Law Commons^™

Legislating Morality: The Duty To The Tax System Reconsidered, Watson

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Four years ago, I presented a paper at a symposium on professionalism jointly sponsored by the University of Kansas Law School and the Kansas Bar Association. That paper espoused the view (contrary to what appears to be the popular view among tax scholars) that tax lawyers owe no special duty to the "tax system" other than to abide by the law and the applicable standards of professional conduct. During the four-year interim since my last visit to Kansas, however, we have witnessed the deleterious effect of the IRS Restructuring and Reform Act of 1998 (RRA '98) on IRS enforcement and …

Daubert & Danger: The "Fit" Of Expert Predictions In Civil Commitments, Alex Scherr

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The opinions of experts in prediction in civil commitment hearings should help the courts, but over thirty years of commentary, judicial opinion, and scientific review argue that predictions of danger lack scientific rigor. The United States Supreme Court has commented regularly on the uncertainty of predictive science. The American Psychiatric Association has argued to the Court that "[t]he professional literature uniformly establishes that such predictions are fundamentally of very low reliability." Scientific studies indicate that some predictions do little better than chance or lay speculation, and even the best predictions leave substantial room for error about individual cases. The sharpest …

Understanding Price-Based Antidilution Protection: Five Principles To Apply When Negotiating A Down-Round Financing, Robert P. Bartlett

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As most venture capital investors are aware, the economic downturn of the past two years—and the concomitant decrease in private company valuations—has created an opportunity for significant returns on new venture investments seldom seen since the early 1990s. Yet while the investment opportunities of the current economic environment may have attractive financial valuations, they frequently come with the added cost of significant transactional complexity. In particular, the issuance of securities by a private company at a price that is below the price previously paid by the company's investors (typically referred to as a “down-round” financing) may trigger one or more …

Race-Conscious Affirmative Action By Tax Exempt 501(C)(3) Corporations After Grutter And Gratz, David A. Brennen

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Part I of this Article examines how the Equal Protection Clause limits the government's ability to engage in race-based affirmative action. Part I focuses on how constitutional law analysis has evolved in light of the Supreme Court's recent decisions in Grutter v. Bollinger and Gratz v. Bollinger. Part II provides a brief description of tax law's public policy limitation. This part shows how the IRS, though not required to do so, has generally followed Equal Protection Clause jurisprudence when applying the public policy limitation to race-based activity by private tax exempt 501(c)(3) institutions. Part III discusses how the Supreme …

I Am Glad I Got To Know Him, David Shipley

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This article is part of a number of articles in tribute to L. Ray Patterson, which appear in 11 J. Intel Prop i (2003).

The (Un)Favorable Judgment Of History: Deportation Hearings, The Palmer Raids, And The Meaning Of History, Harlan G. Cohen

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As Americans respond to the events of September 11, 2001, they are being forced to contemplate their place in American history-past, present, and future. This has become particularly stark in the fight over secret deportation hearings. Following September 11, Attorney General John Ashcroft announced that the deportation hearings of "special interest" aliens would be closed to the public. Applying Richmond Newspapers's two-pronged logic-and-experience test, the Third and Sixth Circuits subsequently split over the constitutionality of the blanket closure. At the heart of their disagreement was the scarce history of deportation hearings and whether such hearings had been closed in the …

Resigning As Dean: Stepping Down Or Stepping Up?, David E. Shipley

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I am sure that I will enjoy being a regular law professor again, but there are some aspects of being Dean that I will miss. There are also some parts of the job I am happy to leave to my successor. Let me start with the things I am happy are no longer my responsibility.

Jurisdiction To Tax Income And Consumption In The New Economy: A Theoretical And Comparative Perspective, Walter Hellerstein

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The collection of rules that falls under the rubric of "jurisdiction to tax" has aptly been described as "a body of law in search of a theory." Although this Article lays no claim to advancing such a theory, it does seek to provide a broad theoretical perspective on jurisdiction-to-tax issues raised by income and consumption taxation in the new economy. It is designed to suggest ways of thinking about the fundamental questions involved, questions that are often obscured by a preoccupation with the application of specific jurisdiction-to-tax rules to individualized fact patterns in particularized contexts. In short, this Article is …

The American Challenge To International Law: A Tentative Framework For Debate, Harlan G. Cohen

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The United States often appears hypocritical in its commitment to International Law. It supports Nuremberg, Yugoslavia, and Rwandan tribunals, but opposes the International Criminal Court. It supports the creation of the United Nations, but seeks unilateral action in Iraq. This Essay explores these seeming contradictions in American stances toward international law. It argues that while such apparent hypocrisy might be explained by mere pragmatism, ideas prevalent in American foreign policy history seem to point in a more dangerous direction, that such divergent actions may actually be informed by a coherent, specifically American conception of international law. In particular, this Essay …

Random Walks, Non-Cooperation Games, And The Complex Mathematics Of Patent Pricing, F. Russell Denton, Paul J. Heald

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Current patent valuation methods have been described charitably as “inappropriate,” “crude,” “inherently unreliable,” and a “guesstimate.” This article provides a more rational and systematic tool than any we have found in the existing literature or relevant case law. We believe our approach to patent valuation will be useful in improving investment decisions, in facilitating licensing negotiations, and in reducing error costs in litigation. An improved valuation metric also promises to make patents easier to take as collateral and to reduce the amount of “Blue Sky” in mergers and acquisitions involving high tech corporations. To the extent that valuation problems have …

Federal Taxation (2002 Eleventh Circuit Survey), David A. Brennen

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During 2002 federal courts in the United States decided nineteen cases that directly impact federal tax law in the Eleventh Circuit. These cases involve a variety of tax law matters including Federal Insurance Contributions Act ("FICA") payroll tax, estate and gift tax, IRS authority to levy and assess tax, and discharges in bankruptcy. Other tax-related matters addressed by courts in 2002 that impact tax law in the Eleventh Circuit include inventory recapture in an S-corporation conversion, attorney fees for the prevailing party in a tax dispute, and injunctions against tax preparers. By far the most important tax case decided in …

Race And The Georgia Courts: Implications Of The Georgia Public Trust And Confidence Survey For Batson V. Kentucky And Its Progeny, George W. Dougherty, Randy Beck, Mark D. Bradbury

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Put simply, there is a perception among many Georgians that the court system treats minorities worse than whites. This Essay considers implications of the Georgia findings for a line of United States Supreme Court decisions designed to prevent racial discrimination by trial lawyers in the selection of trial juries.

What's Wrong With Eldred? An Essay On Copyright Jurisprudence, L. Ray Patterson

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With few exceptions, the U.S. Supreme Court has rendered wise copyright decisions consistent with the Copyright Clause. Unfortunately, Eldred v. Ashcroft adds to the exceptions. The difference is that the former are positive law, and the latter natural law, decisions.

Racial Discrimination In Jury Selection: Professional Misconduct, Not Legitimate Advocacy, Lonnie T. Brown, Jr.

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This Article examines the paradox between the adversary and disciplinary systems' outward condemnation of discrimination in jury selection and their apparent simultaneous inward acceptance of such conduct as legitimate advocacy.

Misreading A Canonical Work: An Analysis Of Mansfield's 1994 Study, Paul J. Heald

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It would be hard to overestimate the influence of Edwin Mansfield's 1994 empirical study for the International Finance Corporation (an arm of the World Bank) of American business executives' attitudes toward low levels of intellectual property protection in developing nations. His paper is ubiquitously cited for the proposition that if developing countries raise their level of intellectual property protection (especially patents), they will attract foreign investment and technology transfer. In the spirit of the honoree of this symposium, I take a skeptical new look at a canonical work and conclude that the developing world should be very suspicious of the …

Legal Regulation Of The Effects Of Military Activity On The Environment, Daniel M. Bodansky

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While in times of peace a growing number of multilateral environmental agreements serves to protect the environment, existing international law affords only very limited protection against the threats of war to the environment. This is the finding of a study by Prof. Daniel Bodansky, University of Georgia, USA on behalf of the German Federal Environmental Agency (Umweltbundesamt) which reviews the adequacy of the law of war and of the general principles of international law to protect the environment. At present international law leaves nation states with a wide degree of discretion to justify environmental harm caused by acts of war.

The Bitter Has Some Sweet: Potential Antitrust Enforcement Benefit From Patent Law's Procedural Rules, Joseph S. Miller

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No abstract provided.

Assessing International Criminal Adjudication Of Human Rights Atrocities, Diane Marie Amann

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These remarks were presented on January 5, 2001, as part of a panel on international criminal adjudication at a conference entitled "Into the 21st Century: Reconstruction and Reparations" in Cape Town, South Africa.

The United States joined a number of countries that rushed to sign the treaty to establish the International Criminal Court. They included states like Yemen, Iran, and Israel. These three, along with the United States, were among the few that had refused to vote in favor of the treaty when it was adopted at a diplomatic conference in Rome in 1998. By the end of 2000, 139 …

Proximate Cause And The American Law Institute: The False Choice Between The "Direct Consequences" Test And The "Risk Standard", Michael Wells

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This article takes a new look at an old problem that lies at the heart of tort law: How does one define the scope of liability when a negligent actor causes unforeseeable harm? This topic once drew the attention of such legal giants as Benjamin Cardozo, Robert Keeton, and William Prosser. Today it seems largely forgotten, except for a class or two in first year torts courses.

The occasion for examining the unforeseeable harm issue is the proposed revision of the Restatement (Third) of Torts by the American Law Institute ("ALI"). In a tentative draft of portions of the Restatement …

Adult Guardianship In Georgia: Are The Rights Of Proposed Wards Being Protected? Can We Tell?, Eleanor Crosby Lanier

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National scrutiny of guardianship policies and practice by scholars and legal, health, and social service practitioners followed. This resulted in a succession of forums, studies, and recommendations aimed at improving the guardianship system. One such forum was the Wingspread conference, convened by the American Bar Association (ABA) in 1988. Experts from a variety of fields met to produce a groundbreaking set of recommendations for reforming guardianship. Wingspan, a second national guardianship conference addressing reform issues in 2001, produced in a second series of recommendations. The recommendations from these two conferences proposed greater protection for the proposed ward's liberty interests and …

The Diligent Prosecution Bar To Citizen Suits: The Search For Adequate Representation, Peter A. Appel

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To ensure that citizen suits assist but do not replace or overshadow government enforcement actions, all environmental statutes which authorize citizen suits bar such suits in certain circumstances. This short Article examines the relatively narrow but important problems created by one such bar, namely the statutory bar on a citizen suit if the federal or state government is “diligently prosecuting” an action against the same violator. The requirement that a governmental prosecution be diligent protects against two types of undesirable situations. On the one hand, the diligent prosecution bar prevents citizens from bringing simple “me too” actions. One would not …

Lightening The Load: In The Georgia Supreme Court, R. Perry Sentell Jr.

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The Supreme Court of Georgia enjoys legendary status in perpetuating both "law" and "justice" for the citizens it serves. It functions as an institution of rich tradition, and it operates from a perspective of historic proportions. The court's heritage exudes a profusion of shaping facets, facets coalescing to yield an indelible profiles of Georgia's juristic content. That profile reflects such characteristics as the court's authoritative underpinnings: the legends of judicial fame to whom the court periodically returns for lessons of wisdom. Other distinctions focus upon the court's output: the per curiam opinion, for example, constitutes an expressive peculiarity of historical …

The Heart Of Federalism: Pretext Review Of Means-End Relationships, J. Randy Beck

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Section I of this article seeks to correct a common scholarly misconception regarding the sort of pretext review envisioned by McCulloch v. Maryland. All students of McCulloch understand the decision to call for judicial review of the means-end relationship underlying a federal statute. But McCulloch also indicated that the Court would strike down legislation "should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government." Various constitutional scholars construe this pretext passage to contemplate a second inquiry--separate from the Court's scrutiny of means-end relationships--into whether the legislative motive behind a …

Arbitration And The Administrative State, Rebecca H. White

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Two important doctrinal developments of the 1980s--judicial deference to agency interpretations of statutes and the enforceability of predispute agreements to arbitrate statutory claims--individually have received considerable attention from courts and commentators. However, the interplay between these two doctrinal strands has gone largely unnoticed. This Article recognizes that both strands have something important in common--each upholds statutory interpretation by entities which the Chevron doctrine, in which the Court held that statutory silence or ambiguity may serve as an implied delegation of interpretative authority to administrative agencies, applies in the context of arbitration of statutory claims. It considers whether an understanding of …

Foreword: Symposium--Ethics 2000 And Beyond: Reform Or Professional Responsibility As Usual, Lonnie T. Brown, Jr.

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The topic of this Symposium -- Ethics 2000 and Beyond: Reform or Professional Responsibility as Usual? -- is one that likely does not immediately resonate with many other than professional responsibility teachers and scholars. It is, however, a subject of critical importance to all existing and future members of the legal profession. This was true at the time that the Symposium was conducted in the spring of 2002, and it is even truer today in light of ever-growing concerns with regard to the ethical duties of lawyers, particularly those who represent corporate clients believed or known to be involved in …

The New Economic Credentialing: Protecting Hospitals From Competition By Medical Staff Members, Elizabeth Weeks

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This Article addresses hospitals' use of economic criteria to determine a physician's qualifications for staff privileges. Hospitals are resorting to economic conflict-of-interest credentialing policies in an attempt to ensure physicians' loyalty and mantain their own economic viability. Physicians, however, argue that entrepenurial activities are necessary for them to meet the economic challenges posed by declining reimbursement and rising insurance costs. This Article surveys the numerous legal theories that litigants and enforcement authorities could employ in attacking these new types of credentialing policies. The Article concludes that, in most jurisdictions, hospitals should be able to implement their policies in ways that …