Law Commons^™

The Ethical Obligation Of Transactional Lawyer To Act As Gatekeepers, Rutheford B. Campbell Jr., Eugene R. Gaetke

Law Faculty Scholarly Articles

Recent examples of managerial misconduct at major corporations have called into question the adequacy of the gatekeeper role provided by transactional lawyers representing corporations. That role is governed by Model Rule 1.13(b), which obligates the lawyer for a corporation to take remedial action if the lawyer knows that corporate managers are engaged in actions that amount to a "violation of a legal obligation" to the corporation or that are unlawful and likely to result in substantial injury to the corporation. In addition, Model Rule 1.2(d) forbids a lawyer from lending assistance to any action by corporate managers "that the lawyer …

2002 Eleventh Circuit Survey: Federal Taxation, David A. Brennen

Law Faculty Scholarly Articles

During 2002 federal courts in the United States decided nineteen cases that directly impact federal tax law in the Eleventh Circuit. These cases involve a variety of tax law matters including Federal Insurance Contributions Act ("FICA") payroll tax, estate and gift tax, IRS authority to levy and assess tax, and discharges in bankruptcy. Other tax-related matters addressed by courts in 2002 that impact tax law in the Eleventh Circuit include inventory recapture in an S-corporation conversion, attorney fees for the prevailing party in a tax dispute, and injunctions against tax preparers. By far the most important tax case decided in …

Same-Sex Union Announcements: Precis On A Not So Picayune Matter, James M. Donovan

Law Faculty Scholarly Articles

Although some newspapers have voluntarily begun to publish same-sex union announcements, others will continue in their traditional exclusionary practices. Some of those papers can anticipate being accused in court of unlawful discrimination where the law allows that cause of action. Reflexively, those newspapers will in turn erect a defensive shield from such charges by appealing, at least in part, to the First Amendment.

This comment examines the viability of that defense. The set-piece for the discussion are the details of a complaint, described in Part I, lodged against the Times-Picayune by a lesbian couple that was denied access to its …

What Gets Judges In Trouble, Richard H. Underwood

Law Faculty Scholarly Articles

I wrote this article to collect some cautionary material about “what gets judges in trouble.” I wanted something I could offer to our state judges, practitioners, and my legal ethics students. While I have never been a judge, and while I have never worked for a judicial conduct organization, I have been a law professor for almost twenty-five years and the chairman of a state bar association ethics committee for fourteen. I am not the kind of person who would refrain from holding forth just because I may not know what I am talking about.

When I started out, I …

A Solution To The Yahoo! Problem? The Ec E-Commerce Directive As A Model For International Cooperation On Internet Choice Of Law, Mark F. Kightlinger

Law Faculty Scholarly Articles

In May 2000, a French court decided that a French law banning the display of Nazi materials for sale applies to an auction website hosted by the California-based company Yahoo! Inc. The following year, at the request of Yahoo! Inc., a U.S. District Court declared that the French judgment was unenforceable in the United States because enforcing it would violate an important public policy-the First Amendment. These two cases have attracted considerable attention because they crystallize a difficult problem. The Internet is global. Every website potentially reaches every home on the planet. Thus, website content or activity that may be …

Same-Sex Union Announcements: Whether Newspapers Must Publish Them, And Why We Should Care, James M. Donovan

Law Faculty Scholarly Articles

The recent decision by the New York Times to publish same-sex union announcements brought to national attention the struggle of gay men and lesbians to gain access to this contested space. To date only about ten percent of newspapers allow same-sex couples to publish announcements on terms equal to heterosexual couples. Although some couples have sued to have their announcements published, these claims have been rejected as interfering with the newspaper's First Amendment protections. This article considers whether the First Amendment's Free Press and Free Speech clauses in fact allow newspapers to discriminate in this way.

The article begins with …

The Impact Of Modern Finance Theory In Acquisition Cases, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

In February of 1983, the Supreme Court of Delaware decided Weinberger v. UOP, Inc. The case holds that, in determining the present value of a corporation involved in an acquisition, courts are free to use “any techniques or methods [of valuation] which are generally considered acceptable in the financial community…”

The rule in Delaware prior to Weinberger required courts to determine the present value of a corporation by use of the Delaware block method of valuation exclusively. The Delaware block method, however, is a poor way to determine the present value of a corporation. As a result, even before the …

Race Conscious Affirmative Action By Tax Exempt 501(C)(3) Corporations After Grutter And Gratz, David A. Brennen

Law Faculty Scholarly Articles

The Equal Protection Clause of the Fourteenth Amendment generally acts as a legal limit on the permissible bounds of government action. Accordingly, public universities and other government entities are constitutionally prohibited from engaging in acts that violate equal protection of the laws. The Supreme Court recently reinforced this point when it ruled, in two related cases, that public universities may consider the race of applicants when making admissions decisions, so long as an applicant's race does not amount to a deciding factor when granting admission. By its very terms, the constitutional limitation imposed by the Equal Protection Clause only directly …

Quo Vadis: The Continuing Metamorphosis Of The Establishment Clause Toward Realistic Substantive Neutrality, Paul E. Salamanca

Law Faculty Scholarly Articles

For years, the rhetoric of substantive neutrality has dominated interpretation of the Establishment Clause. Under this approach, courts and commentators purport to ask whether a public policy under scrutiny is likely to affect religious choices in an unacceptable way. In fact, so broadly has this approach been taken that both separationists and accommodationists resort to it freely, although with radically differing perceptions as to when policy becomes unacceptable. Arguably, however, adherents to this approach have paid insufficient attention to religious behavior per se. Had they paid sufficient attention to this phenomenon, they would have been forced to acknowledge that little …

The Liberal Polity And Illiberalism In Religious Traditions, Paul E. Salamanca

Law Faculty Scholarly Articles

It is in the nature of religious traditions to be somewhat illiberal. Indeed, a religion that does not require its adherents to affirm at least some belief is probably a logical impossibility. Christians, for example, must believe something about the nature of Christ. Even Unitarians, who advocate tolerance of all religions, must affirm a belief in tolerance.

Recently, and largely because of the events of September 11, 2001, enhanced attention has been paid to certain potentially illiberal aspects of Islam in the United States. The journalist Daniel Pipes, for example, has written about certain Moslem Americans who, according to his …

Not So Great Moments In Trial Advocacy: Clement Vallandigham, Richard H. Underwood

Law Faculty Scholarly Articles

The subject of this comment is "The Lawyer as Hero." Being the contrarian that I am, I thought I would present the story of someone who I do not consider to have been a hero—Clement L. Vallandigham. History has not been kind to him. I am sure those of you who do remember his name think of him as a traitor and a rascal—a loathsome individual. But to some, and for a time, he was a hero and a champion in court. This just goes to show that one person's hero is another person's goat.

What I Think That I Have Learned About Legal Ethics, Richard H. Underwood

Law Faculty Scholarly Articles

In this short piece I want to say a few things that other academics teaching legal ethics may find disturbing. I say this because I believe that I may be swimming against the current academic fashion. Of course, it is possible that I do not have a very good handle on the current academic fashion. I hope I am not setting up a straw person to knock down, but I may be. If I am, I am sure someone will call me to task. What I am going to say is this: contrary to popular belief (among practitioners, at least) …

Business Law Reform In The United States: Thinking Too Small?, Douglas C. Michael

Law Faculty Scholarly Articles

Dean Johan Henning presents the South African experience with business entity reform as one part of a coordinated whole. It included, for example, government funding for business, tax reforms, accounting and securities changes. Henning says that these reforms, though multi-faceted, had a uniform purpose: to use small business as an engine to improve the economy and to move “historically and socially disadvantaged groups” into the mainstream of the economy and the society.

These are noble goals and far reaching efforts, and a lot to ask of business entity reform. But because the South African experience was nonetheless successful by all …

The Constitutionality Of An Executive Spending Plan, Paul E. Salamanca

Law Faculty Scholarly Articles

Operation of government in the absence of appropriations has become relatively common in the United States, particularly when projected expenses exceed projected revenue, making adoption of a budget a difficult task for the legislature. This Article focuses on the budget crisis in the Commonwealth of Kentucky from 2002 through 2003. In Part I, this Article recapitulates the history of the spending plan, including the action filed in Franklin Circuit Court to affirm its constitutionality. In Part II, this Article discusses certain theoretical, historical, and legal principles that inform analysis of the plan. In Part III, it considers certain deviations and …