Law Commons^™

Comments On Proposed Treasury Regulations Defining Terms Relating To Marital Status, Anthony C. Infanti, The American Bar Association

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These comments respond to proposed Treasury Regulations defining terms relating to marital status in the Internal Revenue Code following the Supreme Court's decision in the Windsor and Obergefell cases. The comments applaud the Internal Revenue Service for reading gendered terms relating to marital status in a gender-neutral fashion. For a number of reasons, however, the comments recommend that the final regulations omit the proposed rule for determining an individual’s marital status and, in its place, codify the current deference to local law in determining marital status for federal tax purposes. Most importantly, the comments further recommend that the final regulations …

Declining Controversial Cases: How Marriage Equality Changed The Paradigm, Elena Baylis

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Until recently, state attorneys general defended their states’ laws as a matter of course. However, one attorney general’s decision not to defend his state’s law in a prominent marriage equality case sparked a cascade of attorney general declinations in other marriage equality cases. Declinations have also increased across a range of states and with respect to several other contentious subjects, including abortion and gun control. This Essay evaluates the causes and implications of this recent trend of state attorneys general abstaining from defending controversial laws on the grounds that those laws are unconstitutional, focusing on the marriage equality cases as …

With Marriage On The Decline And Cohabitation On The Rise, What About Marital Rights For Unmarried Partners?, Lawrence W. Waggoner

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This article draws attention to a cultural shift in the formation of families that has been and is taking place in this country and in the developed world. Part I uses recent government data to trace the decline of marriage and the rise of cohabitation in the United States. Between 2000 and 2010, the population grew by 9.71 %, but the husband and wife households only grew by 3.7%, while the unmarried couple households grew by 41.4%. A counter-intuitive finding is that the early 21st century data show little correlation between the marriage rate and economic conditions. Because of the …

Process Costs And Police Discretion, Charlie Gerstein, J. J. Prescott

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Cities across the country are debating police discretion. Much of this debate centers on “public order” offenses. These minor offenses are unusual in that the actual sentence violators receive when convicted — usually time already served in detention — is beside the point. Rather, public order offenses are enforced prior to any conviction by subjecting accused individuals to arrest, detention, and other legal process. These “process costs” are significant; they distort plea bargaining to the point that the substantive law behind the bargained-for conviction is largely irrelevant. But the ongoing debate about police discretion has ignored the centrality of these …

Derivative Works 2.0: Reconsidering Transformative Use In The Age Of Crowdsourced Creation, Jacqueline D. Lipton, John Tehranian

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Apple invites us to “Rip. Mix. Burn.” while Sony exhorts us to “make.believe.” Digital service providers enable us to create new forms of derivative work — work based substantially on one or more preexisting works. But can we, in a carefree and creative spirit, remix music, movies, and television shows without fear of copyright infringement liability? Despite the exponential growth of remixing technologies, content holders continue to benefit from the vagaries of copyright law. There are no clear principles to determine whether any given remix will infringe one or more copyrights. Thus, rights holders can easily and plausibly threaten infringement …

Identity And Narrative: Turning Oppression Into Client Empowerment In Social Security Disability Cases, Jonel Newman

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No abstract provided.

Legal Pluralism And Empires 1500-1850 (Book Review), Kunal Parker

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No abstract provided.

Foreword Snx 2014: Challenges To Justice Education: South-North Perspectives, Sheila I. Velez Martinez

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“Towards an Education for Justice: South North Perspectives” was the theme of the XI LatCrit South North Exchange on Theory, Culture and Law, convened at the Universidad de los Andes in Bogotá, Colombia in 2014. Scholars, students and activists from more than 10 countries encompassing the Global South and Global North engaged in a critical and animated exchange on the changing space of legal studies and how this change can be stirred towards acknowledging the need to integrate a concern for justice as part of legal education. The premise of the Conference was that the dominant model of legal education, …

企業の社会的責任と戦略的租税行動 [Corporate Social Responsibility And Strategic Tax Behavior], Reuven S. Avi-Yonah, Keisaku Koga Translator

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This paper addresses two questions. First, from the perspective of the corporation, should the corporation cooperate and pay the corporate tax, or should it engage in "strategic" tax behavior designed to minimize or eliminate its corporate tax burden? Second, from the perspective of the state, should the state use the corporate tax just to raise revenue, or should it also try to use it as a regulatory tool to steer corporate behavior in directions that it deems beneficial to society? The paper argues that whatever our view of the nature of the corporation and of the legitimacy of corporate social …

Latcrit Praxis @ Xx: Toward Equal Justice In Law, Education And Society, Tayyab Mahmud, Athena Mutua, Francisco Valdes

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No abstract provided.

Revisiting The Revolution: Reintegrating The Wealth Transmission System, Melanie B. Leslie, Stewart E. Sterk

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Thirty years ago, John Langbein published "The Nonprobate Revolution and the Future of Succession." The article celebrated testators' newfound ability to avoid the expense and delay of the probate court system by holding assets in a variety of non-probate devices, such as retirement and bank accounts with beneficiary designations and revocable trusts. Langbein high-lighted problems the revolution might generate and predicted how they might be resolved. Since then, significant problems have indeed developed. First, wills law doctrines designed to effectuate intent of testators have not been universally extended to non-probate transfers. Second, the fragmentation of the wealth transmission process has …

On Not 'Having It Both Ways' And Still Losing: Reflections On Fifty Years Of Pregnancy Litigation Under Title Vii, Deborah L. Brake

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This article, published in the B.U. Law Review Symposium issue, “The Civil Rights Act of 1964 at 50: Past, Present and Future,” reflects on the past fifty years of conflict and struggle over how to treat pregnancy discrimination under Title VII. Pregnancy has played a pivotal role in debates among feminist legal scholars and women’s rights advocates about the limitations of both the equal treatment and special treatment anti-discrimination frameworks. The article’s title references the much-discussed Wendy W. Williams cautionary note that if we cannot have it “both ways” we need to decide which way we want to have it …

Normalizing Disability In Families, Mary Crossley

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In “Selection against Disability: Abortion, ART, and Access,” Alicia Ouellette probes a particularly vexing point of intersection between ART (assisted reproductive technology) and abortion: how negative assumptions about the capacities of disabled persons and the value of life with disability infect both prospective parents’ prenatal decisions about what pregnancies to pursue and fertility doctors’ decisions about providing services to disabled adults. This commentary on Ouellette’s contribution to the symposium titled “Intersections in Reproduction: Perspectives on Abortion and Assisted Reproductive Technologies" first briefly describes Ouellette’s key points and her article’s most valuable contributions. It then suggests further expanding the frame of …

Bridging The Gap Between Unmet Legal Needs And An Oversupply Of Lawyers: Creating Neighborhood Law Offices - The Philadelphia Experiment, Jules Lobel, Matthew Chapman

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In the United States there is, simultaneously, an abundance of unemployed lawyers and a significant unmet need for legal care among middle-class households. This unfortunate paradox is protected by ideological, cultural, and practical paradigms both inside the legal community and out. These paradigms include the legal chase for prestige, the consumer’s inability to recognize a legal need, and the growing mountain of debt new lawyers enter the profession with. This article will discuss a very successful National Lawyers Guild experiment from 1930s-era Philadelphia that addressed a similar situation, in a time with similar paradigms, by emphasizing community-connected lawyering. That is, …

Resistance Songs: Mobilizing The Law And Politics Of Community, Anthony V. Alfieri

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No abstract provided.

'Experiential Education Through The Vis Moot' And 'Building On The Bergsten Legacy: The Vis Moot As A Platform For Legal Education', Ronald A. Brand

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Recent discussions of experiential education have at times considered the role of moot opportunities in legal education. Many, if not most, moot courts and related activities have been designed primarily as competitions. One moot, the Willem Vis International Commercial Arbitration Moot, is different in that it was designed, and has been consistently administered, as a tool for educating future lawyers. That education has included both skills training of the highest order and the development of a doctrinal understanding of important international legal instruments, especially those created and administered by the United Nations Commission on International Trade Law (UNCITRAL). This pair …

Preparing For Service: A Template For 21st Century Legal Education, Michael J. Madison

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Legal educators today grapple with the changing dynamics of legal employment markets; the evolution of technologies and business models driving changes to the legal profession; and the economics of operating – and attending – a law school. Accrediting organizations and practitioners pressure law schools to prepare new lawyers both to be ready to practice and to be ready for an ever-fluid career path. From the standpoint of law schools in general and any one law school in particular, constraints and limitations surround us. Adaptation through innovation is the order of the day.

How, when, and in what direction should innovation …

Evolving Standards Of Domination: Abandoning A Flawed Legal Standard And Approaching A New Era In Penal Reform, Spearit

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This Article critiques the evolving standards of decency doctrine as a form of Social Darwinism. It argues that evolving standards of decency provided a system of review that was tailor-made for Civil Rights opponents to scale back racial progress. Although as a doctrinal matter, evolving standards sought to tie punishment practices to social mores, prison sentencing became subject to political agendas that determined the course of punishment more than the benevolence of a maturing society. Indeed, rather than the fierce competition that is supposed to guide social development, the criminal justice system was consciously deployed as a means of social …

Towards A New Eviction Jurisprudence, Gerald S. Dickinson

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The One-Strike Rule, contemplated in a model lease provision, has been the primary mechanism employed by Congress to eliminate the “scourge of drugs” in public housing projects. The rule gives public housing authorities (PHA) discretion to evict tenants engaged in drug-related criminal activity and hold the tenant equally liable if a guest or family member engaged in the criminal activity, even if the tenant had no knowledge of the offense. The Supreme Court most notably upheld this policy in 2002 in United States Department of Housing and Urban Development v. Rucker.

Today the wisdom of that rule, which has served …

Towards An Outcrit Pedagogy Of Anti-Subordination In The Classroom, Sheila I. Velez Martinez

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This article discusses how traditional teaching practices can reinforce systemic discrimination, exclusion, subordination and oppression within the classroom in particular detriment to women and students of color. The article traces the discussions about pedagogy in Outcrit literature and proposes that Outcrit scholars teaching techniques within the classroom should reflect anti-subordination praxis in teaching. Drawing from the work of Freire, Bell and others, the article proposes that teaching from an anti-subordination perspective requires a praxis of collaborative, non-hierarchical teaching that calls for an epistemological shift. A pedagogy that frees the student to think independently and leads to an experience where there …

Taxing The Unheavenly Chorus: Why Section 501(C)(6) Trade Associations Are Undeserving Of Tax Exemption, Philip Hackney

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Our federal, state, and local governments provide a subsidy that enhances the political voice of business interests. This article discusses the federal subsidy for business interests provided through the Internal Revenue Code (“Code”) and argues why we should end that subsidy. Under the same section that provides exemption from income tax for charitable organizations, the Code also exempts nonprofit organizations classified as “business leagues, chambers of commerce, real-estate boards, boards of trade, or professional football leagues.” Theory supporting tax exemption states that we should subsidize nonprofit organizations that provide goods or services that are undersupplied by the market. A charitable …

Data Breach (Regulatory) Effects, David Thaw

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No abstract provided.

Innovators, Esq.: Training The Next Generation Of Lawyer Social Entrepreneurs, Stephanie Dangel, Michael J. Madison

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Today’s law school graduates need to be entrepreneurial to succeed, but traditional legal education tends to produce lawyers who are “strange bedfellows” with entrepreneurs. This article begins by examining the innovative programs at many law schools that ameliorate this tension, including the programs offered by our Innovation Practice Institute (IPI) at the University of Pittsburgh School of Law. Although these programs train law students to represent entrepreneurs and to be entrepreneurial in law-related careers, few (if any) law schools train law students to be “business” entrepreneurs. Drawing on our own experiences and the writings of Bill Drayton, the lawyer who …

Speech Or Conduct? The Free Speech Claims Of Wedding Vendors, Caroline Mala Corbin

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No abstract provided.