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Articles 12481 - 12510 of 20102
Full-Text Articles in Entire DC Network
Stapled Securities--"The Next Big Thing" For Income Trusts? Useful Lessons From The Us Experience With Stapled Shares, Reuven S. Avi-Yonah, Tim Edgar, Fadi Shaheen
Stapled Securities--"The Next Big Thing" For Income Trusts? Useful Lessons From The Us Experience With Stapled Shares, Reuven S. Avi-Yonah, Tim Edgar, Fadi Shaheen
Articles
The Department of Finance has introduced two separate sets of legislation that together attempt to limit demand in the income trust market (though with very different revenue consequences). However, neither the proposed legislation nor the existing Income Tax Act contains an equity recharacterization rule. Consequently, the tax results associated with the standard income trust and royalty trust structures can still be realized with direct holding structures, in which the use of a trust as a pooling mechanism is eliminated and investors hold directly a combination of high-yield junk debt and a specified number of shares of the issuer. Until now, …
Void For Vagueness, Carl E. Schneider
Void For Vagueness, Carl E. Schneider
Articles
When law regulates a profession, where does it get its standards? Largely from the profession. Members of professions acquire esoteric and abstract knowledge through formal education and the experience of practice. They use professional judgment in applying this knowledge to each case. Because legislatures and courts lack this expertise, they adopt the standards of the experts. Thus in a malpractice suit, juries are instructed to determine whether the doctor met medicine's standard of care. Furthermore, physicians must be called as expert witnesses to guide juries in that work. Even when lawmakers contemplated intensifying their regulation of medicine by creating the …
Mission Accomplished?, Ellen D. Katz
Mission Accomplished?, Ellen D. Katz
Articles
My study of voting rights violations nationwide suggests that voting problems are more prevalent in places “covered” by the Act than elsewhere. Professor Persily’s careful and measured defense of the renewed statute posits that this evidence is the best available to support reauthorization. The evidence matters because if, as critics charge, the regional provisions of the Voting Rights Act (VRA) are no longer needed, minority voters should confront fewer obstacles to political participation in places where additional federal safeguards protect minority interests than in places where these safeguards do not operate. In fact, minority voters confront more.
Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger
Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger
Articles
A number of states recognize hedonic damages as a separate category of recovery in tort and tort-like actions. Others consider lost enjoyment of life as an aspect of what are sometimes termed "disability" damages-damages for physical or mental impairment. Many other states permit juries to take account of lost enjoyment of life in setting compensation for pain and suffering or other forms of general damages. In all these jurisdictions, disability has loomed large. And the (explicit or implicit) view of disability is often one of tragic dependency and helplessness. As we show in Part I below, lawyers seeking hedonic damages …
The Word And The Law, James Boyd White
The Word And The Law, James Boyd White
Articles
In this Article I shall first give a brief account of Milner Ball's book, The Word and the Law, saying something about the interesting and important way in which it connects theology, literature, and law. I shall then give a little more content to what I say about this achievement by engaging in a kind of reading of two texts, one theological and one literary, connecting both to the law. I mean this reading simultaneously to be my own and to reflect something of what I have learned from Milner. Another way to put this is to say that …
Homer Clark: Colleague And Friend, James Boyd White
Homer Clark: Colleague And Friend, James Boyd White
Articles
Born in Chicago in 1918, Homer Clark was raised in the Long Island suburbs of New York City. After high school he attended Amherst College, where he was an athlete-playing football, squash, and I think baseball too--as well as of course a good student. There he met the major influence in his intellectual life, Theodore Baird, who was the dominant academic figure at Amherst in those days. Baird was an English teacher, whose extraordinary freshman composition course opened the minds of generations of students. Baird and Homer hit it off, especially after they got into an argument in class. Homer …
Refugee Solution, Or Solutions To Refugeehood?, James C. Hathaway
Refugee Solution, Or Solutions To Refugeehood?, James C. Hathaway
Articles
This is the text of a lecture delivered by James C. Hathaway in London in October 2006 to mark the twenty-fifth anniversary of the founding of Jesuit Refugee Service. The lecture was sponsored jointly by the Centre for the Study of Human Rights, London School of Economics; the Heythrop Institute for Religion, Ethics, and Public Life; and Jesuit Refugee Service (UK).
Federalism And The Commerce Clause: A Comparative Perspective, Reuven S. Avi-Yonah
Federalism And The Commerce Clause: A Comparative Perspective, Reuven S. Avi-Yonah
Articles
The U.S. Supreme Court has on numerous occasions addressed the constitutionality of state taxes under the U.S. Constitution (most often under the Commerce Clause, but sometimes under the Equal Protection and Due Process Clauses). In general, the Supreme Court has granted wide leeway to the states to adopt any tax system they wish, only striking down the most egregious cases of discrimination against out-of-state residents. Thus, for example, the Court has generally refused to intervene against state tax competition to attract business into the state. It has twice upheld a method of calculating how much income of a multinational enterprise …
Partially Odious Debts?, Omri Ben-Shahar, Mitu Gulati
Partially Odious Debts?, Omri Ben-Shahar, Mitu Gulati
Articles
The despotic ruler of a poor nation borrows extensively from foreign creditors. He spends some of those funds on building statues of himself, others on buying arms for his brutal secret police, and he places the remainder in his personal bank accounts in Switzerland. The longer the despot stays in power, the poorer the nation becomes. Although the secret police are able to keep prodemocracy protests subdued by force for many years, eventually there is a popular revolt. The despot flees the scene with a few billion dollars of his illgotten gains. The populist regime that replaces the despot now …
Private Liability For Reckless Consumer Lending, John A. E. Pottow
Private Liability For Reckless Consumer Lending, John A. E. Pottow
Articles
Congress recently enacted amendments to the Bankruptcy Code that possess the overarching theme of cracking down on debtors due to the increasing rate at which individuals have been filing for bankruptcy. Taking into account the correlation between the overall rise in consumer credit card debt and the rate of individual bankruptcy filings, the author nevertheless hypothesizes that not all credit card debt is troubling. Instead, the author proposes that the catalyst driving individual bankruptcy rates higher than ever is the level of "bad credit"-or credit extended to individuals even though there is a reasonable likelihood that the individual will be …
Insider Trading Rules Can Affect Attractiveness Of Country's Stock Markets, Laura Nyantung Beny
Insider Trading Rules Can Affect Attractiveness Of Country's Stock Markets, Laura Nyantung Beny
Articles
The academic debate about the desirability of prohibiting insider trading is longstanding and as yet unresolved. Until Henry Manne’s 1966 book, Insider Trading and the Stock Market, the debate centered on whether insider trading is unfair to public investors who are not privy to private corporate information. However, the fairness approach is malleable and indeterminate and thus does not lend itself to clear-cut policy prescriptions. Since Manne’s book, the focus of the debate has been on the effect of insider trading on economic efficiency. Manne argued that, contrary to the prevailing legal and moral opinion of the time, insider trading …
Criminal Justice And The 1967 Detroit 'Riot', Yale Kamisar
Criminal Justice And The 1967 Detroit 'Riot', Yale Kamisar
Articles
Forty years ago the kindling of segregation, racism, and poverty burst into the flame of urban rioting in Detroit, Los Angeles, Newark, and other U.S. cities. The following essay is excerpted from a report by Professor Emeritus Yale Kamisar filed with the National Advisory Commission on Civil Disorders (the Kerner Commission) regarding the disorders that took place in Detroit July 23-28, 1967. The report provided significant material and was the subject of one article in the series of pieces on the anniversary of the disturbances that appeared last summer in The Michigan Citizen of Detroit. Immediately after the disturbances ended, …
The Nondischargeability Of Student Loans In Personal Bankruptcy Proceedings: The Search For A Theory, John A. E. Pottow
The Nondischargeability Of Student Loans In Personal Bankruptcy Proceedings: The Search For A Theory, John A. E. Pottow
Articles
In fiscal year 2002, approximately 5.8 million Americans borrowed $38 billion (USD) in federal student loans. This was more than triple the $11.7 billion borrowed in 1990. As a rule of thumb, tuition has been increasing at roughly double the rate of inflation in recent years. This troubling trend of accelerating tuition, coupled with the fact that real income has stagnated for men and increased only modestly for women over the past two decades, means that more and more students are going to need to turn to borrowed money to finance their degrees absent a radical restructuring of the postsecondary …
Procedural Injustice: How The Practices And Procedures Of The Child Welfare System Disempower Parents And Why It Matters, Vivek Sankaran, Itzhak Lander
Procedural Injustice: How The Practices And Procedures Of The Child Welfare System Disempower Parents And Why It Matters, Vivek Sankaran, Itzhak Lander
Articles
Many of us appear surprised when families involved in the child protective system do not reunify. A parent’s path to reunification seems straightforward. Upon a finding of neglect, the court prescribes a basic regimen, typically consisting of parenting classes, counseling, drug testing, and a psychological evaluation, that a parent must fulfill prior to having the child returned to his/her custody. If a parent successfully completes these seemingly minimal requirements, the law requires reunification unless the return poses a “substantial risk of harm” to the child. With such high stakes involved, a clearly defined path for success, and the prospect of …
An Inclusive, Progressive National Savings And Financial Services Policy, Michael S. Barr
An Inclusive, Progressive National Savings And Financial Services Policy, Michael S. Barr
Articles
How many of us walk by the signs for "Checks Cashed Here," "Money Orders for Sale," and "Payday Loans: Get Cash Quick" without thinking about the implications of those signs for the daily lives of lower-income households? Most of us can take for granted getting our paychecks directly deposited into our bank accounts, writing a check, or storing our money in an account. We often struggle to save for longer-term goals, such as our children's education, or retirement, but most of us, most of the time, do not worry whether our savings or insurance will be enough to get us …
The Kerr Principle, State Action, And Legal Rights, Donald J. Herzog
The Kerr Principle, State Action, And Legal Rights, Donald J. Herzog
Articles
A Baltimore library refused to admit Louise Kerr to a training program because she was black. Not that it had anything against blacks, but its patrons did. When Kerr launched a civil suit against the library alleging a violation of equal protection of the laws, the courts credited the library's claim that it had no racist purpose, but Kerr still prevailed-even though the case occurred before Title VII and Brown v. Board of Education. Here a neutral and generally applicable rule ("serve the patrons"), when coupled with particular facts about private parties (the white patrons dislike blacks), yielded an …
Crawford, Davis, And Way Beyond, Richard D. Friedman
Crawford, Davis, And Way Beyond, Richard D. Friedman
Articles
Until 1965, the Confrontation Clause of the Sixth Amendment to the United States Constitution hardly mattered. It was not applicable against the states, and therefore had no role whatsoever in the vast majority of prosecutions. Moreover, if a federal court was inclined to exclude evidence of an out-of-court statement, it made little practical difference whether the court termed the statement hearsay or held that the evidence did not comply with the Confrontation Clause.
Does Nonprofit Ownership Matter?, Jill R. Horwitz
Does Nonprofit Ownership Matter?, Jill R. Horwitz
Articles
In recent years, policymakers have increasingly questioned whether nonprofit institutions, particularly hospitals, merit tax exemption. They argue that nonprofit hospitals differ little from their for-profit counterparts in the provision of charity care and, therefore, should either lose their tax-exempt status or adhere to new, strict, and specific requirements to provide free services for the poor. In this Article, I present evidence that hospital ownership-whether it is for-profit, nonprofit, or government owned-has a significant effect on the mix of medical services it offers. Despite notoriously weak enforcement mechanisms, nonprofit hospitals act in the public interest by providing services that are unlikely …
Double-Consciousness In Constitutional Adjudication, Richard A. Primus
Double-Consciousness In Constitutional Adjudication, Richard A. Primus
Articles
Constitutional theorists are familiar with epistemic and consequentialist reasons why judges might allow their decision making to be shaped by strongly held public opinion. The epistemic approach treats public opinion as an expert indicator, while the consequentialistapproach counsels judges to compromise legally correct interpretations so as not to antagonize a hostile public. But there is also a third reason, which we can think ofas constitutive. In limited circumstances, the fact that the public strongly holds a given view can be one of the factors that together constitute the correct answer to a constitutional question. In those circumstances, what the public …
Tax Consequences When A New Employer Bears The Cost Of The Employee's Terminating A Prior Employment Relationship, Douglas A. Kahn, Jeffrey H. Kahn
Tax Consequences When A New Employer Bears The Cost Of The Employee's Terminating A Prior Employment Relationship, Douglas A. Kahn, Jeffrey H. Kahn
Articles
The next few months will be busy ones for moving companies that have NCAA basketball coaches as customers. In the past few months, several men's college basketball coaches have accepted jobs at different schools. Several of those coaches, who were still under contract at their former institution, had buy out provisions that allowed them to terminate their relationship for a set price. John Beilein is a prominent example of this since his buy out price was so high. Last season, Beilein was the head basketball coach at West Virginia University where he was under contract with the school until 2012. …
The Meaning Of 'Necessary' In Gatt Article Xx And Gats Article Xiv: The Myth Of Cost-Benefit Balancing, Donald H. Regan
The Meaning Of 'Necessary' In Gatt Article Xx And Gats Article Xiv: The Myth Of Cost-Benefit Balancing, Donald H. Regan
Articles
Conventional wisdom tells us that in Korea–Beef, the Appellate Body interpreted the word ‘necessary’ in GATT Article XX to require a cost–benefit balancing test. The Appellate Body is supposed to have applied this test also in EC–Asbestos, US–Gambling (involving GATS Article XIV), and Dominican Republic–Cigarettes. In this article I demonstrate, by detailed analysis of the opinions, that the Appellate Body has never engaged in such balancing. They have stated the balancing test, but in every case they have also stated the principle that Members get to choose their own level of protection, which is logically inconsistent with judicial review by …
Why Refugee Law Still Matters, James C. Hathaway
Why Refugee Law Still Matters, James C. Hathaway
Articles
I am concerned that the singular importance of international refugee law is profoundly misunderstood. My more specific worry is that erroneous and competing claims by governments and the refugee advocacy community about the structure and purpose of refugee law threaten its continuing ability to play a truly unique human rights role at a time when no meaningful alternative is in sight.
Televising The Court: A Category Mistake (Symposium On Televising The Supreme Court), Christina B. Whitman
Televising The Court: A Category Mistake (Symposium On Televising The Supreme Court), Christina B. Whitman
Articles
The idea of televising Supreme Court oral arguments is undeniably appealing. Consequently, it is not surprising that reporters and politicians have been pressuring the Court to take this step. The other branches have been media-friendly for years, and Supreme Court arguments are already open to the public. Why should those of us who neither reside in Washington, D.C. nor have the time to attend Court proceedings be asked to depend on reporters for descriptions of the event? Even lower courts permit cameras. There is an understandable hunger for anything that will help us understand these nine individuals who have so …
Sources Of Presidential Papers And Documents On The Web, Barbara H. Garavaglia
Sources Of Presidential Papers And Documents On The Web, Barbara H. Garavaglia
Articles
The President of the United States and his staff produce a large volume of documents and other materials. These documents fall into two major categories. The first category is comprised of archival presidential materials such as papers, documents, visual and audio records of the presidency, and the personal papers of the president, his family, associates, and friends. This category of presidential material is primarily of interest to historians, political scientists, and other scholars because it provides "a comprehensive view of our Presidents and... [U.S.] history."1 The second category is comprised of presidential documents with legal effect used by the president …
Nsf Fees, James J. White
Nsf Fees, James J. White
Articles
Overdraft fees now make up more than half of banks' earnings on consumer checking accounts. In the past century, overdrafts have gone from the banker's scourge to the banker's profit center as bankers have learned that there is much to be made on these short term loans at breathtaking interest rates. I note that the federal agencies have been complicit in the growth of this form of lending. I propose that the banks and the agencies recognize the reality and attempt to mitigate these rates by encouraging the development of a competitive market.
Class Gifts Under The Restatement (Third) Of Property, Lawrence W. Waggoner
Class Gifts Under The Restatement (Third) Of Property, Lawrence W. Waggoner
Articles
The new Restatement (Third) of Property (officially the Restatement (Third) of Property: Wills and Other Donative Transfers), in tandem with the Restatement (Third) of Trusts, is systematically proceeding through the whole field of wills, will substitutes, trusts, and estates. Both of the new Restatements should prove to be handy resources for trust and estate lawyers, not only in preparing to argue cases at both trial and appellate levels, but also in the everyday work of drafting and construing dispositive provisions in wills, trusts, and other types of donative documents. Each Restatement section is followed by a set of Comments explaining …
Structural Reform In Criminal Defense: Relocating Ineffective Assistance Of Counsel Claims, Eve Brensike Primus
Structural Reform In Criminal Defense: Relocating Ineffective Assistance Of Counsel Claims, Eve Brensike Primus
Articles
This Article suggests a structural reform that could solve two different problems in criminal defense representation. The first problem is that the right to effective trial counsel lacks a meaningful remedy. Defendants are generally not permitted to raise ineffective assistance of counsel claims until collateral review. Given that collateral review typically occurs years after trial, most convicted defendants have completed their sentences by that time and therefore have little incentive to pursue ineffectiveness claims. Moreover, there is no right to counsel on collateral review, and it is unrealistic to expect defendants to navigate the complicated terrain of an ineffectiveness claim …
Regulatory Beneficiaries And Informal Agency Policymaking, Nina A. Mendelson
Regulatory Beneficiaries And Informal Agency Policymaking, Nina A. Mendelson
Articles
Administrative agencies frequently use guidance documents to set policy broadly and prospectively in areas ranging from Department of Education Title IX enforcement to Food and Drug Administration regulation of direct-to-consumer pharmaceutical advertising. In form, these guidances often closely resemble the policies agencies issue in ordinary notice-and-comment rulemaking. However, guidances are generally developed with little public participation and are often immune from judicial review. Nonetheless, guidances can prompt significant changes in behavior from those the agencies regulate. A number of commentators have guardedly defended the current state of affairs. Though guidances lack some important procedural safeguards, they can help agencies supervise …
Creative Reading, Jessica D. Litman
Creative Reading, Jessica D. Litman
Articles
Let me begin with something that Jamie Boyle wrote ten years ago in Intellectual Property Policy Online: A Young Person's Guide:' Copyright marks the attempt to achieve for texts and other works a balance in which the assumption of the system is that widespread use is possible without copying. The relative bundles of rights of the user and the owner achieve their balance based on a set of economic and technical assumptions about the meaning of normal use. For our purposes, I would like to generalize this as something that Boyle might have written if he had not in that …
The Puzzle Of Complete Preemption, Gil Seinfeld
The Puzzle Of Complete Preemption, Gil Seinfeld
Articles
Part I introduces the central themes in the law of federal question jurisdiction. It describes the prevailing interpretations of the constitutional and statutory texts governing the federal courts' jurisdiction to adjudicate disputes involving questions of federal law, and it explores the reasons for the establishment of such jurisdiction. This Part also introduces the well-pleaded complaint rule and examines the reasons for its adoption by the Supreme Court. Part II provides a detailed account of complete preemption doctrine, under which parties are permitted to usher state-law claims into the federal courts despite the apparent absence of any federal question on the …