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2000

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Articles 1 - 30 of 148

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 ...


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.


The Conundrum Of Executive Compensation, Mark J. Loewenstein Jan 2000

The Conundrum Of Executive Compensation, Mark J. Loewenstein

Articles

Much of the scholarship on executive compensation that appears in law reviews assumes that large U.S. corporations overpay their chief executive officers ("CEOs"). This assumption is understandable, as many of these compensation packages are indeed stunning. The question of whether CEOs are overpaid, however, is complicated. Some scholars in other disciplines, principally in economics and management science, have studied the issue but, as this Article demonstrates, this literature does not confirm the assumption. Indeed, some studies suggest that CEO pay is competitive. Moreover, efforts to reduce the level of executive compensation may have the unintended consequence of achieving the ...


Linking Globally, Coping Locally: Cataloging Internet Resources At The University Of Colorado Law Library, Karen Selden Jan 2000

Linking Globally, Coping Locally: Cataloging Internet Resources At The University Of Colorado Law Library, Karen Selden

Articles

Web-based online public access catalogs (OPACs) enable catalogers to provide hotlinks to Internet-based resources of interest to their patrons. However, this capability is not without its challenges. Ms. Selden explores the local policy considerations associated with cataloging Internet resources and describes the policy-making process and some Internet cataloging policies used at the University of Colorado Law Library.


The United States Supreme Court And Indigenous Peoples: Still A Long Way To Go Toward A Therapeutic Role, S. James Anaya Jan 2000

The United States Supreme Court And Indigenous Peoples: Still A Long Way To Go Toward A Therapeutic Role, S. James Anaya

Articles

No abstract provided.


Limitation Of Liability, Craig Allen Jan 2000

Limitation Of Liability, Craig Allen

Articles

From the list of "problems" with the Limitation Act in the U.S. that are within the federal courts' power to resolve, I have elected to discuss three. Necessarily, the coverage of each problem will be brief. After a short summary of the Limitation Act's principal features, the essay examines the recurring confusion over the relevance of unseaworthiness in limitation actions. Second, it highlights the need to update the courts' choice of law doctrine for limitation issues. Finally, it turns to an issue that is only beginning to emerge, and one which the federal courts may yet save from ...


Catalytic Impact Of Information Technology On The New International Financial Architecture, Jane K. Winn Jan 2000

Catalytic Impact Of Information Technology On The New International Financial Architecture, Jane K. Winn

Articles

The sudden emergence of the Internet as a global network threatens to eclipse the importance of the global information infrastructure painstakingly built by financial institutions and their regulators over the past three decades. The open public nature of the Internet threatens the value of the closed proprietary networks developed by financial institutions that now face serious problems in integrating their legacy systems and new Internet systems.

Information system security, once a dreary back office matter, is now central to the success of e-commerce business plans. Before financial institutions can capitalize on their expertise in information system security, they will have ...


Electronic Records And Signatures Under The Federal E-Sign Legislation And The Ueta, Robert A. Wittie, Jane K. Winn Jan 2000

Electronic Records And Signatures Under The Federal E-Sign Legislation And The Ueta, Robert A. Wittie, Jane K. Winn

Articles

Federal legislation establishing legal parity between electronic records and signatures and their paper and ink counterparts was signed into law June 30, 2000, and became effective, at least for most purposes, on October 1. The Electronic Signatures in Global and National Commerce Act (E-SIGN or the Act) effectively sweeps away a myriad of anachronistic and inconsistent state and federal requirements for paper and ink documents and signatures. In so doing, E-SIGN eliminates many of the legal uncertainties that have surrounded the use of electronic media in commerce and should enable businesses and consumers alike to more fully realize the cost ...


Making Xml Pay: Revising Existing Electronic Payments Law To Accommodate Innovation, Jane K. Winn Jan 2000

Making Xml Pay: Revising Existing Electronic Payments Law To Accommodate Innovation, Jane K. Winn

Articles

Many businesses today are rushing to embrace "e-Business" technologies in a mad scramble to remain competitive. Only a few years ago, simply using email instead of faxes or phone calls, converting a purchasing system to EDI technology, or building a corporate Web site might have seemed like important advances in the use of new information technologies.

Businesses are now moving beyond such "electronic commerce" technologies and trying to integrate their disparate information systems and business processes into a comprehensive new "e-Business" structure. At the heart of this new model for business organization is the idea that information and resources should ...


Who Owns The Customer? The Emerging Law Of Commercial Transactions In Electronic Customer Data, Jane Kaufman Winn, James R. Wrathall Jan 2000

Who Owns The Customer? The Emerging Law Of Commercial Transactions In Electronic Customer Data, Jane Kaufman Winn, James R. Wrathall

Articles

The Information Revolution is changing the way commerce acted and value is defined within transactions. Before the Internet and "e-business" took center stage, "electronic commerce" meant electronic data interchange, just-in-time inventory systems, supply chain automation, and corporate reengineering.

But the rise of the Internet as a communications medium has coincided with a shift in management focus, from merely trying to improve the efficiency of business logistics systems to a more holistic perspective on improving customer relationships. Intangible assets such as intellectual property rights, human capital in the form of employee knowledge, and established relationships with customers and suppliers are playing ...


The Most Creative Moments In The History Of Environmental Law: "The Whats", William H. Rodgers, Jr. Jan 2000

The Most Creative Moments In The History Of Environmental Law: "The Whats", William H. Rodgers, Jr.

Articles

In preparation for this symposium piece, Professor Rodgers asked a number of his colleagues active in the field of environmental law to identify what they considered to be the most creative moments in the history of environmental law. He gave no specific instructions with his request other than providing a definition of what he considered to be a creative moment: "A legal initiative that advances environmental law with a new level of analysis, new structure, or new institutional bridge. "

This article is a compilation of the numerous responses the author received. The responses formulate a detailed and informative description of ...


The Myth Of The Win-Win: Misdiagnosis In The Business Of Reassembling Nature, William H. Rodgers, Jr. Jan 2000

The Myth Of The Win-Win: Misdiagnosis In The Business Of Reassembling Nature, William H. Rodgers, Jr.

Articles

This Article starts with a closer than customary look at the most serious obstacle to the ambitious campaign of environmental restoration that is the focus of this Symposium. That obstacle is the human brain.

The Article contends that human cognitive processes are marvelous designers of serviceable self-deceptions. In the war on nature that we witnessed in the twentieth century the most functional of these is the firm belief in a non-zero sum world. This is the conviction that gains from economic development could be enjoyed without sacrifice of the natural world.

This is a convenient, powerful, and serviceable myth although ...


Conceiving Nonmarital Fathers' Rights: An Inquiry Into The Constitutionality Of West Virginia's Adoption Statute, Lisa Kelly Jan 2000

Conceiving Nonmarital Fathers' Rights: An Inquiry Into The Constitutionality Of West Virginia's Adoption Statute, Lisa Kelly

Articles

When do the rights of nonmarital fathers to their children quicken? Is it only upon the father's establishment of a substantial economic and emotional relationship with his child? Do such fathers' interests gel only after the ink has dried on an order or affidavit in which paternity is established or acknowledged? Do there fundamental rights lie inchoate in the beating hearts of the newborn or gestating child? How should the law regard the role of the nonmarital father in the adoption context? Should there be one standard for all or two-one for fathers of infants and another for fathers ...


Financing Clinical Research And Experimental Therapies: Payment Due, But From Whom?, Patricia C. Kuszler Jan 2000

Financing Clinical Research And Experimental Therapies: Payment Due, But From Whom?, Patricia C. Kuszler

Articles

This article will explore the realm of clinical research and the question of who should finance such research. The first part will define the various types and levels of clinical research in terms of the regulatory controls and oversight applied to such research. Then the article will summarize how the costs of clinical research and experimental therapies have been covered in the past. Finally, the article will evaluate the risks and benefits derived by the various stakeholders and propose a financing rationale for therapies that places the burden of cost squarely on the stakeholders most likely to benefit.


Patent Infringement Damages In Japan And The United States: Will Increased Patent Infringement Damage Awards Revive The Japanese Economy?, Toshiko Takenaka Jan 2000

Patent Infringement Damages In Japan And The United States: Will Increased Patent Infringement Damage Awards Revive The Japanese Economy?, Toshiko Takenaka

Articles

Accordingly, this Article will look at the impact of the new Japanese legislation on patent infringement damages and will discuss whether the increase in damage awards contributes to the creation of breakthrough technology. To understand this impact, Part I will discuss pre-1998 legislation damages and highlight the difference between damages awarded by United States courts and those awarded by Japanese courts, by comparing United States and Japanese case examples. In examining the general tort and patent law theories, Part I will also try to identify the source of the difference and discuss how this difference is reflected in current United ...