Law Commons^™

The Wisdom Of Crowds? Groupthink And Nonprofit Governance, Melanie B. Leslie

Articles

Scandals involving nonprofit boards and conflicts of interest continue to receive considerable public attention. Earlier this year, for example, musician Wyclef Jean's Yele Haiti charity became the target of intense criticism after the charity disclosed that it had regularly transacted business with Jean and entities controlled by Jean and other directors. Although scandals caused by self-dealing undermine public confidence in the charitable sector, they continue to erupt. Why do charitable boards sanction transactions with insiders?

This Article argues that much of the blame lies with the law itself. Because fiduciary duty law is currently structured as a set of fuzzy …

Jettisoning Chevron, Linda Jellum

Articles

No abstract provided.

The Illusory Right To Abandon, Eduardo Peñalver

Articles

The unilateral and unqualified nature of the right to abandon (at least as it is usually described) appears to make it a robust example of the law's concern to safeguard the individual autonomy interests that many contemporary commentators have identified as lying at the heart of the concept of private ownership. The doctrine supposedly empowers owners of chattels freely and unilaterally to abandon them by manifesting the clear intent to do so, typically by renouncing possession of the object in a way that communicates the intent to forgo any future claim to it. A complication immediately arises, however due to …

A Search For The Truth Or Trial By Ordeal: When Prosecutors Cross-Examine Adolescents How Should Courts Respond, Frank E. Vandervort

Articles

It is an axiom of the law that cross-examination is, in John Henry Wigmore's words, the "greatest legal engine ever invented for the discovery of truth." In part because of its perceived utility in getting to the truth of a matter, courts are generally reluctant, despite broad authority to do so, to step in and to govern the conduct of cross-examination. But is cross-examination invariably calculated to ascertain the truth? While most lawyers are familiar with Wigmore's famous quotation, few are familiar with the caveat that shortly follows it: "A lawyer can do anything with cross-examination.. . . He may, …

Retribution And The Experience Of Punishment, Jonathan Masur, John Bronsteen, Christopher Buccafusco

Articles

No abstract provided.

Advocacy In The Court Of Public Opinion, Installment Two: How Far Should Corporate Attorneys Go, Michele M. Destefano

Articles

Today, legal controversies are tried in the court of public opinion as much as in any court of law. Corporate lawyers' traditional tendency, however, has been to attempt to isolate legal activities from public relations activities. Accordingly, when providing legal advice, they have viewed media considerations as separate. Historically corporate counsels' typical media strategy often consisted of no more than, "no comment." Given today's saturated media culture, this is no longer a viable strategy. Indeed, it appears that some corporate lawyers are adapting to the new media environment and attempting to help their clients manage the public relations impact of …

State Fiscal Policies And Transitory Income Fluctuations, James R. Hines Jr.

Articles

State and local expenditure and tax revenue respond less to the business cycle than do federal spending and revenue, thereby reducing the countercyclicality of total government expenditure and revenue. This paper considers forces responsible for the cyclical pattern of state expenditure and revenue. Annual fluctuations in state personal income are associated with small changes in state spending and significant changes in tax receipts; receipt of federal grants is associated with greater state spending. Tax collections, and to a lesser degree expenditure, of larger states are more closely associated with annual income fluctuations than are the tax collections and expenditure of …

Traveling Concepts: Substantive Equality On The Road, Susanne Baer

Articles

Ideas travel. Even legal concepts migrate on the globe. However, it is a contested issue whether migration is a good idea. We may enjoy traveling ourselves, but many people in the world of law are somewhat worried if we take legal baggage along. Some claim that legal baggage never arrives at its destination and challenge the very possibility of what some call a legal transplant. Others claim that we already live in transnational legal contexts, while still others claim that migration occurs, and that modifies each legal concept on the road in rather significant ways, which may render the project …

The Deepwater Horizon Oil Spill: Potential Insurance Coverage Implications, Lynn K. Neuner, W. Nicholson Price

Articles

More than 300 lawsuits have already been filed in Louisiana, Florida, Texas, Mississippi, and Alabama against BP and other corporations involved in the Deepwater Horizon oil spill, including Transocean, Halliburton, and Cameron, with thousands more anticipated. This article briefly addresses the contours of the coverage lawsuit already filed against BP and other coverage disputes we may see in the future.

The Redemption Puzzle, Reuven S. Avi-Yonah

Articles

After the adoption of partial integration in 2003, there has been only a modest rise in dividends, but a sixfold increase in redemptions. This article argues that the explanation for that lies in the different treatment of dividends and capital gains to foreign shareholders and that Congress should respond by making sections 302 and 304 inapplicable to foreign shareholders.

Welfare As Happiness, Jonathan Masur, John Bronsteen, Christopher Buccafusco

Articles

No abstract provided.

Procedural Barriers To Civil Rights Litigation And The Illusory Promise Of Equity, Alexander A. Reinert

Articles

No abstract provided.

The Hydra, Carl E. Schneider

Articles

Almost nobody favors long consent forms for prospective research subjects. Almost everybody thinks they interfere with informed consent's purpose-good decisions. Nevertheless, almost everybody believes consent forms have long been getting longer. Years ago, Paul Appelbaum lamented the "tendency to cram ever more information into consent forms." Weeks ago, Ilene Albala and her colleagues (one of them Appelbaum) reported in IRE: Ethics & Human Research that the length of one institutional review board's forms "increased roughly linearly by an average of 1.5 pages per decade. In the 1970s, the average consent form was less than one page long and often only …

Judicial Review, A Comparative Perspective: Israel, Canada, And The United States, Richard A. Posner

Articles

No abstract provided.

The Inevitability Of Theory, Richard O. Lempert

Articles

I wrote this Article in response to an invitation to deliver the keynote address at Berkeley Law School’s Jurisprudence and Social Policy conference Building Theory Through Empirical Legal Studies. Lauren Edelman, the intellectual mother of the conference, gently brushed aside my suggestion that I present one of my own attempts to synthesize the results of empirical research to generate theory, and asked that I directly address the conference topic. I am glad that she did.

Aba Criminal Justice Standards On The Treatment Of Prisoners, Margo Schlanger, Margaret C. Love, Carl Reynolds

Articles

or more than i O years, corrections professionals and others concerned about the treatment of prisoners have despaired over conditions in California's prisons. Crowding, violence, racial segregation, abysmal medical care, an obstructionist corrections union. and a state budget crisis have combined to bring the system to the point of constitutional meltdov,n. In 2008. a state appellate court found conditions of "'extreme peril to the safety of persons and property,'' and a three-judge federal court confirmed the existence of a "substantial risk to the health and safety of the men and women who work inside these prisons and the inmates housed …

The Case Against Taxing Citizens, Reuven S. Avi-Yonah

Articles

The bipartisan tax reform bill recently introduced by Sens. Ron Wyden, D-Ore., and Judd Gregg, R-N.H., proposes to abolish IRC section 911. That section, which exempts U.S. citizens living overseas from tax on the first $80,000 of earned income, is indeed anomalous in the context of a tax on all income "from whatever source derived," and has been subjected to criticism. However, there is a reason section 911 has been in the code since the 1920s: In its absence, citizenship-based taxation becomes completely unadministrable. Rather than continuing the long argument over section 911, Congress should therefore reexamine the basic premise: …

The Institutional Dynamics Of Transition Relief, Jonathan Masur, Jonathan Remy Nash

Articles

Whether and how to provide transition relief from a change in legal regime is a question of critical importance. Legislatures and agencies effect changes to the law constantly, and affected private actors often seek relief from those changes, at least in the short term. Scholarship on transition relief therefore has focused almost entirely on examining when transition relief might be justified and now recognizes that there may be settings where relief from legal transitions is appropriate. Yet largely absent from these treatments is an answer to the question of which institutional actor is best positioned to decide when legal transition …

The Authority For Federalism: Madison's Negative And The Origins Of Federal Ideology, Alison Lacroix

Articles

No abstract provided.

Adr In Labor And Employment Law During The Past Quarter Century, Theodore J. St. Antoine

Articles

Two events can serve as bookends for alternative dispute resolution (ADR) in labor and employment law during the past quarter century. The first was the 1991 U.S. Supreme Court decision in Gilmer v. Interstate/Johnson Lane Corp. The Court approved so-called "mandatory arbitration" by holding that an individual stockbroker was bound by a contract with the New York Stock Exchange to arbitrate a claim of age discrimination against his employer, rather than take the case to court. The second event, or set of events, is the current consideration by Congress of the proposed Employee Free Choice Act (EFCA) and Arbitration Fairness …

Citizenship Perception Strain In Cases Of Crime And War: On Law And Intuition, Mary De Ming Fan

Articles

The jurisprudence on crime and war has repeatedly indicated that citizenship matters in determining the scope and applicability of constitutional protections. Just how citizenship matters and what vision of the citizen controls have been murky, however. A rich literature has developed deploring how the nation and the jurisprudence have appeared to slip beneath the baseline of protections when faced with formal citizens who challenge our popular notions about what citizens look like, feel like, and do. What warrants further examination is why this may be so. Understanding the processes that may blur the doctrine and lead to slippage in citizenship …

Xilinx Revisited, Reuven S. Avi-Yonah

Articles

On March 22 the Ninth Circuit released its new opinion in Xilinx v. Commissioner, Doc 2010-6163, 2010 WTD 55-42. 1 As has been expected since the panel withdrew its original opinion, it reversed itself and in a 2-1 opinion held for the taxpayer. The opinion makes it pretty clear why the reversal occurred. It was the result of concentrated pressure by the international tax community and the fact that the government was unwilling to defend the theory on which the panel originally decided the case: that the arm’s-length standard of the section 482 regulations does not apply to cost sharing. …

Dissecting O'Donnabhain, Anthony C. Infanti

Articles

In O'Donnabhain v. Commissioner, a sharply divided Tax Court allowed a medical expense deduction for some costs related to sex reassignment surgery. This short commentary examines the opinions in the case and concludes that the taxpayer's victory rings hollow.

Measuring The Success Of Bivens Litigation And Its Consequences For The Individual Liability Model, Alexander A. Reinert

Articles

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U. S. 388 (1971), the Supreme Court held that the Federal Constitution provides a cause of action in damages for violations of the Fourth Amendment by individual federal officers. The so-called "Bivens "cause of action—initially extended to other constitutional provisions and then sharply curtailed over the past two decades—has been a subject of controversy among academics and judges since its creation. The most common criticism of Bivens—one that has been repeated in different venues for thirty years— is that the Court's individual liability model, in …

A Service-Learning Project: Disability, Access And Health Care, Elizabeth Pendo

Articles

Last summer, I was thinking about a public service project for my disability discrimination law course. I teach the course in fall, and try to incorporate a project each year. Integrating a public service project into a traditional doctrinal course fits within the trend toward expanding teaching techniques beyond the case method in order to better prepare students for the practice of law., It was also inspired in part by the Carnegie Foundation's 2007 report, "Educating Lawyers: Preparation for the Profession of Law," as a way to foster "civic professionalism," and to "[link] the interests of legal educators with the …

What Tort Theory Tells Us About Federal Preemption: The Tragic Saga Of Wyeth V. Levine, Richard A. Epstein

Articles

No abstract provided.

It Is Logic Rather Than Whom You Trust: A Rejoinder To Prof. Cohen, Douglas A. Kahn

Articles

This article is the continuation of an exchange that has taken place between Prof. Stephen B. Cohen and me concerning the validity of criticisms leveled by Chief Justice John Roberts on an opinion by then-Judge Sonia Sotomayor writing for the Second Circuit in the case of William L. Rudkin Testamentary Trust v. Commissioner. While affirming the Second Circuit’s decision, Chief Justice Roberts, writing for a unanimous Supreme Court, criticized and rejected Justice Sotomayor’s construction of the relevant statutory provision. In an article in the August 3, 2009, issue of Tax Notes, Cohen defended Justice Sotomayor’s construction of the statute and …

Eastphalia As The Perfection Of Westphalia, Tom Ginsburg

Articles

No abstract provided.

Private Regulation And Foreign Conduct, Adam I. Muchmore

Articles

No abstract provided.

Dupes And Losers In Mail Fraud, Thomas J. Miles

Articles

No abstract provided.