on the actions of USA Gymnastics, prompted Congress to propose legislation to require better protections for Olympic Movement athletes. Signed into law on February 14, 2018, the Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017 designates the United States Center for SafeSport (SafeSport) as the independent organization charged with exercising jurisdiction over the United States Olympic Committee (USOC) and sport national governing bodies to safeguard amateur athletes against all forms of abuse. Congress’s instincts …

Electricity Markets And The Social Project Of Decarbonization, Shelley Welton

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Decarbonization is the process of converting our economy from one that runs predominantly on energy derived from fossil fuels to one that runs almost exclusively on clean, carbon-free energy. If pursued on the scale that experts believe necessary to prevent dangerous climate change, the infrastructure changes required to decarbonize the United States will have significant social and cultural implications. States aggressively pursuing decarbonization have adopted policies reflecting their understanding that decarbonization is a social project implicating numerous value choices. Various state decarbonization policies combine the aim of decarbonization with job promotion, economic development, income redistribution, urban revitalization, open-space preservation, and …

Exclusionary Megacities, Wendell Pritchett, Shitong Qiao

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Human beings should live in places where they are most productive, and megacities, where information, innovation and opportunities congregate, would be the optimal choice. Yet megacities in both China and the U.S. are excluding people by limiting housing supply. Why, despite their many differences, is the same type of exclusion happening in both Chinese and U.S. megacities? Urban law and policy scholars argue that Not-In-My-Backyard (NIMBY) homeowners are taking over megacities in the U.S. and hindering housing development therein. They pin their hopes on an efficient growth machine that makes sure “above all, nothing gets in the way of building.” …

The Shifting Tides Of Merger Litigation, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon, Randall S. Thomas

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In 2015, Delaware made several important changes to its laws concerning merger litigation. These changes, which were made in response to a perception that levels of merger litigation were too high and that a substantial proportion of merger cases were not providing value, raised the bar, making it more difficult for plaintiffs to win a lawsuit challenging a merger and more difficult for plaintiffs’ counsel to collect a fee award.

We study what has happened in the courts in response to these changes. We find that the initial effect of the changes has been to decrease the volume of merger …

Abandoning Realization And The Transition Tax: Toward A Comprehensive Tax Base, Henry Ordower

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The Tax Cuts and Jobs Act of 2017 imposed a tax, the “transition tax,” on as much as 31 years of undistributed, accumulated corporate income. This article focus on that transition tax as it evaluates thefunction and constitutionality of the tax and considers whether the transition tax might serve as a model for addressing the broader problem of deferred income in the United States. The article views the transition taxas joining the expatriation tax and other mark to market inclusion provisions in abandoning any pretext that there is continued vitality in the realization principle as something more compelling than any …

A Tale Of Two Standards: Why Wyoming Courts Should Apply The Actual Substantial Evidence Standard When Reviewing Workers’ Compensation Cases, Michael C. Duff

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In Wyoming, as in almost all states, facts in contested workers’ compensation cases are developed within an administrative agency. When agency factual findings are challenged in court, the level of judicial deference applied to the agency is important and may be outcome determinative. Wyoming courts claim to apply the “substantial evidence” standard of review, often expressed as evidence that a “reasonable mind could accept” as supporting an agency determination. The Wyoming Supreme Court, however, also sometimes upholds workers’ compensation agency decisions that are deemed “not contrary to the overwhelming weight of the evidence.” It is unclear whether this latter formulation …

Revisiting Innovative Technologies To Determine Substantial Similarity In Musical Composition Infringement Lawsuits, Yvette Joy Liebesman

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A music video by Sir Mashalot² combines six award-winning popular country-western songs,³ demonstrating the amazing similarity among the tunes. Not mentioned by the mash-up⁴ artist is that none of the songs are infringing on any of the others. While all copied the same chord progressions, none copied any protected copyrightable expression, and thus none of the authors of the melodies are infringing.

It is often difficult to determine if there has been unlawful copying of a song. Currently, a judge or jury relies on music experts who analyze the songs based on a limited number of characteristics …

"Dangerous Instruments": A Case Study In Overcriminalization, Chad Flanders, Desiree Austin-Holliday

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Many states - including Missouri - have provisions that provide greater punishment for some felonies that are committed with, or by the use of, a .. deadly weapon" or "dangerous instrument."1 The definition o f "deadly weapon" tends to be pretty straightforward, usually a list that includes several specific items that just are deadly weapons, such as guns and knives.2 "Dangerous instrument" is deliberately left as a broader, more capacious term - defined not in terms o f a list o f instruments but in terms of those things that could be easily or "readily" used to cause serious physical …

A Critical Examination Of A Third Employment Category For On-Demand Work (In Comparative Perspective), Miriam A. Cherry, Antonio Aloisi

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A number of lawsuits in the United States are challenging the employment classification of workers in the platform economy. Employee status is a crucial gateway in determining entitlement to labor and employment law protections. In response to this uncertainty, some commentators have proposed an “intermediate”, “third,” or “hybrid” category, situated between the categories of “employee” and “independent contractor.”

After investigating the status of platform workers in the United States, the authors provide snapshot summaries of five legal systems that have experimented with implementing a legal tool similar to an intermediate category to cover non-standard workers: Canada, Italy, Spain, Germany, and …

The Federal Rules Of Inmate Appeals, Catherine T. Struve

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The Federal Rules of Appellate Procedure turn fifty in 2018. During the Rules’ half-century of existence, the number of federal appeals by self-represented, incarcerated litigants has grown dramatically. This article surveys ways in which the procedure for inmate appeals has evolved over the past 50 years, and examines the challenges of designing procedures with confined litigants in mind. In the initial decades under the Appellate Rules, the most visible developments concerning the procedure for inmate appeals arose from the interplay between court decisions and the federal rulemaking process. But, as court dockets swelled, the circuits also developed local case management …

The Modigliani-Miller Theorem At 60: The Long-Overlooked Legal Applications Of Finance’S Foundational Theorem, Michael S. Knoll

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2018 marks the 60th anniversary of the publication of Franco Modigliani and Merton Miller’s The Cost of Capital, Corporation Finance, and the Theory of Investment. Widely hailed as the foundation of modern finance, their article, which purports to demonstrate that a firm’s value is independent of its capital structure, is little known by lawyers, including legal academics. That is unfortunate because the Modigliani-Miller capital structure irrelevancy proposition (when inverted) provides a framework that can be extremely useful to legal academics, practicing attorneys and judges.

On The Disparate Treatment Of Business And Personal Salt Payments, Michael S. Knoll

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The Tax Cuts and Jobs Act, H.R. 1, would eliminate the federal income tax deduction for nonbusiness state and local taxes while maintaining the deduction for business state and local taxes. That disparate treatment has generated a storm of negative commentary. In this short essay, I consider whether the federal tax law should allow a deduction for business state and local taxes assuming that there is no deduction for nonbusiness state and local taxes. I argue that investors and businesses, including pass-through businesses, should be allowed to deduct state and local property and sales taxes, but not general income taxes.

The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson

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This excerpt from the recently published Shadow Vigilantes book argues that, while vigilantism, even moral vigilantism, can be dangerous to a society, the real danger is not of hordes of citizens, frustrated by the system’s doctrines of disillusionment, rising up to take the law into their own hands. Frustration can spark a vigilante impulse, but such classic aggressive vigilantism is not the typical response. More common is the expression of disillusionment in less brazen ways by a more surreptitious undermining and distortion of the operation of the criminal justice system.

Shadow vigilantes, as they might be called, can affect the …

Bankruptcy’S Uneasy Shift To A Contract Paradigm, David A. Skeel Jr., George Triantis

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The most dramatic development in twenty-first century bankruptcy practice has been the increasing use of contracts to shape the bankruptcy process. To explain the new contract paradigm—our principal objective in this Article-- we begin by examining the structure of current bankruptcy law. Although the Bankruptcy Code of 1978 has long been viewed as mandatory, its voting and cramdown rules, among others, invite considerable contracting. The emerging paradigm is asymmetric, however. While the Code and bankruptcy practice allow for ex post contracting, ex ante contracts are viewed with suspicion.

We next use contract theory to assess the two modes of contracting. …

The Global Diffusion Of Law: Transnational Crime And The Case Of Human Trafficking, Beth A. Simmons, Paulette Lloyd, Brandon M. Steward

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The past few decades have seen the proliferation of new laws criminalizing certain transnational activities, from money laundering to corruption; from insider trading to trafficking in weapons and drugs. Human trafficking is one example. We argue criminalization of trafficking in persons has diffused in large part because of the way the issue has been framed: primarily as a problem of organized crime rather than predominantly an egregious human rights abuse. Framing human trafficking as an organized crime practice empowers states to confront cross border human movements viewed as potentially threatening. We show that the diffusion of criminalization is explained by …

Making Laws, Breaking Silence: Case Studies From The Field, Rangita De Silva De Alwis

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The Sustainable Development Goals seek to change the history of the 21st century, addressing key challenges such as poverty, inequality, and violence against women and girls. The inalienable rights of gender equality and empowerment of women and girls addressed in Goal 5 are a pre-condition for this. Despite decades of struggle by women’s movements and reformist agendas, much still needs to be done to address de facto and de jure discrimination against women. At a time of enormous change for women, these essays from around the world are a critical analysis of the role of law in regulating and shaping …

Improving Regulatory Analysis At Independent Agencies, Cary Coglianese

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Each year, independent regulatory agencies—such as the Federal Communications Commission, Nuclear Regulatory Commission, and Securities and Exchange Commission—issue highly consequential regulations. When they issue their regulations, however, they do not have to meet the same requirements for analysis that apply to other agencies. Consequently, courts, policymakers, and scholars have voiced serious reservations about a general lack of high-quality prospective analysis of new regulations at independent agencies. These agencies’ track records with retrospective analysis of their existing regulations raise similar concerns. In this article, I approach the quality of regulatory analysis at independent agencies as a policy problem, assessing the current …

Optimizing Regulation For An Optimizing Economy, Cary Coglianese

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Much economic activity in the United States today emanates from technological advances that optimize through contextualization. Innovations as varied as Airbnb and Uber, fintech firms, and precision medicine are transforming major sectors in the economy by customizing goods and services as well as refining matches between available resources and interested buyers. The technological advances that make up the optimizing economy create new challenges for government oversight of the economy. Traditionally, government has overseen economic activity through general regulations that aim to treat all individuals equally; however, in the optimizing economy, business is moving in the direction of greater individualization, not …