Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Series

PDF

2000

Articles

Discipline
Institution
Keyword

Articles 1 - 30 of 138

Full-Text Articles in Law

Tax, Trade And Harmful Tax Competition: Reflections On The Fsc Controversy, Reuven S. Avi-Yonah Dec 2000

Tax, Trade And Harmful Tax Competition: Reflections On The Fsc Controversy, Reuven S. Avi-Yonah

Articles

This article contrasts three approaches to dealing with the BEPS problem: adopting a unitary taxation regime, ending deferral, and adopting anti-base-erosion measures. It concludes that while the first approach is the best long-term option, the other two are more promising as immediate candidates for adoption in the context of U.S. tax reform and the OECD BEPS project.


The Best-Laid Plans, Carl E. Schneider Jul 2000

The Best-Laid Plans, Carl E. Schneider

Articles

It is natural to suppose law is like the centurion and can do as it will: "I say to this man, Go, and he goeth; and to another, Come, and he cometh; and to my servant, Do this, and he doeth it." But a thousand years ago, King Canute tried to disillusion his courtiers about his efficacy by commanding the waves to stop beating. And fifty years ago, Harry Truman predicted of Dwight Eisenhower, "He'll sit here, and he'll say, 'Do this! Do that!' And nothing will happen. Poor Ike-it won't be a bit like the Army ...


Innovation And Creativity In The Fine Arts: The Relevance And Irrelevance Of Copyright, Daniel J. Gifford Jan 2000

Innovation And Creativity In The Fine Arts: The Relevance And Irrelevance Of Copyright, Daniel J. Gifford

Articles

How have social institutions, customs, and intellectual property laws affected creative activity in the fine arts? This article examines the many relationships between the fine arts and their social and legal environment. For the purposes of this paper, the fine arts embrace painting, sculpture, and (classical) musical composition. As will be shown below, in the arena of the fine arts, the respective roles of subjective factors - factors internal to the artists themselves - and external influences upon them from the larger society have changed dramatically over the last one hundred years. These changes have expanded the role of the subjective. Consequently ...


The Sounds Of Silence: The Libertarian Ethos Of Erisa Preemption, Stephen F. Befort, Christopher J. Kopka Jan 2000

The Sounds Of Silence: The Libertarian Ethos Of Erisa Preemption, Stephen F. Befort, Christopher J. Kopka

Articles

In the Winter of 1996, the Harvard Journal on Legislation published an article entitled in part, The Last Article About the Language of ERISA Preemption?' Absent the question mark, one might have thought it a bold (and hopefully accurate) statement. Yet, as the question mark suggests, no scholar has been able to provide the definitive answer regarding the scope of ERISA preemption.


Unlocking The Mysteries Of Holy Trinity: Spirit, Letter, And History In Statutory Interpretation, Carol Chomsky Jan 2000

Unlocking The Mysteries Of Holy Trinity: Spirit, Letter, And History In Statutory Interpretation, Carol Chomsky

Articles

In 1892, the Supreme Court construed the Alien Contract Labor Act of 1885, which barred importation of “any alien” under contract to perform “labor or service of any kind,” as not prohibiting a New York church from hiring a British pastor to occupy its vacant pulpit. “[A] thing may be within the letter of the statute and yet not within the statute because not within its spirit, nor within the intention of its makers,” wrote Justice David Brewer in Holy Trinity Church v. United States. Brewer's opinion is a touchstone for those seeking to overcome plain statutory language, but ...


A Statutory Model For Corporate Constituency Concerns, Edward S. Adams, John H. Matheson Jan 2000

A Statutory Model For Corporate Constituency Concerns, Edward S. Adams, John H. Matheson

Articles

The modern corporation by its nature creates interdependencies with a variety of groups with whom the corporation has a legitimate concern, such as employees, customers, suppliers, and members of the communities in which the corporation operates. Corporate governance involves a system of contractual and fiduciary duties that influence directors and officers to make decisions consistent with defined obligations. This system requires that directors consider shareholders' interests first and foremost in making corporate decisions because the share-holders are the, "owners," of the corporation. Over the past several decades, a number of states have implemented this policy by enacting constituency statutes. These ...


A Market-Based Solution To The Judicial Clerkship Selection Process, Edward S. Adams Jan 2000

A Market-Based Solution To The Judicial Clerkship Selection Process, Edward S. Adams

Articles

For many years, federal judges and others have labored to reform judicial clerkship hiring so judges might conduct a dignified, collegial, and efficient selection process. To date, however, these reform efforts have had little success. This Article endeavors to forge a solution to the problems endemic to the current judicial clerkship hiring process: lack of collegiality, cut-throat hiring methods, lack of efficiency, and hiring based on inadequate information about candidates. Part I of this Article explores the historical problems in the clerkship hiring process, reviews previously attempted but failed efforts at reform, and identifies problems with such approaches. Part II ...


Not "If" But "How": Reflecting On The Aba Commission's Recommendations On Multidisciplinary Practice, John H. Matheson, Edward S. Adams Jan 2000

Not "If" But "How": Reflecting On The Aba Commission's Recommendations On Multidisciplinary Practice, John H. Matheson, Edward S. Adams

Articles

Multidisciplinary practice (MDP) has been aptly described as the, "most important issue facing the legal profession today." The American Bar Association's Commission on Multidisciplinary Practice (Commission) surprised most observers on June 8, 1999 by recommending that the American Bar Association (ABA) amend the Model Rules of Professional Conduct (Model Rules) to allow lawyers to combine with, and share fees with, other professionals within a single professional entity. Under the proposal, lawyers could create partnerships with accountants, developers, engineers, bankers, and all other professionals, thereby giving clients access to one-stop shopping at multidisciplinary firms.


Reassignment Under The Americans With Disabilities Act: Reasonable Accommodation, Affirmative Action, Or Both?, Stephen F. Befort, Tracey Holmes Donesky Jan 2000

Reassignment Under The Americans With Disabilities Act: Reasonable Accommodation, Affirmative Action, Or Both?, Stephen F. Befort, Tracey Holmes Donesky

Articles

One of Congress's principal motivations for enacting the Americans with Disabilities Act (ADA) 1 was to help disabled individuals enter into and remain in the American workplace. In the ADA's "findings and purposes" section, Congress stated that "the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals." 2 The legislative history is filled with the statements of senators and representatives supporting the Act as a vehicle for bringing individuals with disabilities "into the economic and social mainstream of American life." 3 Legislators viewed ...


A Review Of The 51st Session Of The United Nations Sub-Commission On Promotion And Protection Of Human Rights, David Weissbrodt, Mayra Gomez, Bret Thiele Jan 2000

A Review Of The 51st Session Of The United Nations Sub-Commission On Promotion And Protection Of Human Rights, David Weissbrodt, Mayra Gomez, Bret Thiele

Articles

The United Nations Sub-Commission on the Promotion and Protection of Human Rights (Sub-Commission)' met at the European Headquarters of the UN in Geneva, Switzerland, from 2 August through 27 August 1999 for its fifty-first session. The Sub-Commission is a subsidiary body of the Commission on Human Rights (Commission).


Pride And Prejudice: A Study Of Connections, Mary Louise Fellows Jan 2000

Pride And Prejudice: A Study Of Connections, Mary Louise Fellows

Articles

Although customs surrounding attribution require that only I be named as author of this Article, that fact obscures other truths about this Article. 1 One way for readers to appreciate this Article as reflecting group activity at the same time it reflects my own individual effort is the literary allusion in the title to Jane Austen and her work. I feel a particular connection to Jane Austen because she seems neither to have enjoyed nor sought the solitary life many of us imagine novelists live. When Austen finds herself, after ten years of having written virtually nothing, back in a ...


An Analysis Of The Fifty-First Session Of The United Nations Sub-Commission On The Promotion And Protection Of Human Rights, David Weissbrodt, Mayra Gomez, Bret Thiele Jan 2000

An Analysis Of The Fifty-First Session Of The United Nations Sub-Commission On The Promotion And Protection Of Human Rights, David Weissbrodt, Mayra Gomez, Bret Thiele

Articles

The United Nations Sub-Commission on the Promotion and Protection of Human Rights (Sub-Commission), 2 formerly the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, met at the European Headquarters of the United Nations in Geneva, Switzerland, from 2 August through 27 August 1999 for its fifty-first session. 3 The Sub-Commission is a subsidiary body of the Commission on Human Rights [End Page 788] (Commission). It is composed of twenty-six members who are nominated by their respective governments and elected to four-year terms by the Commission. Under the principle of geographic distribution, the Sub-Commission has seven members from Africa ...


The Doctrine Of Piercing The Veil In An Era Of Multiple Limited Liability Entities: An Opportunity To Codify The Test For Waiving Owners' Limited Liability Protection, John H. Matheson, Raymond B. Eby Jan 2000

The Doctrine Of Piercing The Veil In An Era Of Multiple Limited Liability Entities: An Opportunity To Codify The Test For Waiving Owners' Limited Liability Protection, John H. Matheson, Raymond B. Eby

Articles

The use of the corporate form of business organization has always provided a firm's owners/shareholders with a presumptive shield from personal liability for the debts of the business. Case-by-case exceptions to this limited-liability shield have developed in each state under the general rubric of “piercing the veil.” Courts and commentators alike have noted the vagueness of the piercing analysis and have questioned the appropriateness of some of the factors employed in that analysis. In addition, new forms of business entities, such as limited liability companies and limited liability partnerships, have been legislatively created over the past several decades ...


The Curious Incident Of The Workers In The Boardroom, Brett Mcdonnell Jan 2000

The Curious Incident Of The Workers In The Boardroom, Brett Mcdonnell

Articles

In Silver Blaze, Sherlock Holmes investigated the disappearance of a prize horse and the killing of its trainer. At one point in the investigation the officer in charge, Inspector Gregory, asks Holmes, "'Is there any other point to which you would wash to draw my attention?' 2 Holmes replies, "'To the curious incident of the dog in the night-time.""' Gregory says "'The dog did nothing in the night-time."'' "'That was the curious incident,' remarked Sherlock Holmes."'


Esop's Failures: Fiduciary Duties When Managers Of Employee-Owned Companies Vote To Entrench Themselves, Brett Mcdonnell Jan 2000

Esop's Failures: Fiduciary Duties When Managers Of Employee-Owned Companies Vote To Entrench Themselves, Brett Mcdonnell

Articles

Managers, Inc.'s workers own the majority of the company's shares. They do not vote for the board of directors; instead, a trust votes the workers' shares. Managers, Inc.'s own directors appoint the committee that votes the trust's shares. Shockingly, those directors find themselves entrenched, winning repeated reelection under this system. The workers own the firm, but they have little or no say in the management of the firm.


Introducing Negotiation And Drafting Into The Contracts Classroom, Carol Chomsky, Maury Landsman Jan 2000

Introducing Negotiation And Drafting Into The Contracts Classroom, Carol Chomsky, Maury Landsman

Articles

It is by now almost a commonplace to say that the first year of law school should include skills-focused opportunities in addition to the massive doses of legal doctrine and analysis that form the core of the first year curriculum. 1 Understanding contracts only through the lens of litigated disputes gives students a very limited picture of what lawyers do with respect to contracts and little opportunity to develop the skills of effective representation and artful and precise drafting needed to avoid such litigation. Moreover, the necessary emphasis on contract doctrine may obscure the degree to which many contract-related problems ...


Colorado Association Of Law Libraries, Georgia Briscoe Jan 2000

Colorado Association Of Law Libraries, Georgia Briscoe

Articles

No abstract provided.


Indirect Constitutional Discourse: A Comment On Meese, Robert F. Nagel Jan 2000

Indirect Constitutional Discourse: A Comment On Meese, Robert F. Nagel

Articles

No abstract provided.


Comment: Human Rights, Nationalism, And Multiculturalism In Rhetoric, Ethics, And Politics: A Pluralist Critique, Michel Rosenfeld Jan 2000

Comment: Human Rights, Nationalism, And Multiculturalism In Rhetoric, Ethics, And Politics: A Pluralist Critique, Michel Rosenfeld

Articles

No abstract provided.


Comprehensive Pluralism Is Neither An Overlapping Consensus Nor A Modus Vivendi: A Reply To Professors Arato, Avineri, And Michelman, Michel Rosenfeld Jan 2000

Comprehensive Pluralism Is Neither An Overlapping Consensus Nor A Modus Vivendi: A Reply To Professors Arato, Avineri, And Michelman, Michel Rosenfeld

Articles

No abstract provided.


Comment: Cultural Pluralism, Nationalism, And Universal Rights, Suzanne Last Stone Jan 2000

Comment: Cultural Pluralism, Nationalism, And Universal Rights, Suzanne Last Stone

Articles

No abstract provided.


Patent Markets: A Framework For Evaluation, Michael J. Burstein Jan 2000

Patent Markets: A Framework For Evaluation, Michael J. Burstein

Articles

Patents have become financial assets, in both practice and theory. A nascent market for patents routinely produces headline-grabbing transactions in patent portfolios, and patent assertion entities frequently defend themselves as sources of liquidity essential for a patent market to function. Much of the discourse surrounding these developments assumes that a robust, liquid market for patents would improve the operation of the patent system. In this Essay, I challenge that assumption and systematically assess the cases for and against patent markets. I do so by taking seriously both the underlying innovation promotion goal of the patent system and the lessons of ...


Breaking The Code O Silence: Rediscovering "Custom" In Section 1983 Municipal Liability, Myriam E. Gilles Jan 2000

Breaking The Code O Silence: Rediscovering "Custom" In Section 1983 Municipal Liability, Myriam E. Gilles

Articles

No abstract provided.


Rethinking The Penalty Phase, Kyron Huigens Jan 2000

Rethinking The Penalty Phase, Kyron Huigens

Articles

This article argues that the chaos of the US Supreme Court’s death penalty jurisprudence can be sorted with the use of a single point of clarification. That jurisprudence uses the term “culpability” – and similar terms, such as desert, responsibility, and blameworthiness – without regard to a critical ambiguity. We use “culpability” to refer to fault in wrongdoing, as reflected in “culpability elements” such as purpose or recklessness. We also use culpability to refer to eligibility for punishment, which is at issue in the defenses of insanity or minority. Death sentencing is structured around aggravating and mitigating factors, but aggravation reflects ...


Kenneth Starr: Diabolically Evil?, Jeanne L. Schroeder, David Gray Carlson Jan 2000

Kenneth Starr: Diabolically Evil?, Jeanne L. Schroeder, David Gray Carlson

Articles

No abstract provided.


Adr: An Eclectic Array Of Processes, Rather Than One Eclectic Process, Lela P. Love, Kimberlee K. Kovach Jan 2000

Adr: An Eclectic Array Of Processes, Rather Than One Eclectic Process, Lela P. Love, Kimberlee K. Kovach

Articles

When mediators try to resolve a controversy by providing their analysis of the legal – or other – merits, they are providing the service that judges, arbitrators and neutral experts provide. In essence, such endeavors use the neutral’s judgment, award or opinion to determine or jump-start a resolution. This article urges that this add-on activity to mediation should be called by its proper name. The essay highlights the advantages of calling "mediation plus evaluation" a mixed process and discusses the advantages of having an eclectic and diverse mix of processes from which parties and counsel can choose to promote party choice ...


The Truth About The New Value Exception To Bankruptcy’S Absolute Priority Rule, David Gray Carlson, Jack F. Williams Jan 2000

The Truth About The New Value Exception To Bankruptcy’S Absolute Priority Rule, David Gray Carlson, Jack F. Williams

Articles

No abstract provided.


International Human Rights And Domestic Law Focusing On U.S. Law, With Some Reference To Israeli Law, Malvina Halberstam Jan 2000

International Human Rights And Domestic Law Focusing On U.S. Law, With Some Reference To Israeli Law, Malvina Halberstam

Articles

No abstract provided.


A Normative Analysis Of New Financially Engineered Derivatives, Peter H. Huang Jan 2000

A Normative Analysis Of New Financially Engineered Derivatives, Peter H. Huang

Articles

This Article analyzes whether the introduction of new derivative assets makes a society better or worse off. Because trading such non-redundant derivatives produces new distributions of income across time and over possible future contingencies, individuals can utilize such financial instruments to hedge risks not possible before the introduction of these assets. Thus, it may seem that new derivatives unambiguously benefit society. In fact, introducing sufficiently many new derivatives completes asset markets. Asset markets are complete if trading on them can attain every possible payoff pattern of wealth across time and over possible future contingencies. The first fundamental theorem of welfare ...


Reasons Within Passions: Emotions And Intentions In Property Rights Bargaining, Peter H. Huang Jan 2000

Reasons Within Passions: Emotions And Intentions In Property Rights Bargaining, Peter H. Huang

Articles

This article discusses the role of emotions (or feelings or affects) in property rights bargaining. Real world people choose bargaining strategies based upon not only rational calculations, but also their gut feelings. This article considers the impact of anger and shame on bargaining over property rights and the Coase theorem. Such emotions may depend on beliefs (expectations or assessments) about whether particular strategic decisions should or will occur. Such beliefs can be viewed as attributions over the intentions of others.