Law Commons^™

U.S. Taxation Of Profits From Internet Software Sales - An Electronic Commerce Case Study, J. Clifton Fleming Jr.

Faculty Scholarship

No abstract provided.

Getting Serious About Curtailing Deferral Of Us Tax On Foreign Source Income, Robert J. Peroni, J. Clifton Fleming Jr., Stephen E. Shay

Faculty Scholarship

When a U.S. person conducts business or investment activity abroad through a foreign corporation in a country that imposes only low rates of tax, the so-called deferral privilege allows the U.S. taxpayer to defer substantial amounts of U.S. tax at the cost of only a small foreign levy. Hence, the deferral privilege operates as a tax subsidy of sorts for U.S. persons with operations in low tax foreign countries and provides a major incentive for U.S. persons to shift their business operations and investments to foreign countries that impose little or no tax on the earnings of the foreign corporations.To …

Bargaining In The Shadow Of Democracy, Susan P. Koniak, David Dana

Faculty Scholarship

The tobacco industry's gambit did not fail because Congress refused to trade its law-making authority for money. Rather, it failed, at least for the time being, because the parties could not agree on terms. Perhaps another industry (with a better public image than tobacco) will have better luck. Congress may have proved itself a difficult bargaining partner, but it has also demonstrated its willingness to negotiate. Before Congress goes any further down this path or other government entities decide they can bargain their law-making authority for money or other goods, we, as a nation, should consider the wisdom of such …

Fidelity, Basic Liberties, And The Specter Of Lochner, James E. Fleming

Faculty Scholarship

I want to begin by frankly acknowledging that the group of scholars participating in the conference is more conservative than the crowd with whom I usually travel. Accordingly, at the outset, I want to say something ingratiating. Then, I will say something provocative. Here is the ingratiating part: economic liberties and property rights, like personal liberties, are fundamental rights secured by our Constitution. In fact, economic liberties and property rights are so fundamental in our constitutional scheme, and so sacred in our constitutional culture, that there is neither need nor good argument for aggressive judicial protection of them. Rather, such …

Analisis De La Convencion De Las Naciones Unidas: Sobre Los Contratos De Compraventa Internacional De Mercaderias Y Su Trascendencia Para America Latina, Michael P. Van Alstine

Faculty Scholarship

No abstract provided.

Reforming The Unbargained Contract: Avoiding Bondholder Claims For Surprise Par Calls, Robert S. Blanc, Randy D. Gordon

Faculty Scholarship

Until the last couple of decades, interest rates remained relatively stable, thus providing little incentive for corporate borrowers to seek novel ways of redeeming purportedly non-callable bonds at par. But with the advent of junk bonds and periods of great interest rate volatility, issuers have been provided with powerful incentives to explore the relatively uncharted waters of par calls. This Article examines the authority for and legality of such par calls and ultimately proposes a redefinition of the issuer-bondholder relationship. This redefinition accounts for the realities of the marketplace and should lead a return to more settled expectations in both …

Regulating Through Information: Disclosure Laws And American Health Care, William M. Sage

Faculty Scholarship

Efforts to reform the American health care system through direct government action have failed repeatedly. Nonetheless, an alternative strategy has emerged from these experiences: requiring insurance organizations and health care providers to disclose information to the public. In this Article, Professor Sage assesses the justifications for this type of regulation and its prospects. In particular, he identifies and analyzes four distinct rationales for disclosure. He finds that the most commonly articulated goal of mandatory disclosure laws-improving the efficiency of private purchasing decisions by giving purchasers complete information about price and quality- is the most complicated operationally. The other justifications-which he …

Regulatory Takings And Original Intent: The Direct, Physical Takings Thesis Goes Too Far, Andrew S. Gold

Faculty Scholarship

No abstract provided.

Survey Of Florida Law: Real Property, Ronald B. Brown

Faculty Scholarship

No abstract provided.

Protecting Digital Works: Copyright Or Contract, Glynn Lunney

Faculty Scholarship

Since at least 1586, proponents of copyright have pointed to the tremendous ease with which competitors can copy works of authorship as the central justification for copyright protection. Because such works can be easily copied, a competitor could, in the absence of copyright, copy a work, and thereby avoid a large part of the original author's expense. This copying would allow competitors to undercut the original author's price for the work, and would deprive the original author of a fair wage for the labor and creativity she invested in the work. Faced with the threat of such competition, many would-be …

The Legality Of The Nato Bombing Operation In The Federal Republic Of Yugoslavia, Aaron Schwabach

Faculty Scholarship

No abstract provided.

Scheherezade Meets Kafka: Two Dozen Sordid Tales Of Ideological Exclusion, Susan M. Akram

Faculty Scholarship

More than two dozen immigrants' in the United States are facing deportation² or removal ³ proceedings based primarily on evidence that the Immigration and Naturalization Service ("INS") has refused to disclose because it is "classified.", ⁴ The use of secret evidence in deportation proceedings is the most powerful tool in an apparently systematic attack by U.S. governmental agencies on the speech, association and religious activities of a very defined group of people: Muslims, Arabs, and U.S. lawful permanent residents of Arab origin residing in this country. Evidence emerging from these cases indicates that the government is spending thousands of …

Impunity- Inertia, Inaction, And Invalidity: A Literature Review, Mary Margaret Penrose

Faculty Scholarship

Impunity is the torturer's most relished tool. It is the dictator's greatest and most potent weapon. It is the victim's ultimate injury. And, it is the international community's most conspicuous failure. Impunity continues to be one of the most prevalent causes of human rights violations in the world. As we near the new millennium, we must find effective ways to combat this vexing predicament.

Impunity knows no territorial bounds and speaks no specific language. It is not unique to any religion or race, and is not limited to any particular geographical region. Impunity remains a world wide problem. The end …

Genetic Privacy: There Ought To Be A Law, George J. Annas

Faculty Scholarship

If you don't believe in privacy, you probably don't believe in genetic privacy. I believe in privacy, including the constitutional right of privacy. But my interest is not to persuade you to believe in privacy, but rather to expose the major issues involved in genetic privacy. What makes genetic information different from other sensitive medical information? Are we getting carried away? Are we just treating DNA-based information differently because it is new?

Lest We Fail: The Importance Of Enforcement In International Criminal Law, Mary Margaret Penrose

Faculty Scholarship

The title of this work embodies a concern that if the International Criminal Tribunals at Nuremberg, Tokyo and the recent additions at The Hague and Arusha are used as a gauge for deterring future violence, the international community must admit failure. This statement, however, is somewhat shortsighted in that it analyzes only one mechanism for achieving peace. The Nuremberg and Tokyo precedent provided the fertile ground for adopting two modern ad hoc International Tribunals and, potentially, an international criminal court capable of providing international redress for crimes. These advancements in a unified world community were not possible shortly after the …

Succession By Estoppel: Hong Kong's Succession To The Iccpr, Peter K. Yu

Faculty Scholarship

This Article argues that Hong Kong succeeded to the ICCPR and the reporting obligations under the Covenant. Part I of the Article traces the development of the ICCPR in Hong Kong before 1997. This development is important because the Joint Declaration provides only for the continuation of the ICCPR as applied to Hong Kong before the transition. Parts II and III examine whether Hong Kong succeeded to the ICCPR. Since the Covenant is ambiguous as to whether the contracting parties are limited to sovereign states, Part II evaluates whether Hong Kong satisfies the membership requirement as stipulated in Article 48(1) …

Sanctioning A Tyranny: The Diminishment Of Ex Parte Young, Expansion Of Hans Immunity, And Denial Of Indian Rights In Coeur D'Alene Tribe, John P. Lavelle

Faculty Scholarship

This Article analyzes a recent decision of the Supreme Court that illustrates the enormous destructive power of the Rehnquist Court's peculiar brand of anti-tribal activism, Idaho v. Coeur d'Alene Tribe. Coeur d'Alene Tribe is likely to heighten the urgency with which Eleventh Amendment scholars have called for an overruling of Hans to ameliorate the damage that Hans and its progeny already have done to the regime of federally protected rights under the Constitution, laws and treaties of the United States-a regime at the core of the Framers' vision of paramount federal law and essential to securing true liberty for all …

The Second Revolution In Informed Consent: Comparing Physicians To Each Other, Neil B. Cohen, Aaron D. Twerski

Faculty Scholarship

No abstract provided.

The Second Revolution In Informed Consent: Comparing Physicians To Each Other, Aaron Twerski, N. B. Cohen

Faculty Scholarship

No abstract provided.

When Different Means The Same: Applying A Different Standard Of Proof To White Plaintiffs Under The Mcdonnell Douglas Prima Facie Case Test, Angela Onwuachi-Willig

Faculty Scholarship

The idea that Whites, in particular white males, are the new victims of discrimination is steadily gaining acceptance among white Americans. While only 16 percent of white individuals claim to know someone who has been the victim of reverse discrimination, more than 70 percent of Whites are convinced that reverse discrimination is a rampant problem. Additionally, although reverse discrimination cases generally constitute a small percentage of filed discrimination cases, usually about 1 to 3 percent, that number is beginning to grow. In particular, the percentage of reverse discrimination claims brought by federal workers, the very workers for whom affirmative action …

Waiting For Technology: Path Dependence As A Random Walk, James Bessen

Faculty Scholarship

The role of historical accident in technology selection has been difficult to measure. This paper develops a quantifiable model for a basic and widely applicable form of path dependence: the random walk. This real options model is applied to the transition in British cotton spinning at the beginning of the century.

In contrast to neoclassical models based on simple net present value calculations, when investment is irreversible, firms may choose to wait rather than to invest in a superior new technology. The magnitude and effect of this option to wait can be calculated. British spinning firms waited significantly before adopting …

Standards Of Care And Standard Form Contracts: Distinguishing Patient Rights And Consumer Rights In Managed Care, Wendy K. Mariner

Faculty Scholarship

There is hardly a legislature in the country that is not currently debating the issue of patient rights in managed care. Not surprisingly, legislators, as well as reporters covering the debate, have called upon George J. Annas, Edward R. Utley Professor of Health Law and Chair of the Health Law Department at Boston University, for information and advice. Professor Annas has earned the title of "father of patient rights" for his decades of research, writing, and advocacy on behalf of individuals who need health care and deserve justice.

Today, however, one might ask whether patient rights are compatible with managed …

The Other Way Round, Susan P. Koniak

Faculty Scholarship

There have always been sexy subjects, and there always will be. Some topics are sexy for a time and then fade into obscurity or become quaint anachronisms; the now-omnipresent Y2K problem is sure to meet some such fate. But there are other topics, such as, the connection between identical twins, incest, extraterrestrial life, dinosaurs, the American Civil War and evil, which just stay in vogue. Topics guaranteed to draw a crowd.

I am just as likely to be in that crowd as the next person. Having spent part of this afternoon watching a History Channel presentation on the Lizzie Borden …

Privacy In Genetics Research, Barbara Fuller, Mary Jo Ellis Kahn, P. A. Barr, L. Biesecker, E. Crowley, J. Garber, M. K. Mansoura, Patricia Murphy, J. Murray, J. Phillips, Karen H. Rothenberg, Mark Rothstein, J. Stopfer, Gary Swergold, B. Weber, Francis Collins, Kathy Hudson

Faculty Scholarship

No abstract provided.

A Partnership With The Bar: A Law Library's Experience In Taking A Leadership Role In Cle Training On Legal Research, Marsha Baum

Faculty Scholarship

UNM Law Library had a very positive experience in developing and co-sponsoring a legal research CLE with the New Mexico Bar's Center for Legal Education. We offered a two-part legal research program on print and digital resources.

Engaging With The State About Domestic Violence: Continuing Dilemmas And Gender Equality, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Competing On Quality Of Care: The Need To Develop A Competition Policy For Health Care Markets, William M. Sage, Peter J. Hammer

Faculty Scholarship

As American health care moves from a professionally dominated to a marketdominated model, concerns have been voiced that competition, once unleashed, will focus on price to the detriment of quality. Although quality has been extensively analyzed in health services research, the role of quality in competition policy has not been elucidated. While economists may theorize about non-price competition, courts in antitrust cases often follow simpler models of competition based on price and output, either ignoring quality as a competitive dimension or assuming that it will occur in tandem with price competition. This unsystematic approach is inadequate for the formulation of …

Delegation And The Constitution, Gary S. Lawson

Faculty Scholarship

In 1690, John Locke wrote that legislators “can have no power to transfer their authority of making laws and place it in other hands.” A century later, in 1789, the federal Constitution provided that “all legislative Powers herein granted shall be vested in a Congress of the United States.” A little more than a hundred years later, in 1892, the Supreme Court declared in Field v. Clark: “That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”

In 1989, nearly …

A Note On Trend-Spotting In The Case Law, Keith N. Hylton

Faculty Scholarship

Professor Robert Hillman tells us that he "will not try to resolve whether ... we should be enthusiastic or lament the recent judicial trend to apply rules that favor written contracts." This is a refreshingly non-dogmatic approach in a field where scholars are continually asserting reasons to celebrate or lament some new judicial trend. Moreover, Professor Hillman, again admirably in my view, is not even sure such a trend exists. If there is a trend in favor of written contracts, however, he believes that it has resulted because (1) "judicial decisions applying private law reflect changes in public opinion," and …

Of Textualism, Party Autonomy, And Good Faith, Michael P. Van Alstine

Faculty Scholarship

No abstract provided.