Law Commons^™

The Liberty Of The Church: Source, Scope And Scandal, Patrick Mckinley Brennan

Working Paper Series

This article was presented at a conference, and is part of a symposium, on "The Freedom of the Church in the Modern Era." The article argues that the liberty of the Church, libertas Ecclesiae, is not a mere metaphor, pace the views of some other contributions to the conference and symposium and of the mentality mostly prevailing over the last five hundred years. The argument is that the Church and her directly God-given rights are ontologically irreducible in a way that the rights of, say, the state of California or even of the United States are not. Based on a …

Patent Portfolios As Securities, Michael Risch

Working Paper Series

Companies of all types are buying, selling, and licensing patents - not just one patent, but many patents bundled into large portfolios. A primary problem with these transactions is that the market is illiquid: parties cannot identify holders of relevant portfolios, they cannot agree on the value of the portfolio, and the specter of litigation taints every negotiation.

This article presents a new way to improve market formation and integrity by proposing that patent portfolios be treated as securities. If patent portfolio transactions are treated like stock transactions, sellers steering clear of fraud laws may be forced to disclose information …

Resisting The Grand Coalition In Favor Of The Status Quo By Giving Full Scope To The Libertas Ecclesiae, Patrick Mckinley Brennan

Working Paper Series

This paper argues that questions about "religious freedom" must be subordinated to the fundamental principle of the liberty of the Church, libertas Ecclesiae. The First Amendment's agnosticism with respect to the liberty of the Church is not ultimately normative. Catholics and others who merely seek religious "accommodation," as with the HHS mandate, for example, are agents of a status quo that illegitimately has comfortable self-preservation as its highest value. It is Catholic doctrine that "creation was for the sake of the Church," not for the sake of, say, religious freedom. The paper argues that the contingent constitution of …

“Religious Freedom,” The Individual Mandate, And Gifts: On Why The Church Is Not A Bomb Shelter, Patrick Mckinley Brennan

Working Paper Series

The Health and Human Services' regulatory requirement that all but a narrow set of "religious" employers provide contraceptives to employees is an example of what Robert Post and Nancy Rosenblum refer to as a growing "congruence" between civil society's values and the state's legally enacted policy. Catholics and many others have resisted the HHS requirement on the ground that it violates "religious freedom." They ask (in the words of Cardinal Dolan) to be "left alone" by the state. But the argument to be "left alone" overlooks or suppresses the fact that the Catholic Church understands that it is its role …

“The Pursuit Of Happiness” Comes Home To Roost? Same-Sex Union, The Summum Bonum, And Equality, Patrick Mckinley Brennan

Working Paper Series

John Locke understood human happiness to amount to the removal of "uneasiness." This paper argues that,to the extent that the United States is a nation dedicated to "the pursuit of happiness" understood as the removal of "uneasiness," same-sex unions or marriages should be given legal recognition. While Locke defended a variation on traditional marriage on the grounds of progenitiveness and care for dependent offspring, his more foundational commitment to the importance of the removal of uneasiness precludes, on pain of inconsistency, limiting marriage to opposite-sex couples. This paper argues, furthermore, that conservatives and neo-conservatives who celebrate this nation's being …

Environmental Law Outside The Canon, Todd S. Aagaard

Working Paper Series

It is time to rethink the domination of environmental law by a canon of major federal environmental statutes enacted in the 1970s. Environmental law is in a malaise. Despite widespread agreement that existing laws are inadequate to address current environmental problems, Congress has not passed a major environmental statute in more than twenty years. If it is to succeed, the environmental law of this new century may need to evolve into something that looks quite different than the extant environmental law canon. The next generation of environmental laws must be viable for creation and implementation even in an antagonistic political …

Apple Hearing: Observations From An Expert Witness, J. Richard Harvey

Working Paper Series

The US Senate Permanent Subcommittee on Investigations held a highly publicized hearing on May 21, 2013 to discuss Apple, Inc.’s international tax planning. As the first expert witness, I had a ring-side seat to the hearing and Apple’s international tax planning.

One purpose of this article is to clearly identify the two key tax policy issues that need to be addressed by policymakers both in the US and internationally. Because the discussion at the hearing was very U.S. centric, these two issues may have been lost in the rhetoric.

• Should the US and the rest of the world allow …

Testimony Of J. Richard (Dick) Harvey, Jr. Before The U.S. Senate Permanent Subcommittee On Investigations May 21, 2013, J. Richard Harvey

Working Paper Series

Apple is an iconic US multinational corporation. In addition to demonstrating excellence in designing, building, and selling consumer products, Apple has been very successful at minimizing its global income tax burden. This expert testimony describes how Apple:

• allocates approximately two-thirds of its global income to Ireland, a country where only 4% of its employees and 1% of its customers are located,
• minimizes Irish tax by creating an Irish entity that is managed and controlled in the US, and
• avoids the US Subpart F rules.

More generally, the testimony illustrates techniques used by US MNCs to shift income …

“Harmonizing Current Threats: Using The Outcry For Legal Education Reforms To Take Another Look At Civil Gideon And What It Means To Be An American Lawyer”, Cathryn A. Miller-Wilson

Working Paper Series

Drawing from the broad and varied literature on legal ethics, the paper demonstrates that legal education and access to justice concerns can and should be addressed simultaneously in our current political and economic climate. Current threats to legal education, and to lawyering in general, present an opportunity for legal education transformation. Applying legal ethics theory to an analysis of these threats provides support for the creation of teaching law firms, similar in size and scope to teaching hospitals, that will employ clinical teaching methodology, substantially enhance ethics teaching and significantly address the issue of access to justice.

History Of Low-Income Taxpayer Clinics, T. Keith Fogg

Working Paper Series

This article provides a chronological history of low-income tax clinics in the United States from their inception in 1974 to the present. It discusses leaders in the tax clinic movement such as Stuart Filler, Janet Spragens and Nina Olson and their impact on the growth of tax clinics. In addition to individual leaders, several institutions played significant roles in shaping the development of tax clinics. Tax clinics developed parallel to and then in conjunction with legal service corporation offices and academic clinics. The article discusses the growth of tax clinics within the broader growth of poverty law and the academic …

The Mighty Work Of Making Nations Happy: A Response To James Davison Hunter, Patrick Mckinley Brennan

Working Paper Series

This article is an invited response to James Davison Hunter’s much-discussed book To Change the World: The Irony, Tragedy, and Possibility of Christianity in the Late Modern World (Oxford University Press, 2010). Hunter, a sociologist at UVA and a believing Protestant, claims that law’s capacity to contribute to social change is “mostly illusory” and that Christians, therefore, should practice “faithful presence” in the public square rather than seek to influence law directly. My response is that it is, in fact, law’s stunning ability to alter and limit available choices that makes it an object of deservedly fierce contest. The wild …