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2008

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Institution
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Articles 1 - 30 of 182

Full-Text Articles in Law

Enforcing Dividend Withholding On Derivatives, Reuven S. Avi-Yonah Nov 2008

Enforcing Dividend Withholding On Derivatives, Reuven S. Avi-Yonah

Articles

The United States imposes a 30 percent withholding tax on dividends paid to nonresident aliens. However, this tax is rarely paid by portfolio investors because they can swap into U.S. securities, receiving payments to match both capital gain and dividends. Treasury has ruled that swap payments have an origin in the taxpayer’s residence so there is no withholding obligation on payments that match dividends. The proposal would impose withholding tax on dividend equivalents on the ground that there is no policy justification for a distinction between dividends, substitute dividends under securities lending transaction (which are treated as dividends ...


The Professional Ethics Of Billing And Collections, Mark A. Hall, Carl E. Schneider Oct 2008

The Professional Ethics Of Billing And Collections, Mark A. Hall, Carl E. Schneider

Articles

Medicine is a Profession on which physicians rely for their livelihood and patients for their lives. If physicians do not charge for services, they cannot survive. If patients cannot afford those services, they cannot survive. No wonder many physicians have long agreed that fees are “one of the most difficult problems . . . between patient and physician.” For years comprehensive insurance subdued this problem, but currently widespread underinsurance and consumer-directed health care are reviving it. Even as the ranks of the uninsured continue to increase,the latest hope for controlling medical costs requires insured patients to pay for much more care out-of ...


Will The Tax Man Cometh To Coach Rodriguez?, Douglas A. Kahn, Jeffrey H. Kahn Aug 2008

Will The Tax Man Cometh To Coach Rodriguez?, Douglas A. Kahn, Jeffrey H. Kahn

Articles

There has been much in the news recently about coaches of major college sports teams moving to a new school and incurring an obligation to make payment to their old school under a buyout provision in their contract. The most recent example is the highly publicized move of Richard Rodriguez from West Virginia University to the University of Michigan. Coach Rodriguez had a contract with his former employer that required him to pay $4 million dollars to West Virginia if he left for another coaching position. After a suit was filed, it was reported that the parties agreed that the ...


Jesting Pilate, Carl E. Schneider Jul 2008

Jesting Pilate, Carl E. Schneider

Articles

I have two goals this month. First, to examine a case that's in the news. Second, to counsel skepticism in reading news accounts of cases. Recently, I was talking with an admirable scholar. He said that transplant surgeons sometimes kill potential donors to obtain their organs efficiently. He added, "This isn't just an urban legend - there's a real case in California." A little research turned up California v. Roozrokh. A little Googling found stories from several reputable news sources. Their headlines indeed intimated that a transplant surgeon had tried to kill a patient to get transplantable organs ...


The Mediator As Fugu Chef: Preserving Protections Without Poisoning The Process, Maureen Laflin Jul 2008

The Mediator As Fugu Chef: Preserving Protections Without Poisoning The Process, Maureen Laflin

Articles

No abstract provided.


A Coordinated Withholding Tax On Deductibility Payments, Reuven S. Avi-Yonah Jun 2008

A Coordinated Withholding Tax On Deductibility Payments, Reuven S. Avi-Yonah

Articles

Prof. Avi-Yonah proposes a 35 percent withholding tax on deductible payments made to a non-U.S. resident, in coordination with other OECD members. The tax is aimed at U.S. residents posing as foreign investors and would be refundable when the beneficial owner shows that the payments have been reported to tax authorities in the owner’s country of residence.


Teaching Ip From An Entrepreneurial Counseling And Transactional Perspective, Sean M. O'Connor Apr 2008

Teaching Ip From An Entrepreneurial Counseling And Transactional Perspective, Sean M. O'Connor

Articles

The traditional law school appellate case method is not well-suited to teaching students either the substance and process of counseling entrepreneurial clients or helping such clients create IP strategies that effectively advance their business vision. This Article describes the author’s creation of new courses and clinics to advance teaching IP in the emerging field of entrepreneurship and innovation law


Jurisdictions And Causes Of Action: Commercial Considerations In Dealing With Bullying, Stress And Harassment Cases-Part Ii, Niall Neligan Mar 2008

Jurisdictions And Causes Of Action: Commercial Considerations In Dealing With Bullying, Stress And Harassment Cases-Part Ii, Niall Neligan

Articles

In the concluding part of this two part article, the author will
examine how the courts have developed rules for dealing with
tortious claims for psychiatric injuries arising out of bullying, stress
and harassment cases. The article will examine whether it is
desirable to consolidate and codify employment rights law in order
to provide clarity to prospective litigants. Finally, the author will
argue that if codification is required, then this will necessitate a
change in the nature of present jurisdictions for bringing claims
involving bullying, stress and harassment in the workplace.


Condemnation Without Justification, Douglas A. Kahn Jan 2008

Condemnation Without Justification, Douglas A. Kahn

Articles

On August 6-8, 2007, Prof. Neil Buchanan posted in Michael Dorf’s blog (http://michaeldorf.org/; for the blog entry regarding the death tax, see http:// michaeldorf.org/2007/08/dishonest-tax-rhetoric-part-3- of-3.html) a three-part series on what he deemed to be examples of political use of terminology to describe tax issues in a manner that is likely to mislead the public. Prof. Buchanan described this practice as ‘‘dishonest tax rhetoric.’’ He awarded first, second, and third prizes for the most egregious examples of dishonest rhetoric. I, however, found no objection to the usages he considered to be the two ...


Employee Primacy, Or Economics Meets Civic Republicanism At Work, Brett Mcdonnell Jan 2008

Employee Primacy, Or Economics Meets Civic Republicanism At Work, Brett Mcdonnell

Articles

This paper argues for employee primacy in corporate governance. "Employee primacy" has two elements: ultimate employee control over the corporation, and an objective function of maximizing employee welfare. In methodology, the argument draws upon both economics, but understood more broadly than in most corporate law scholarship, and upon civic republican ideas. The paper presents four different arguments favoring employee primacy. (1) Employee primacy is likely to create the most surplus within the corporation due to incentive effects and the wealth of information that employees possess. (2) Corporations characterized by employee primacy are more likely to be socially responsible, and hence ...


A Slower Form Of Death: Implications Of Roper V. Simmons For Juveniles Sentenced To Life Without Parole, Barry C. Feld Jan 2008

A Slower Form Of Death: Implications Of Roper V. Simmons For Juveniles Sentenced To Life Without Parole, Barry C. Feld

Articles

The Supreme Court in Roper v. Simmons 1 interpreted the Eighth Amendment to prohibit states from executing offenders for crimes they committed when younger than eighteen years of age. The Court relied on objective indicators of "evolving standards of decency," such as state statutes and jury decisions to support its judgment that a national consensus existed against executing adolescents. The Justices also conducted an independent proportionality analysis of youths' criminal responsibility and concluded that their reduced culpability warranted a categorical prohibition of execution. Juveniles' immature judgment, susceptibility to negative peer influences, and transitory personality development diminished their criminal responsibility. Because ...


Combating The Color-Coded Confinement Of Kids: An Equal Protection Remedy, Perry L. Moriearty Jan 2008

Combating The Color-Coded Confinement Of Kids: An Equal Protection Remedy, Perry L. Moriearty

Articles

This Article considers the viability of a constitutional challenge to the disproportionate confinement of juveniles of color – a phenomenon known as “disproportionate minority contact” or “DMC.” Specifically, I ask whether, in the wake of McCleskey v. Kemp and its progeny, it is possible bring an Equal Protection claim based on statistical evidence that juveniles of color are significantly more likely to be detained by juvenile court judges than similarly-situated white youth. I argue that the nature of the juvenile detention decision places it squarely within the contours of the types of administrative decisions for which the Supreme Court has historically ...


Learning The Law By Avoiding It In The Process: And Learning From The Students What They Don't Get In Law School, Charles A. Cox Sr., Maury S. Landsman Jan 2008

Learning The Law By Avoiding It In The Process: And Learning From The Students What They Don't Get In Law School, Charles A. Cox Sr., Maury S. Landsman

Articles

And it was.' But it is also a seminar that is in its seventh year at the University of Minnesota Law School. It has been oversubscribed by as much as 300 per- cent. Students have described the course as "A must," "A course I will remember long afterIhaveforgottenmostofthesubstantivecourses,"and "Temendouslyhelpful,itshouldbe required." A student headed for Wall Street and no shrinking violet when finding problems with the course, said "Exposure to this kind of thinking moved me two years ahead as a lawyer."


Within The Grasp Of The Cat's Paw: Delineating The Scope Of Subordinate Bias Liability Under Federal Anti-Discrimination Statutes, Stephen F. Befort, Alison Olig Jan 2008

Within The Grasp Of The Cat's Paw: Delineating The Scope Of Subordinate Bias Liability Under Federal Anti-Discrimination Statutes, Stephen F. Befort, Alison Olig

Articles

Federal antidiscrimination statutes generally ban adverse employment actions taken because of certain specified traits or characteristics. Under the Civil Rights Act of 1964, Title VII, for example, an employer is prohibited from discriminating "because of" an individual's "race, color, religion, sex, or national origin." 1 The Age Discrimination in Employment Act of 1967 (ADEA) uses similar language in banning discrimination "against any individual ... because of such individual's age." 2 And, while the antidiscrimination formula utilized by the Americans with Disabilities Act of 1990 (ADA) is more complicated than either Title VII or the ADEA, it too prohibits discrimination ...


The Malign Effects Of Drug And Crime Control Policies On Black Americans, Michael Tonry, Matthew Melewski Jan 2008

The Malign Effects Of Drug And Crime Control Policies On Black Americans, Michael Tonry, Matthew Melewski

Articles

No abstract provided.


Across Curricular Boundaries: Searching For A Confluence Between Marital Agreements And Indian Land Transactions, Judith T. Younger Jan 2008

Across Curricular Boundaries: Searching For A Confluence Between Marital Agreements And Indian Land Transactions, Judith T. Younger

Articles

No abstract provided.


The Frontier Of Eminent Domain, Alexandra Klass Jan 2008

The Frontier Of Eminent Domain, Alexandra Klass

Articles

The Supreme Court's 2005 decision in Kelo v. City of New London brought the issues of takings and public use into the national spotlight. A groundswell of opposition to government-initiated 'economic development takings' the Court deemed a public use under the Fifth Amendment led to eminent domain reform legislation in over 30 states. Many people are surprised to learn, however, that another type of economic development taking is alive and well in many western states that are rich in natural resources. In those states, oil, gas, and mining companies have the power of eminent domain under state constitutions or ...


Carbon Sequestration And Sustainability, Alexandra B. Klass, Sara E. Bergan Jan 2008

Carbon Sequestration And Sustainability, Alexandra B. Klass, Sara E. Bergan

Articles

This Symposium Essay explores the question of whether the developing technology of geologic carbon capture and sequestration (CCS), which involves capturing CO2 emissions from industrial sources and power plants and sequestering them underground, is consisting with principles of sustainable development. This Essay concludes that while CCS on its own may not be consistent with basic principles of sustainability, it presents a potential opportunity to create sufficiently deep cuts in greenhouse gas (GHG) emissions to allow the transition to a more sustainable future.


The Myth Of Discovery, Claire Hill Jan 2008

The Myth Of Discovery, Claire Hill

Articles

This review essay of Barry Schwartz’s Paradox of Choice discusses how Schwartz’s thesis that more choice is not always better should inform economists’ increasing acknowledgment that preferences are constructed, not fixed. In this companion piece to my more detailed consideration of the subject of constructed preferences, I argue that what makes the assumption of fixed preferences possible is a myth, the myth of discovery - that preferences exist to be discovered. Once we acknowledge that preferences are as much made as found, and that the raw materials from which they are made are scarcely stable, the assumption of fixed ...


State Innovation And Preemption: Lessons From State Climate Change Efforts, Alexandra B. Klass Jan 2008

State Innovation And Preemption: Lessons From State Climate Change Efforts, Alexandra B. Klass

Articles

In cases involving both express and implied preemption, the Supreme Court and lower courts have applied a "presumption against preemption" to preserve state law in areas of "traditional state concern." In the decades since Congress first enacted major health, safety, and environmental legislation, federal agencies in the public health and environmental areas have created massive federal regulatory programs to fulfill Congressional directives. As a result of these agency developments, courts and scholars are forced to consider not only the original Congressional language relevant to preemption, but also subsequent actions taken by federal agencies to implement Congressional mandates to determine whether ...


Fighting Women: The Military, Sex, And Extrajudicial Constitutional Change, Jill Elaine Hasday Jan 2008

Fighting Women: The Military, Sex, And Extrajudicial Constitutional Change, Jill Elaine Hasday

Articles

The Supreme Court in Rostker v. Goldberg (1981) upheld male-only military registration, and endorsed male-only conscription and combat positions. Few cases have challenged restrictions on women's military service since Rostker, and none have reached the Supreme Court. Federal statutes continue to exclude women from military registration and draft eligibility, and military regulations still ban women from some combat positions. Yet many aspects of women's legal status in the military have changed in striking respects over the past quarter century while academic attention has focused elsewhere. Congress has eliminated statutory combat exclusions, the military has opened many combat positions ...


Negative Dimensions Of Identity: A Research Agenda For Law And Public Policy, Avner Ben-Ner, Claire Hill Jan 2008

Negative Dimensions Of Identity: A Research Agenda For Law And Public Policy, Avner Ben-Ner, Claire Hill

Articles

Legal scholarship has long concerned itself with race, gender, and other core identities. Economics, and law and economics, is now turning its attention to other dimensions of identity. What is identity? Identity is "a person's sense of self."' Identity has genetic, cultural and neural bases grounded in an evolutionary process.' Identity helps individuals make sense of themselves and provides a feeling of grounding or belonging. There are many potential identity dimensions, including gender, facial features, and height, as well as religion, ethnicity, social-group affiliation, sports-team loyalty, family, profession, artistic preferences, culinary preferences, and place of origin. The significance of ...


Climate Change And Carbon Sequestration: Assessing A Liability Regime For The Long-Term Storage Of Carbon Dioxide, Alexandra B. Klass, Elizabeth J. Wilson Jan 2008

Climate Change And Carbon Sequestration: Assessing A Liability Regime For The Long-Term Storage Of Carbon Dioxide, Alexandra B. Klass, Elizabeth J. Wilson

Articles

As the world struggles with how to address climate change, one of the most significant questions is how to reduce increasing levels of carbon dioxide in the atmosphere. One promising technology is "carbon capture and sequestration" (CCS) which consists of capturing carbon dioxide (CO2) emissions from power plants and industrial sources and sequestering them in deep geologic formations for long periods of time. Areas for potential CO2 sequestration include oil and gas fields, saline aquifers, and coal seams. As Congress and the private sector begin to spend billions of dollars to research and deploy this technology, there has been insufficient ...


Horizontal Federalism, Allan Erbsen Jan 2008

Horizontal Federalism, Allan Erbsen

Articles

This Article constructs frameworks for analyzing federalism's undertheorized horizontal dimension. Discussions of federalism generally focus on the hierarchical (or vertical) allocation of power between the national and state governments while overlooking the horizontal allocation of power among coequal states. Models of federal-state relations tend to treat the fifty states as a single aggregate unit, obscuring the fact that individual states often cannot concurrently exercise their powers without infringing the other states' autonomy, frustrating the others' legitimate interests, or burdening the others' citizens. Preserving interstate harmony and protecting citizens from excessive burdens therefore requires limits on how states may wield ...


Terror Conflated?, Fionnuala Ní Aoláin Jan 2008

Terror Conflated?, Fionnuala Ní Aoláin

Articles

This review of Eric Posner & Adrian Vermeule's book Terror in the Balance Security, Liberty and the Courts is constructed in part as a response not only to this scholarly work but also to recent executive and policy directions which suggest that substantial deference should be given to the executive in times of crisis, that courts should defer competence and that any harms inflicted upon civil liberties by executive action are overstated by interests with little competence in the core arena of security.


The Rationality Of Preference Construction (And The Irrationality Of Rational Choice), Claire Hill Jan 2008

The Rationality Of Preference Construction (And The Irrationality Of Rational Choice), Claire Hill

Articles

Economists typically assume that preferences are fixed - that people know what they like and how much they like it relative to all other things, and that this rank-ordering is stable over time. But this assumption has never been accepted by any other discipline. Economists are increasingly having difficulty arguing that the assumption is true enough to generate useful predictions and explanations. Indeed, law and economics scholars increasingly acknowledge that preferences are constructed, and that the law itself can help construct preferences. Still, fixed preferences are often treated as a normative ideal: Even if people don't have fixed preferences, they ...


Commentary: The Trajectory Of Complex Business Contracting In Latin America, Claire Hill Jan 2008

Commentary: The Trajectory Of Complex Business Contracting In Latin America, Claire Hill

Articles

By some accounts, Latin American contract documentation increas- ingly resembles U.S. contract documentation.1 This is puzzling, given that the U.S. documentation has developed in a broader institutional context particular to the U.S. The context includes a particular type of legal train- ing, particular types of law firms, particular legal institutions, and so on. Why is this occurring, and what effect will it have on contracting practice in Latin America? This commentary briefly considers these issues; it con- siders as well some broader implications of international convergence in contracting practices.


A Problem Of Remedy: Responding To Treasury's (Lack Of) Compliance With Administrative Procedure Act Rulemaking Requirements, Kristin Hickman Jan 2008

A Problem Of Remedy: Responding To Treasury's (Lack Of) Compliance With Administrative Procedure Act Rulemaking Requirements, Kristin Hickman

Articles

In earlier work, I found that more than 40% of Treasury regulations studied are susceptible to legal challenge for their failure to satisfy Administrative Procedure Act rulemaking requirements. Given this finding, why is it that taxpayers rarely raise such claims? The article explores this question and focuses particularly on statutory and doctrinal limitations on pre-enforcement judicial review in the tax context and their role in further limiting post-enforcement challenges. Although the article proposes ways in which the courts could relax the limitations on pre-enforcement judicial review in tax cases, the article also acknowledges that the courts are unlikely to change ...


Congressional Oversight Of National Security Activities: Improving Information Funnels, Heidi Kitrosser Jan 2008

Congressional Oversight Of National Security Activities: Improving Information Funnels, Heidi Kitrosser

Articles

This article, which was prepared for a spring 2007 conference at Cardozo Law School on "The Domestic Commander in Chief," considers constitutional and policy questions regarding congressional oversight of national security activities. The article focuses on what I call an "information funnel" approach. Such an approach involves funneling information only to discrete groups of people. For example, statutory provisions require that intelligence programs be shared with the congressional intelligence committees. Other statutory provisions permit certain narrowly defined covert actions to be reported only to the congressional leadership. The intended benefits of funneling are intuitive. Funneling plainly is directed toward balancing ...


Bylaw Reforms For Delaware's Corporation Law, Brett Mcdonnell Jan 2008

Bylaw Reforms For Delaware's Corporation Law, Brett Mcdonnell

Articles

Written as part of a symposium on the Delaware General Corporation Law in the twenty-first century, this paper suggests four reforms to the DGCL. Each of these reforms would help solidify the ability of shareholders to effectively adopt bylaws that regulate decisionmaking procedure and corporate governance. The four reforms are: 1. Amend section 109(b), and perhaps 141(a), to clarify that bylaws may set procedural and governance rules, but may not be used to make substantive business decisions; 2. Amend section 141(a) to provide that shareholder bylaw or certificate provisions which limit board discretion thereby shield the board ...