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Series

Articles

University of Minnesota Law School

2007

Articles 1 - 30 of 35

Full-Text Articles in Law

Creating Failures In The Market For Tax Planning, Phillip A. Curry, Claire Hill, Francesco Parisi Jan 2007

Creating Failures In The Market For Tax Planning, Phillip A. Curry, Claire Hill, Francesco Parisi

Articles

In this paper we consider the role of governments in designing their policy for tax planning strategies. We consider two distinct types of social costs: the cost associated with lost tax revenue, and the cost that arises from taxpayers' search for new methods to reduce their tax burden. Inevitably, reducing one of these costs comes at the expense of increasing the other; the government faces a tradeoff. By recognizing these costs and the tradeoff the government faces, we can better understand current tax policy. Moreover, a wider recognition of the tradeoff described above, and a systematic consideration of how to ...


In Search Of The Modern Skidmore Standard, Kristin Hickman, Matthew D. Krueger Jan 2007

In Search Of The Modern Skidmore Standard, Kristin Hickman, Matthew D. Krueger

Articles

This Article offers a comprehensive examination of the Skidmore standard for judicial review of agency legal interpretations as applied by the courts in the period since the Supreme Court revitalized Skidmore in United States v. Mead Corp. First, the Article documents an empirical study of five years worth of Skidmore applications in the federal courts of appeals. In the study, we evaluate two competing conceptions of Skidmore review - the independent judgment model and the theoretically more deferential sliding-scale model - and conclude that the appellate courts overwhelmingly follow the sliding scale approach. Also, contrary to two other, significantly more limited studies ...


Causes Of Popular Dissatisfaction With The Administration Of Justice In The Twenty-First Century, Robert Stein Jan 2007

Causes Of Popular Dissatisfaction With The Administration Of Justice In The Twenty-First Century, Robert Stein

Articles

We are here today to celebrate and be challenged by a remarkable speech delivered by Dean Roscoe Pound on August 29, 1906. 1 We meet in the city where Dean Pound gave his historic address. On that occasion, Dean Pound was not Dean of the Harvard Law School, which he later became, but rather was the 36-year-old Dean of the University of Nebraska College of Law. 2 He was a well- educated man, having both a law degree from Northwestern University School of Law and a PhD in Botany from the University of Nebraska, 3 but he was not very ...


Gender, Truth & Transition, Fionnuala Ní Aoláin, Catherine Turner Jan 2007

Gender, Truth & Transition, Fionnuala Ní Aoláin, Catherine Turner

Articles

This article introduces the role and function of truth commission and explores a number of the structural and institutional components which profoundly affect women's experiences of accountability in times of transition.


Determinants Of Penal Policies, Michael Tonry Jan 2007

Determinants Of Penal Policies, Michael Tonry

Articles

No abstract provided.


The Minnesota Fiscal Disparities Act Of 1971: The Twin Cities' Struggle And Blueprint For Regional Cooperation, Myron Orfield, Nicholas Wallace Jan 2007

The Minnesota Fiscal Disparities Act Of 1971: The Twin Cities' Struggle And Blueprint For Regional Cooperation, Myron Orfield, Nicholas Wallace

Articles

No abstract provided.


Punitive Damages And Valuing Harm, Alexandra B. Klass Jan 2007

Punitive Damages And Valuing Harm, Alexandra B. Klass

Articles

In 2003, the Supreme Court created a presumption that only single-digit ratios of punitive damages to compensatory damages would satisfy substantive due process limits. The exception to this presumption is when the defendant's misconduct results in only a small amount of compensatory damages or when harm is difficult to value. This Article proposes that while lower courts have properly departed from single-digit ratios where the compensatory damage are small, they have had more difficulty doing so when harm is difficult to value. As a result, lower courts are mechanically applying a single-digit ratio in cases where the Court's ...


The Perfect Storm Of Retirement Insecurity: Fixing The Three-Legged Stool Of Social Security, Pensions, And Personal Savings, Stephen F. Befort Jan 2007

The Perfect Storm Of Retirement Insecurity: Fixing The Three-Legged Stool Of Social Security, Pensions, And Personal Savings, Stephen F. Befort

Articles

This article provides a wide-angle view of the looming crisis in retirement security. The impending confluence of a burgeoning retiree cohort and a diminishing resource base threatens to wreck havoc with the financial well-being of the coming generation of retirees. This article first reviews the current status of retirement security in the United States and finds that all three legs of the retirement stool - Social Security, pensions, and private savings - are projected to fall short of contributing adequate resources for future retirees. The article then turns toward a discussion of the possible responses for averting this potential crisis. After exploring ...


"Macro-Transparency" As Structural Directive: A Look At The Nsa Surveillance Controversy, Heidi Kitrosser Jan 2007

"Macro-Transparency" As Structural Directive: A Look At The Nsa Surveillance Controversy, Heidi Kitrosser

Articles

This article was prepared for the Minnesota Law Review's fall 2006 symposium. The article does two main things: (1) It considers the relationship between constitutional structure and government information control and (2) It uses the recent NSA surveillance controversy to exemplify its constitutional analysis. The core constitutional argument is as follows: Much of the Constitution, including provisions about political branch structure, is about facilitating inter-branch transparency and transparency between the branches and the people. At the same time, the Constitution leaves some room for government secrecy. Constitutional structure gives us a way to reconcile these two characteristics: any government ...


Common Law And Federalism In The Age Of The Regulatory State, Alexandra B. Klass Jan 2007

Common Law And Federalism In The Age Of The Regulatory State, Alexandra B. Klass

Articles

Over the past several decades, the growth of federal statutes and the rise of the regulatory state have weakened and displaced state common law even in the absence of express or implied preemption. However, there is a strong theoretical and judicial foundation on which to argue that the existence of statutes, regulations, and the data they generate should be used to inform and develop state common law rather than overshadow or displace it. Moreover, in this current age of the new federalism, such progressive common law development at the state level may be particularly timely and appropriate. This article uses ...


Secrecy And Separated Powers: Executive Privilege Revisited, Heidi Kitrosser Jan 2007

Secrecy And Separated Powers: Executive Privilege Revisited, Heidi Kitrosser

Articles

This Article considers the constitutional validity of executive privilege claims made by the President against statutorily authorized information requests. The Article concludes that such claims are constitutionally illegitimate and that courts, when turned to, should order compliance with statutorily authorized demands for information in the face of executive privilege claims. This conclusion is reached in two steps. First, perusal of Article I's list of legislative powers and Article II's list of presidential powers does not clearly resolve the issue. Rather, such perusal alone offers fair ground to deem control of executive branch information both within Congress' "sweeping clause ...


Of Lenity, Chevron, And Kpmg, Kristin Hickman Jan 2007

Of Lenity, Chevron, And Kpmg, Kristin Hickman

Articles

Tax shelters generally are designed to take advantage of statutory ambiguity in the tax code. In the civil context, depending upon the format of the IRS's interpretation, a finding of ambiguity typically means that the reviewing court should apply one or another doctrine of judicial deference in evaluating the government's interpretation: either the strong, mandatory Chevron deference, the slightly less deferential Skidmore deference standard, or perhaps the tax-specific National Muffler deference. Whichever of these review standards applies, the government has a distinct advantage over the taxpayer in persuading the court to adopt the government's interpretation of the ...


Hamdan And Common Article 3: Did The Supreme Court Get It Right?, Fionnuala Ní Aoláin Jan 2007

Hamdan And Common Article 3: Did The Supreme Court Get It Right?, Fionnuala Ní Aoláin

Articles

Following the atrocities of September 11, 2001, the United States has activated a highly focused and high profile set of legal, political, and military responses to perceived threats to its security at home and abroad. Legal responses to the 'war on terror' have been extensive and central to this undertaking. It is a well-known truism that courts (both national and international) tend to give considerable deference to states when political or military crises are at hand. Courts usually seek to avoid direct legal confrontation with states, and if required to adjudicate on the validity of legal responses to a perceived ...


Stone V. Ritter And The Expanding Duty Of Loyalty, Claire Hill, Brett Mcdonnell Jan 2007

Stone V. Ritter And The Expanding Duty Of Loyalty, Claire Hill, Brett Mcdonnell

Articles

After the latest Disney decision, good faith seemed poised to take on a new and prominent role, either as an independent duty or as a component of one of the traditional fiduciary duties, loyalty or care. In the next case to arise, Stone v. Ritter, the Delaware Supreme Court quite specifically characterized the duty of good faith as part of the duty of loyalty. The Court also characterized Caremark, until then a paradigmatic duty of care case, as a duty of loyalty case. In our view, the court in Stone v. Ritter got it right, and indeed, should have gone ...


Anti-Anti-Anti-Paternalism, Claire Hill Jan 2007

Anti-Anti-Anti-Paternalism, Claire Hill

Articles

Is government justified in being paternalistic? To some, the answer is yes - government sometimes knows better than people do what is best for them. If people are allowed unfettered free choice, they will not always be acting in their own best interests. Others, with a more libertarian bent, object that people know what is best for them and, in any event, should be able to do what they choose to do.


A Simple Statutory Solution To Minority Oppression In The Closely-Held Business, John H. Matheson, R. Kevin Maler Jan 2007

A Simple Statutory Solution To Minority Oppression In The Closely-Held Business, John H. Matheson, R. Kevin Maler

Articles

Disputes involving closely held businesses come in primarily two varieties. When, as is often the case, the business fails, creditors bring lawsuits seeking to pierce the corporate veil in an attempt to reach the assets of the business owners. 3 When the business does well, on the other hand, minority owners often accuse those in control of seeking ways to keep a bigger slice of the profit pie and of squeezing or freezing out minority owners. 4 These latter disputes are often categorized under the rubric of minority shareholder oppression; and attempts to deal with them by statute and judicial ...


The Goldilocks Hypothesis: Balancing Intellectual Property Rights At The Boundary Of The Firm, Dan L. Burk, Brett Mcdonnell Jan 2007

The Goldilocks Hypothesis: Balancing Intellectual Property Rights At The Boundary Of The Firm, Dan L. Burk, Brett Mcdonnell

Articles

Recent scholarship has begun to assess the role of intellectual property rights in the theory of the Coasean firm. Some of this scholarship has looked at the effects of intellectual property on decisions to "make or buy" inputs to production. Other scholarship has looked at the effects of intellectual property on allocation of resources between employees and the firm. In this paper, we integrate these two lines of scholarship, positing a "Goldilocks hypothesis" for the proper disposition of intellectual property rights. We argue that to properly allocate resources within the firm, property rights must be calibrated so as to avoid ...


Patents, Tax Shelters, And The Firm, Dan L. Burk, Brett Mcdonnell Jan 2007

Patents, Tax Shelters, And The Firm, Dan L. Burk, Brett Mcdonnell

Articles

Since the landmark State Street decision of the United States Court of Appeals for the Federal Circuit, patentable subject matter has encompassed business methods, including tax investment strategies. Patents provide approximately twenty years of exclusive rights in the claimed method, in return for public disclosure in a published patent. Typically, the efficacy of specialized investment strategies will be diminished as they become generally known and so widely practiced; for this reason, many tax investment methods have been implemented under confidentiality agreements in order to prevent them from becoming widely practiced. However, patenting of such strategies may allow them to be ...


Authorship, Audiences, And Anonymous Speech, Lyrissa Barnett Lidsky, Thomas F. Cotter Jan 2007

Authorship, Audiences, And Anonymous Speech, Lyrissa Barnett Lidsky, Thomas F. Cotter

Articles

A series of United States Supreme Court decisions establishes that the First Amendment provides a qualified right to speak and publish anonymously, or under a pseudonym. But the Court has never clearly defined the scope of this right. As a result, lower courts have been left with little guidance when it comes to dealing both with the Internet-fueled growth of torts and crimes committed by anonymous speakers, and with the increasing number of lawsuits aimed at silencing legitimate anonymous speech. In this Article, we provide both positive and normative foundations for a comprehensive approach to anonymous speech. We first draw ...


Misuse, Thomas F. Cotter Jan 2007

Misuse, Thomas F. Cotter

Articles

The misuse defense in copyright and patent law is something of an anomaly. Under the approach favored by many courts that have considered the defense, misuse is defined as the broadening of one's copyright or patent with anticompetitive effect. When a defendant in a copyright or patent infringement suit succeeds in proving that the plaintiff has misused its copyright or patent, the court typically enters judgment that the copyright or patent is unenforceable until the misuse is purged. There is no necessary requirement that the copyright or patent defendant itself has been a victim of the misuse (the "standing ...


Sticky Defaults And Altering Rules In Corporate Law, Brett Mcdonnell Jan 2007

Sticky Defaults And Altering Rules In Corporate Law, Brett Mcdonnell

Articles

Corporate law scholarship has long debated the extent to which corporate law rules are default or mandatory. It has paid less attention to corporate law's "altering rules," which prescribe what a corporation must do for its attempt at opting out of a given default rule to be recognized as legally valid. Altering rules may be more or less sticky, that is, they may make it easier or harder to opt out of a given default rule. They also help allocate authority among corporate constituency groups. Descriptively, a focus on altering rules provides a more detailed and nuanced understanding of ...


Extraordinary Rendition And The Humanitarian Law Of War And Occupation, David Weissbrodt, Amy Bergquist Jan 2007

Extraordinary Rendition And The Humanitarian Law Of War And Occupation, David Weissbrodt, Amy Bergquist

Articles

The Geneva Conventions of 1949 were drafted in the wake of the Second World War to protect combatants and civilians during times of war and occupation. Half a century later, nearly every country has ratified the conventions; many provisions are recognized as customary international humanitarian law. Since September 11, 2001, there has been a heated debate over whether these laws of war apply to the conflicts with al Qaeda. Yet little attention has been devoted to the humanitarian law of occupation as it applies to the conflicts in Afghanistan and Iraq. This Article examines the practice of extraordinary rendition - abduction ...


Methods Of The "War On Terror", David Weissbrodt, Amy Bergquist Jan 2007

Methods Of The "War On Terror", David Weissbrodt, Amy Bergquist

Articles

Many speakers in this Symposium have focused principally on "jus ad bellum," or the international law regulating the decision to resort to armed force. This Article concerns principally "jus in bello," that is, international humanitarian law or the limits on the methods of war. First, we will provide a brief discussion of the factual and legal setting of extraordinary rendition. Second, we will consider whether and how humanitarian law applies to the war on terror and related conflicts. Third, we will demonstrate how the prohibition of transferring civilians under Article 49 of the Fourth Geneva Convention applies to extraordinary rendition ...


Real Estate Practice In The Twenty-First Century, Ann Burkhart Jan 2007

Real Estate Practice In The Twenty-First Century, Ann Burkhart

Articles

The next century will bring profound changes in real estate law and in the ways that it is practiced. This prediction may seem rather unremarkable for any area of law or for almost any other area of human endeavor. But the changes in real estate law will be exceptional because of their relative rapidity and comprehensiveness.


Crime, Criminal Justice, And Criminology In The Netherlands, Michael Tonry, Catrien Bijleveld Jan 2007

Crime, Criminal Justice, And Criminology In The Netherlands, Michael Tonry, Catrien Bijleveld

Articles

No abstract provided.


The Region And Taxation: School Finance, Cities, And The Hope For Regional Reform, Myron Orfield Jan 2007

The Region And Taxation: School Finance, Cities, And The Hope For Regional Reform, Myron Orfield

Articles

No abstract provided.


Recent Skirmishes In The Battle Over Corporate Voting And Governance, Brett Mcdonnell Jan 2007

Recent Skirmishes In The Battle Over Corporate Voting And Governance, Brett Mcdonnell

Articles

This paper considers how some recent developments affect our understanding of the relative superiority of our mixed federal system of corporate lawmaking as compared with either a purely state system or a purely national one. The mixed federal system can potentially capture the gains of efficiency, flexibility, and responsiveness from state competition, while using the threat, and occasional reality, of federal intervention to reduce the tendency to managerialism of Delaware. The paper argues that on the whole this story fits the reaction to the corporate scandals of the nineties. The Sarbanes-Oxley Act moved regulation in a less managerialist direction, and ...


A Burkean Perspective On Patent Eligibility, Thomas F. Cotter Jan 2007

A Burkean Perspective On Patent Eligibility, Thomas F. Cotter

Articles

Developments in patent law over the past generation, as exemplified by the Patent Board of Appeals and Interferences' recent decision in Ex parte Lundgren, have all but done away with several venerable principles relating to patent eligibility - among them rules that all patentable inventions must pertain to the technological arts, that they may not read on mental steps, and that patentable processes must effect a physical transformation - in favor of an approach that asks only whether an invention has practical utility and is predictable in its effects. As a result, patentable subject matter now includes both the technological and the ...


Coloring Outside The Lines: Examining Treasury's (Lack Of) Compliance With Administrative Procedure Act Rulemaking Requirements, Kristin Hickman Jan 2007

Coloring Outside The Lines: Examining Treasury's (Lack Of) Compliance With Administrative Procedure Act Rulemaking Requirements, Kristin Hickman

Articles

The Treasury Department and the Internal Revenue Service have a strange relationship with Administrative Procedure Act notice-and-comment rulemaking procedures. Treasury acknowledges the general applicability of APA procedural requirements when it promulgates regulations interpreting the Internal Revenue Code. Treasury also maintains that most Treasury regulations are exempt from the APA's public notice and comment requirements. Nevertheless, Treasury purports to utilize those same procedures anyway in promulgating most Treasury regulations. This Article documents a study of 232 separate Treasury regulation projects for which Treasury published Treasury Decisions and notices of proposed rulemaking in the Federal Register between January 1, 2003, and ...


Domestic Agreements, Brian H. Bix Jan 2007

Domestic Agreements, Brian H. Bix

Articles

In this Article I want to explore the treatment of certain domestic agreements in family law and to see what can be learned about law and families. It is a clich6, in discussions of family law and agreements, to point to Sir Henry Maine's famous quotation that society has moved "from Status to Contract."' I will not disappoint expectations here. The Maine quotation is usually offered ironically-and perhaps defiantly-in family law articles, as this is one area where status has stoutly, and largely successfully, resisted being overtaken by contract.