Law Commons^™

Regulating Compensation, A. Christine Hurt

Faculty Scholarship

No abstract provided.

The Windfall Myth, A. Christine Hurt

Faculty Scholarship

No abstract provided.

Can Tax Expenditure Analysis Be Divorced From A Normative Tax Base?: A Critique Of The 'New Paradigm' And Its Denouement, J. Clifton Fleming Jr., Robert J. Peroni

Faculty Scholarship

Tax expenditure analysis (TEA) requires a baseline for identifying tax provisions that provide subsidies or incentives instead of serving to define the tax base and to implement the tax. With respect to the federal income tax, the baseline historically has been the Schanz-Haig-Simons (SHS) definition of income with a few modifications. Critics have continuously and strongly attacked TEA by characterizing the SHS baseline as unprincipled, imprecise, and insufficiently related to our hybrid income/consumption tax system as it actually exists. Since the baseline is hopelessly defective, so the critics argue, TEA is fatally dysfunctional and the results of its application to …

All Human Rights Are Equal, But Some Are More Equal Than Others: The Extraordinary Rendition Of A Terror Suspect In Italy, The Nato Sofa, And Human Rights, Chris Jenks, Eric Talbot Jensen

Faculty Scholarship

On November 4, 2009, an Italian court found a group of Italian military intelligence agents, operatives from the Central Intelligence Agency and a U.S. Air Force (USAF) officer guilty of the 2003 kidnapping of terror suspect Abu Omar. Thrown in a van on the streets of Milan, the abduction took Abu Omar from Italy to Egypt, where he was allegedly tortured and interrogated about his role in recruiting fighters for extremist Islamic causes, including the insurgency in Iraq. This essay posits that lost amidst politically charged rhetoric about Bush administration impunity and the “war on terror” is that the Italian …

Judicial System Rises To Challenges Of Times, Kevin Washburn

Faculty Scholarship

No abstract provided.

Transfer Pricing, Business Restructurings And Intangibles - Case Studies: Ups V. Commissioner; Dsg Retail Ltd. V. Hmrc, Richard Thompson Ainsworth

Faculty Scholarship

United Parcel Service of America, the largest motor carrier in the US, and DSG Retail the largest retailer of electrical goods in the UK, restructured operations and established captive insurance companies in offshore tax havens. In both instances, these restructurings removed sizeable amounts of income from the domestic tax base.

The IRS and HMRC opened transfer pricing audits. The UPS case involved tax year 1984 and was settled in 2003; DSG Retail involved 1997 through 2005 and was settled in 2009. Both settlements came on the heels of government-favorable court decisions, and prior to the addition of Chapter IX to …

Competing Theories Of Blackmail: An Empirical Research Critique Of Criminal Law Theory, Michael T. Cahill, Paul H. Robinson, Daniel M. Bartels

Faculty Scholarship

No abstract provided.

The Distortionary Effect Of Evidence On Primary Behavior, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.

The Visible Hand: Coordination Functions Of The Regulatory State, Robert B. Ahdieh

Faculty Scholarship

We live in a coordination economy. As one surveys the myriad challenges of modern social and economic life, an ever increasing proportion is defined not by the need to reconcile competing interests, but by the challenge of getting everyone on the same page. Conflict is not absent in these settings. It is not, however, the determinative factor in shaping our behaviors and resulting interactions. That essential ingredient, instead, is coordination.

Such coordination is commonly understood as the function of the market. As it turns out, however, optimal coordination will not always emerge, as if led “by an invisible hand.” Even …

Framing Franchise Antitrust Litigation: The Legacy Of Kodak And Queen City Pizza, Randy D. Gordon

Faculty Scholarship

A decade ago, many antitrust commentators were predicting a “revival” of franchise antitrust claims flowing in the wake of Eastman Kodak Co. v. Image Technical Services, Inc. The thinking was that Kodak’s recognition of a claim for monopolization of an “aftermarket” for parts and services separate from each other and from a primary product might be extended to cover franchise relationships in which the franchisee is required to purchase fungible products from its franchisor, even though those products could be purchased elsewhere on more favorable terms. Fairly quickly, though, the Third Circuit decided Queen City Pizza, Inc. v. Domino’s Pizza, …

Erisa & Uncertainty, Brendan S. Maher, Peter K. Stris

Faculty Scholarship

In the United States, retirement income and health insurance are largely provided through private promises made incident to employment. These “benefit promises” are governed by a statute called ERISA, which many healthcare and pension scholars argue is the cause of fundamental problems with our nation’s health and retirement policy. Inevitably, however, they advance narrowly tailored proposals to amend the statute. This occurs because of the widely-held view that reform should leave undisturbed the underlying core of the statute. This Article develops a theory of ERISA designed to illustrate the unavoidable need for structural reform.

Imperfect Alternatives: Networks, Salience, And Institutional Design In Financial Crises, Robert B. Ahdieh

Faculty Scholarship

With the benefit of hindsight — and some aspiration to foresight — it is useful to consider the type of regulatory regime that might best address financial crises. What could policymakers have done to prevent the recent crisis? And once the crisis started, what interventions might have alleviated it? These questions have been widely debated, with an eye to both substantive policy and the design of effective regulatory institutions. This Article speaks to the latter project — one of comparative institutional analysis — though with a framework that implicates our substantive policy choices as well. It begins with an account …

Mainstreaming Privacy Torts, Danielle K. Citron

Faculty Scholarship

In 1890, Samuel Warren and Louis Brandeis proposed a privacy tort and seventy years later, William Prosser conceived it as four wrongs. In both eras, privacy invasions primarily caused psychic and reputational wounds of a particular sort. Courts insisted upon significant proof due to those injuries’ alleged ethereal nature. Digital networks alter this calculus by exacerbating the injuries inflicted. Because humiliating personal information posted online has no expiration date, neither does individual suffering. Leaking databases of personal information and postings that encourage assaults invade privacy in ways that exact significant financial and physical harm. This dispels concerns that plaintiffs might …

Presidential Succession: The Art Of The Possible, James E. Fleming

Faculty Scholarship

I am deeply honored that John D. Feerick invited me to come back to Fordham University School of Law and appear in this splendid conference. Yet I hasten to say that, when it comes to presidential succession, John Feerick and Joel K. Goldstein are tough acts to follow. Indeed, in an otherwise wonderfully organized conference, the line of succession here is flawed. I suppose I should declare myself unqualified to follow these experts on presidential succession! I shall bring the perspective of the constitutional theory generalist to bear on the questions framed for our panel.

Sonia, What’S A Nice Person Like You Doing In Company Like That, Thomas D. Rowe Jr.

Faculty Scholarship

No abstract provided.

Freedom Of Contract Vs. Free Alienability: An Old Struggle Emerges In A New Context, Neil B. Cohen, William H. Henning

Faculty Scholarship

This article addresses a contemporary reigniting of an ages-old conundrum in Anglo-American law. The conundrum results from the collision of two concepts that are usually thought of as mainstays of the law--freedom of contract and free alienability of property--in the context of assignments of receivables.

Preventing Accidents In Offshore Oil And Gas Operations: The U.S. Approach And Some Contrasting Features Of The Norwegian Approach, Michael S. Baram

Faculty Scholarship

This working paper deals with the U.S. approach for governing the safety of offshore oil and gas operations and preventing major accidents during exploratory drilling and production. It evaluates the statutory and regulatory framework, and agency implementation and reliance on industrial standards, and then suggests reforms to improve the efficacy of this governance system. References are made to the blowout at the drilling rig operated by British Petroleum to support the evaluation and reforms. References are also made to Norwegian laws and regulations governing oil and gas operations in the North Sea. As one of the world’s largest sources of …

Competing Theories Of Blackmail: An Empirical Research Critique Of Criminal Law Theory, Michael T. Cahill, Paul H. Robinson, Daniel M. Bartels

Faculty Scholarship

No abstract provided.

A Furious Kinship: Critical Race Theory And The Hip Hop Nation, André Douglas Pond Cummings

Faculty Scholarship

Two explosive movements were born in the United States in the 1970s. While the founding of both movements was humble and lightly noticed, both grew to become global phenomena that have profoundly changed the world. Founded by prescient agitators, these two movements were borne of disaffect, disappointment, and near desperation - a desperate need to give voice to oppressed and dispossessed peoples. America in the 1970s bore witness to the founding of two furious movements: Critical Race Theory and Hip Hop.

Critical Race Theory was founded as a response to what had been deemed a sputtering civil rights agenda in …

Social Semiotics In The Fair Use Analysis, H. Brian Holland

Faculty Scholarship

Fair use is perhaps the most contested doctrine in all of copyright law. New technologies that not only enable increased audience engagement with cultural works, but also facilitate the use of these "raw materials" to produce new works have made fair use more controversial. At another level, these technologies have made visible an audience, not of passive content consumers, but of active participants in discourse around and about those works.

This Article presents an argument for an expansion of fair use based on social semiotic theory, rather than on theories of authorship or rights of autonomy of subsequent authors. Instead, …

President's Missed Chance With Sikhs, Dawinder S. Sidhu

Faculty Scholarship

Decision to skip temple visit made out of fear, expediency

Alternative Burdens On Freedom Of Conscience, Adam Kolber

Faculty Scholarship

No abstract provided.

Resolving The Dilemma Of Nonjusticiable Causation In Failure-To-Warn Litigation, Neil B. Cohen, Aaron Twerski

Faculty Scholarship

No abstract provided.

Resolving The Dilemma Of Non-Justiciable Causation In Failure To Warn Litigation, Aaron D. Twerski, Neil B. Cohen

Faculty Scholarship

No abstract provided.

Strategic Enforcement, Alex Stein, Margaret H. Lemos

Faculty Scholarship

No abstract provided.

Should The Patient Conquer?, William M. Sage

Faculty Scholarship

In 1596, Robert Bainbridge carved “The patient shall conquer” into the wall of his cell in the Tower of London. It is highly unlikely that Bainbridge was an early advocate for recipients of medical care, imprisoned perhaps by a cruel sheriff denied his payroll taxes or by a domineering barber refused his fee. But its unintended meaning would immediately provoke sympathy from many health care reformers. As we confront the critical challenges of implementing national health-care reform, however, whether the patient should conquer is a legitimate topic for debate. Does the patient’s conquest risk the collapse of the health-care system …

Location-Based Services: Time For A Privacy Check-In, Chris Conley, Nicole Ozer, Hari O'Connell, Ellen Ginsburg, Tamar Gubins

Faculty Scholarship

Need to get directions when you are lost? Want to know if your friends are in the neighborhood? Location-based services – applications and websites that provide services based on your current location – can put this information and more in the palm of your hand.

But outdated privacy laws and varying corporate practices could mean that sensitive information about who you are, where you go, what you do, and who you know end up being shared, sold, or turned over to the government.

Can location-based services protect your privacy? Do they? And what can we do to improve the situation? …

'A Considerable Surgical Operation: Article Iii, Equity, And Judge-Made Law In The Federal Courts, Kristin Collins

Faculty Scholarship

This Article examines the history of judge-made law in the federal courts through the lens of the early-nineteenth-century federal courts’ equity powers. In a series of equity cases, and in the Federal Equity Rules promulgated by the Court in 1822 and 1842, the Supreme Court vehemently insisted that lower federal courts employ a uniform corpus of nonstate equity principles with respect to procedure, remedies, and - in certain instances - primary rights and liabilities. Careful attention to the historical sources suggests that the uniform equity doctrine was not simply the product of an overreaching, consolidationist Supreme Court, but is best …

The Economic Impact Of Local Immigration Regulation: An Empirical Analysis, Huyen Pham, Pham Hoang Van

Faculty Scholarship

A wave of local anti-immigration laws has swept the country, triggering contentious debate and raising significant legal and policy issues. One critical dimension that has been largely ignored, however, is the economic impact of these laws: Are jurisdictions with them better off economically than those without them?

In the first empirical study of this issue, we analyze the economic impact of local anti-immigration laws. The laws take different forms some authorize local police to enforce federal immigration laws, some restrict benefits like housing and employment to those with legal immigration status, and some require all government transactions to be conducted …

Uncertainties Remain For Judicial Takings Theory, Timothy M. Mulvaney

Faculty Scholarship

The U.S. Supreme Court waded into the waters of judicial takings last summer with a divided opinion that effectively carries no precedential value but is likely to have lower courts and property scholars trying to decipher its meaning for many years to come.

In Stop the Beach Renourishment, Inc. v. Florida Department of Environment Protection, 130 S. Ct. 2592 (2010), the Court decided that some Florida gulf-front property owners are not entitled to compensation under the federal Constitution’s Takings Clause when a state beach restoration project separates their private property from the water’s edge. Although the state prevailed in this …