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Taxing Civil Rights Gains, Anthony C. Infanti 2010 University of Pittsburgh School of Law

Taxing Civil Rights Gains, Anthony C. Infanti

Michigan Journal of Gender and Law

This Article is divided into four parts. In Part I, the nature of the levy that the DOMAs impose on same-sex couples is explained. In Part II, how this levy can be classified as a "tax" is explained. In Part III, the federal- and state-level ramifications of classifying the levy that the DOMAs impose as a "tax" are discussed. Finally, brief concluding remarks are provided that discuss how this Article might pave the way for making similar arguments with respect to other nontraditional families and, concomitantly, how it demonstrates the transformative potential of same-sex marriage.


The Overlooked Significance Of Arizona's New Immigration Law, Rick Su 2010 State University of New York at Buffalo Law School

The Overlooked Significance Of Arizona's New Immigration Law, Rick Su

Michigan Law Review First Impressions

Immigration has once again become the subject of widespread interest and public debate. This renewed interest, however, was not the result of Harry Reid's vow that the Senate will tackle comprehensive immigration reform sometime this year. Nor was it prompted by new policy initiatives with respect to immigration enforcement being implemented by the Department of Homeland Security. Rather, it has been the result of legislative action taken in one state-Arizona. Arizona's move to regulate immigration has predictably raised questions about the proper role of a state with respect to an area dominated by federal legislation. Yet the discussion ...


The Case For Semi-Strong-Form Corporate Scienter In Securities Fraud Actions, Paul B. Maslo 2010 King & Spalding

The Case For Semi-Strong-Form Corporate Scienter In Securities Fraud Actions, Paul B. Maslo

Michigan Law Review First Impressions

The mental state of scienter - intent to defraud - is a required element of a securities fraud claim. The scienter inquiry is fairly straightforward when the defendant is an individual. It is more complex when a corporate entity is involved because a corporation can only act through its agents; it has no mind of its own. This article compares the three approaches courts have used to impute scienter to corporate defendants in the securities fraud context and concludes by recommending the approach which strikes an appropriate balance between several dueling public policy concerns.


Redemption Song: Graham V. Florida And The Evolving Eighth Amendment Jurisprudence, Robert Smith, G. Ben Choen 2010 Harvard Law School

Redemption Song: Graham V. Florida And The Evolving Eighth Amendment Jurisprudence, Robert Smith, G. Ben Choen

Michigan Law Review First Impressions

In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits a sentence of life without parole ("LWOP") for a juvenile under eighteen who commits a non-homicide offense. For Terrance Graham, who committed home-invasion robbery at seventeen, the decision does not mean necessarily that he someday will leave the brick walls of Florida's Taylor Annex Correctional Institution. Unlike previous Eighth Amendment decisions, such as Roper v. Simmons, where the Court barred the death penalty for juveniles, this new categorical rule does not translate into automatic relief for members of the exempted class: "A State need not guarantee ...


Welcoming Women: Recent Changes In U.S. Asylum Law, Jillian Blake 2010 University of Michigan Law School

Welcoming Women: Recent Changes In U.S. Asylum Law, Jillian Blake

Michigan Law Review First Impressions

The Statue of Liberty, which has been called the "Mother of Exiles," stands as a reminder of one of the foundational ideals of U.S. immigration policy-providing refuge to the vulnerable. Women worldwide have new reason to believe in this promise, because victims of domestic violence may now have a better chance of being granted asylum in a U.S. immigration court.


Gina's Genotypes, David H. Kaye 2010 Pennsylvania State University, Dickinson School of Law

Gina's Genotypes, David H. Kaye

Michigan Law Review First Impressions

In August 2009, the Board of Trustees of the University of Akron added to the university's employment policy the following proviso: "any applicant may be asked to submit fingerprints or DNA sample for purpose of a federal criminal background check." Although the federal government does not do background checks with DNA, the policy is significant because it highlights a largely unexplored feature of the Genetic Information Nondiscrimination Act of 2008 ("GINA"). Hailed by the late Senator Edward Kennedy as "the first civil rights bill of the new century of life sciences," GINA generally prohibits employers from asking for "genetic ...


Freedom And Equality On The Installment Plan, Michael Halley 2010 University of Michigan Law School

Freedom And Equality On The Installment Plan, Michael Halley

Michigan Law Review First Impressions

A response to Nelson Tebbe & Robert L. Tsai, Constitutional Borrowing, 108 Mich. L. Rev. 462 (2010). Crediting the perception that the Constitution is a poorly cut puzzle whose variously configured pieces don't match, Nelson Tebbe and Robert Tsai propose that the stand-alone parts of freedom and equality can be merged and mutually enlarged through the act of borrowing. They are mistaken. While Thomas Jefferson wrote that ideas may be appropriated without being diminished and so "freely spread from one to another over the globe," the equality and freedom the Constitution addresses as actualities are constrained by a basic, familiar, and inescapable rule of financial accounting. Just as assets and liabilities must be in balance, freedoms are only acquired at the exacting expense of equality; no amount of borrowing can alter the equation. While as a matter of principle we are all equally entitled to be "let alone," this "most comprehensive right . . . the right most valued by civilized men," is not a one-size-fits-all proposition. While "the poorest man in his cottage" and the richest man in his mansion may both "bid defiance to all the forces of the Crown," the amount of privacy they enjoy as a matter of fact is incomparable. The privacy enjoyed by those unable to afford lodgings of any kind and forced to take refuge in ...


Optimal Fines For False Patent Marking, Thomas F. Cotter 2010 University of Minnesota Law School

Optimal Fines For False Patent Marking, Thomas F. Cotter

Michigan Telecommunications and Technology Law Review

This Essay proposes that, in order to avoid imposing arbitrary (and perhaps unnecessarily large) fines for false patent marking, courts should seek guidance in the law of remedies for false advertising and copyright infringement. In particular, courts should attempt to approximate the social harm caused by actionable false marking by taking into account (1) the plaintiff's loss (if any) and the defendant's gain (if any) attributable to the false marking at issue; (2) the plausibility of substantial but less easily quantifiable harms to consumers and to nonparty competitors; and (3) the risks, on the one hand, of underdeterring ...


There Is A Time To Keep Silent And A Time To Speak, The Hard Part Is Knowing Which Is Which: Striking The Balance Between Privacy Protection And The Flow Of Health Care Information, Daniel J. Gilman, James C. Cooper 2010 Federal Trade Commission

There Is A Time To Keep Silent And A Time To Speak, The Hard Part Is Knowing Which Is Which: Striking The Balance Between Privacy Protection And The Flow Of Health Care Information, Daniel J. Gilman, James C. Cooper

Michigan Telecommunications and Technology Law Review

Health information technology (HIT) has become a signal element of federal health policy, especially as the recently enacted American Recovery and Reinvestment Act of 2009 (Recovery Act or ARRA) comprises numerous provisions related to HIT and commits tens of billions of dollars to its development and adoption. These provisions charge various agencies of the federal government with both general and specific HIT-related implementation tasks including, inter alia, providing funding for HIT in various contexts: the implementation of interoperable HIT, HIT-related infrastructure, and HIT-related training and research. The Recovery Act also contains various regulatory provisions pertaining to HIT. Provisions of the ...


Book Review: Lexicon Of Human Rights, Duncan E. Alford 2010 University of South Carolina - Columbia

Book Review: Lexicon Of Human Rights, Duncan E. Alford

Faculty Publications

No abstract provided.


Filling The Due Process Donut Hole: Abuse And Neglect Cases Between Disposition And Permanency, Josh Gupta-Kagan 2010 University of South Carolina

Filling The Due Process Donut Hole: Abuse And Neglect Cases Between Disposition And Permanency, Josh Gupta-Kagan

Faculty Publications

No abstract provided.


The Political Fourth Amendment, Thomas P. Crocker 2010 University of South Carolina School of Law

The Political Fourth Amendment, Thomas P. Crocker

Faculty Publications

The Political Fourth Amendment builds on Justice Ginsburg's recent dissent in Herring v. United States to argue for a "more majestic conception" of the Fourth Amendment focused on protecting political liberty. To put the point dramatically, we misread the Fourth Amendment when we read it exclusively as a criminal procedure provision focused entirely on either regulating police or protecting privacy. In order to see the Fourth Amendment as contributing to the Constitution's protections for political liberty, and not simply as an invitation to regulate police practice, we must take seriously the fact that the Fourth Amendment's textual ...


Supervisory Colleges: The Global Financial Crisis And Improving International Supervisory Coordination, Duncan E. Alford 2010 University of South Carolina - Columbia

Supervisory Colleges: The Global Financial Crisis And Improving International Supervisory Coordination, Duncan E. Alford

Faculty Publications

No abstract provided.


Comprehensive Planning, Dominant-Use-Zones, And User Rights: A New Era In Ocean Governance, James N. Sanchirico, Josh Eagle, Steve Palumbi, Barton H. Thompson Jr. 2010 University of South Carolina - Columbia

Comprehensive Planning, Dominant-Use-Zones, And User Rights: A New Era In Ocean Governance, James N. Sanchirico, Josh Eagle, Steve Palumbi, Barton H. Thompson Jr.

Faculty Publications

Ocean-zoning arguments often center on the biology of ocean species, the geography of fishing-use patterns, and the need for preventing use conflicts. Here we expand this discussion to the social and legal aspects of ocean zoning, focusing on comprehensive planning, segregation of activities into use-priority areas, and the allocation of user rights within each zone. The inclusion of all of these features within an ocean-zoning regime can be a catalyst for a variety of ancillary benefits, including opportunities for user groups to form informal or formal long-lived institutions and a reassessment of the focus and scope of the regulatory institutions ...


Pleading Disability, Joseph Seiner 2010 University of South Carolina - Columbia

Pleading Disability, Joseph Seiner

Faculty Publications

A significant failure. That is how the Americans with Disabilities Act ("ADA") has been described by legal scholars and disability advocates alike. The statute was widely expected to help prevent disability discrimination in employment, but it has not fully achieved its intended purpose because of the narrow interpretation of the ADA by the courts. Congress recently sought to restore the employment protections of the ADA by amending the statute. Interpreting the complex and comprehensive amendments to the ADA will be a difficult task for the federal courts. Complicating matters further, the proper pleading standard for disability claims was left in ...


Stranger Dictum: Why Arizona V. Gant Compels The Conclusion That Suspicionless Buie Searches Incident To Lawful Arrests Are Unconstitutional, Colin Miller 2010 University of South Carolina - Columbia

Stranger Dictum: Why Arizona V. Gant Compels The Conclusion That Suspicionless Buie Searches Incident To Lawful Arrests Are Unconstitutional, Colin Miller

Faculty Publications

No abstract provided.


After Iqbal, Joseph Seiner 2010 University of South Carolina - Columbia

After Iqbal, Joseph Seiner

Faculty Publications

No abstract provided.


Indian Law: Dangerous Gamble: Child Support, Casino Dividends, And The Fate Of The Indian Family, Marcia A. Yablon-Zug 2010 University of South Carolina - Columbia

Indian Law: Dangerous Gamble: Child Support, Casino Dividends, And The Fate Of The Indian Family, Marcia A. Yablon-Zug

Faculty Publications

No abstract provided.


Taxing Structured Settlements, Brant J. Hellwig, Gregg D. Polsky 2010 University of South Carolina - Columbia

Taxing Structured Settlements, Brant J. Hellwig, Gregg D. Polsky

Faculty Publications

Congress has granted a tax subsidy to physically injured tort plaintiffs who enter into structured settlements. The subsidy allows these plaintiffs to exempt the investment yield imbedded within the structured settlement from federal income taxation. The apparent purpose of the subsidy is to encourage physically injured plaintiffs to invest, rather than presently consume, their litigation recoveries. Although the statutory subsidy by its terms is available only to physically injured tort plaintiffs, a growing structured settlement industry now contends that the same tax benefit of yield exemption is available to plaintiffs' lawyers and nonphysically injured tort plaintiffs under general, common-law tax ...


H-1b Visa Legislation: Legal Deficiencies And The Need For Reform, Alaina M. Beach 2010 University of South Carolina

H-1b Visa Legislation: Legal Deficiencies And The Need For Reform, Alaina M. Beach

South Carolina Journal of International Law and Business

No abstract provided.


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