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The Constitutionality Of Taxing Compensatory Damages For Mental Distress When There Was No Accompanying Physical Injury, Douglas A. Kahn

Articles

Since 1919, statutory tax law has excluded from gross income compensatory damages received on account of a personal injury or sickness.1 The current version of that exclusion is set forth in section 104 (a) (2) of the Internal Revenue Code of 1986.2 The construction of that exclusion, both by the courts and by the Commissioner, underwent significant alterations over the 80-year period that the provision has existed.3 The statute itself was amended several times, most recently in 1996.4 It is the 1996 amendment that has raised a constitutional issue concerning the validity of a portion of the statute.5

In Memoriam: Lewis F. Powell, Jr., Christina B. Whitman

Articles

At the time of his resignation, Justice Lewis F. Powell, Jr. was justly praised as a moderate, flexible jurist - open-minded, suspicious of ideology, most often found at the center of a divided Supreme Court. Yet Justice Powell was a man of deeply conservative instincts. Suspicious of invitations to expand the scope of individual constitutional rights, he was a participant and even a leader in the Court's reassertion of a federalism that emphasized deference to states and in its reinvigoration of restrictions on access to federal courts. His jurisprudence was all of a piece. Justice Powell's reluctance to expand federal …

Tax Consequences Of Assigning Life Insurance - Time For Another Look, Douglas A. Kahn, Lawrence W. Waggoner

Articles

The Taxpayer Relief Act of 1997 furnishes the courts and the Internal Revenue Service an opportunity to close certain loopholes in the federal tax consequences of assigning life insurance. About twenty years ago, we published an article arguing that the tax consequences of assigning life insurance affords taxpayers unwarranted opportunities for tax avoidance. Since then, developments in the case law and Internal Revenue Service rulings have broadened the loopholes. In the update of our article, we show how the new tax law supports our original position.

Rejoinder (Response To Article By William G. Bowen And Derek Bok), Terrance Sandalow

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In The Shape of the River, presidents Bowen and Bok pronounce the race-sensitive admission policies adopted by selective undergraduate schools a resounding success. The evidence they adduce in support of that conclusion primarily concerns the performance of African-American students in and after college. But not all African-American students in those institutions were admitted in consequence of minority preference policies. Some, perhaps many, would have been admitted under race-neutral policies. I argued at several points in my review that since these students might be expected to be academically more successful than those admitted because of their race, the evidence on which …

Confessions, Search And Seizure And The Rehnquist Court, Yale Kamisar

Articles

About the time William Rehnquist ascended to the Chief Justiceship of the United States, two events occurred that increased the likelihood that Miranda would enjoy a long life. In Moran v. Burbine,' a 6-3 majority held that a confession preceded by an otherwise valid waiver of a suspect's Miranda rights should not be excluded either (a) because the police misled an inquiring attorney when they told her they were not going to question the suspect she called about or (b) because the police failed to inform the suspect of the attorney's efforts to reach him.

. . . And The Invention Of The Future Tense, John W. Reed

Articles

This is the last session of the last meeting of the International Society of Barristers in the 1900s. Though the Third Millennium technically does not begin until 2001, the turn of the "odometer" from 1999 to 2000 leads us all to think of this as the end of a century and of a millennium. The pivotal date is yet ten nonths away, but the pundits are already issuing their lists, both profound and trivial-the greatest inventions, the best books, the worst natural catastrophes, the trial or tile century (of which there are at least a half dozen), the most influential …

A Right Of Access To Court Under The Petition Clause Of The First Amendment: Defining The Right, Carol Rice Andrews

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No abstract provided.

Allocations Attributable To Partner Nonrecourse Liabilities: Issues Revealed By Llcs And Llps, Christine Rucinski Strong, Susan Pace Hamill

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No abstract provided.

2-(22, 8, 4) Designs Have No Blocks Of Type 3, Brendan Mckay, Stanislaw Radziszowski

Articles

Using computer algorithms we show that in any 2-(22,8,4) design there are no blocks of type 3, thus leaving as possible only types 1 and 2. Blocks of type 3, i.e. those which intersect two others in one point, are eliminated using the algorithms described in our previous paper. It was perhaps the second largest computation ever performed (after the solution to the RSA129 challenge), requiring more than a century of cpu time.

Speckle Observations Of Binary Stars With The Wiyn Telescope. I. Measures During 1997, Elliott P. Horch, Zoran Ninkov, William F. Van Altena, Reed D. Meyer, Terrence M. Girard, J. Gethyn Timothy

Articles

Two hundred seventy-seven position angle and separation measures of 154 double stars are presented. Three of the systems were previously unknown to be double, and 16 other systems were discovered earlier this decade by the Hipparcos satellite. Measures are derived from speckle observations taken with the Wisconsin-Indiana-Yale-NOAO (WIYN) 3.5 m telescope located at Kitt Peak, Arizona. Speckle images were obtained using two different imaging detectors, namely, a multianode microchannel array (MAMA) detector and a fast-readout CCD. A measurement precision study was performed on a sample of binaries with extremely well known orbits by comparing the measures obtained here to the …

The Type Ia Aupernova 1997br In Eso 576-G40, Weidong Li, Yulei Qiu, Q. Y. Qiao, Xiao-Hong Zhu, Michael W. Richmond, A. V. Filippenko, R. R. Treffers, C. Y. Peng, D. C. Leonard

Articles

The peculiar type Ia supernova SN 1997br in ESO576-G40 was extensively observed at Beijing Astronomical Observatory (BAO) and Lick Observatory. In this paper, we present and discuss the BV RI photometry and the spectra collected over three months, starting from 9 days before maximum brightness. The light curves of SN 1997br are similar to those of SN 1991T, with slow decline rates after the B maximum. Well sampled data before the B maximum show unambiguously that SN 1997br rises more slowly and has a wider peak than normal type Ia supernovae. The optical color evolution of SN 1997br is also …

In-Camera Masking With 35mm Cameras, Andrew Davidhazy

Articles

Also published in ABC of Photography online magazine. (March 1999) A variation of the process used by advertising and commercial photographers whereby a desired background scene is combined with a foreground subject using in-camera masking devices but in this article it is explained how this may also be accomplished with 35mm cameras.

Still Adjusting To Markman: A Prescription For The Timing Of Claim Construction Hearings, William F. Lee, Anita K. Krug

Articles

This Article argues that, in most cases, there is an optimal time for holding the Markman hearing.

Part II provides a short summary of both the Federal Circuit's holding in Markman and the rationale behind the Supreme Court's affirmance of that holding. It then delves into the predictable effects of Markman, as well as into the maze of questions that the decision has engendered and the ways in which the district courts have answered those questions.

Part III discusses the issue of the timing of claim construction hearings, presenting at the outset the possible alternatives. It argues that holding …

Why Did Voters Reject Michigan's Physician-Assisted Suicide Initiative?, Yale Kamisar

Articles

In November 1997, when Oregon voters reaffirmed their support for doctor-assisted suicide, some commentators called it a turning point for the "right to die" movement. But the lopsided defeat of a similar proposal in Michigan is a better barometer: in general, assisted suicide continues to fare badly in the political arena.

Lost Lives: Miscarriages Of Justice In Capital Cases, Samuel R. Gross

Articles

In case after case, erroneous conviction for capital murder has been proven. I contend that these are not disconnected accidents, but systematic consequences of the nature of homicice prosecution in the general and capital prosecution in particular - that in this respect, as in others, death distorts and undermines the course of the law.

Living With The Death Penalty, Samuel R. Gross

Articles

The debate over the death penalty in the United States - such as it is - is framed in terms of criminal justice policy. The issues are the same ones we consider when the question is the length of prison sentence for a drug crime: Does the defendant deserve the penalty? Is it cost effective by comparison to other available sanctions? Will it deter others from committing the crimes for which he was convicted? Can we impose this punishment fairly? Can we make sure that innocent people are not condemned?

Family Law And Gay And Lesbian Family Issues In The Twentieth Century, David L. Chambers, Nancy D. Polikoff

Articles

Over these thirty years, lesbians and gay men have increasingly challenged conventional definitions of marriage and the family. In this brief article, we tell the story of gay people and family law in the United States across this period. We divide our discussion into two sections: issues regarding the recognition of the same-sex couple relationship and issues regarding gay men and lesbians as parents. These issues overlap, of course, but since family law discussions commonly treat adult-adult issues of all sorts separately from parent-child issues, we believe it convenient and helpful to do so as well.

Justice Without Justices, John O. Mcginnis

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No abstract provided.

Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier

Articles

Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not …

The Cutting Edge Of Poster Law, Michael A. Heller

Articles

Students place tens of thousands of posters around law schools each year in staircases, on walls, and on bulletin boards. Rarely, however, do formal disputes about postering arise. Students know how far to go-and go no farther despite numerous avenues for postering deviance: blizzarding, megasigns, commercial or scurrilous signs. What is the history of poster law? What are its norms and rules, privileges and procedures? Is poster law effident? Is it just?

The Tentative Case Against Flexibility In Commercial Law, Omri Ben-Shahar

Articles

Well-rooted in modern commercial law is the idea that the law and the obligations that it enforces should reflect the empirical reality of the relationship between the contracting parties. The Uniform Commercial Code ("Code") champions this tradition by viewing the performance practices formed among the parties throughout their interaction as a primary source for interpreting and supplementing their explicit contracts. The generous recognition of waiver and modifications, as well as the binding force the Code accords to course of performance, course of dealings, and customary trade usages, effectively permits unwritten commercial practices to vary and to erode explicit contractual provisions.

Dna Database Searches And The Legal Consumption Of Scientific Evidence, Peter Donnelly, Richard D. Friedman

Articles

DNA evidence has transformed the proof of identity in criminal litigation, but it has also introduced daunting problems of statistical analysis into the process. In this Article, we analyze a problem related to DNA evidence that is likely to be of great and increasing significance in the near future. This is the problem of whether, and how, to present evidence that the suspect has been identified through a DNA database search. In our view, the two well-known reports on DNA evidence issued by the National Research Council ("NRC"), each of which has carried great authority with the American courts on …

Legal Writing Scholarship: Point/Counterpoint, Jan M. Levine, Grace C. Tonner

Articles

Perhaps because the field of legal writing has now matured enough so that we professors constitute a critical mass of experienced teachers and scholars, we find ourselves frequently embroiled in debates about legal writing scholarship. What is it? Can we do it? Should we do it? Should it be considered part and parcel of our responsibilities as members of the law school world? To help us better present our shared view that legal writing professors not only can but should produce scholarship, we sought first to take on the role of devil’s advocate, presenting all the rationales we have heard …

Finding The Constitution: An Economic Analysis Of Tradition's Role In Constitutional Interpretation, Adam C. Pritchard, Todd J. Zywicki

Articles

In this Article, Professor Pritchard and Professor Zywicki examine the role of tradition in constitutional interpretation, a topic that has received significant attention in recent years. After outlining the current debate over the use of tradition, the authors discuss the efficiency purposes of constitutionalism--precommitment and the reduction of agency costs--and demonstrate how the use of tradition in constitutional interpretation can serve these purposes. Rejecting both Justice Scalia's majoritarian model, which focuses on legislative sources of tradition, and Justice Souter's common-law model, which focuses on Supreme Court precedent as a source of tradition, the authors propose an alternative model--the "finding model"-- …

Lilly V. Virginia: A Chance To Reconceptualize The Confrontation Right, Richard D. Friedman

Articles

In Lilly v. Virginia, the Supreme Court once again has the opportunity to grapple with the meaning of the Confrontation Clause of the Sixth Amendmel).t. The basic facts of Lilly are simple, for they present the ageold problem of accomplice confessions. Three men, Gary Barker and Ben and Mark Lilly, went on a crime spree, during which one of them shot to death a young man they had robbed and kidnaped. Ben Lilly was charged with being the triggerman, and Barker testified to that effect at Ben's trial. Mark did not testify. But Mark had made a statement to the …

Labor-Management Cooperation In The United States: Reflections On Boeing, Daniel H. Foote

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No abstract provided.

The Dilemma Of Intellectual Property Piracy In China, Jennifer S. Fan

Articles

This Article analyzes the effectiveness of China's intellectual property laws and the role they play in China's foreign trade and investment. It gives an overview of how intellectual property laws developed in China and explains why they have been inadequate, especially with respect to the protection of the interests of U.S. companies. It then illustrates why America's response to the piracy of intellectual property has been largely ineffective. The Article explains why China's strides in intellectual property law have fallen short of expectations and offers alternative methods of protecting intellectual property rights in China.

Corralling Kevorkian: Regulating Physician-Assisted Suicide In America, Steve Calandrillo

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This article examines the evolution and history of the development of the right-to-die in America, the ethical considerations surrounding physician-assisted suicide (P.A.S.), and the dangers posed by the rise of managed care. I then explore and analyze efforts to legalize and regulate assisted suicide (Netherlands, Oregon, The Model State Act), and suggest the criteria I believe are essential to include in any P.A.S. regulatory scheme.

The New Wild West: Measuring And Proving Fame And Dilution Under The Federal Trademark Dilution Act, Xuan-Thao Nguyen

Articles

The passage of the Federal Trademark Dilution Act of 1995 (the Dilution Act or Act) has been widely celebrated, as evidenced by the number of related articles, speeches and symposia. Commentators who applauded the adoption of the Dilution Act believed that a dilution claim would now be easier to prove by trademark owners against diluters because trademark owners would not have to establish the troublesome factual issue of consumer confusion. The courts have embraced the Act, and it has already proven to be an effective weapon for trademark owners. One court has even suggested trademark owners asserting claims of dilution …

Some Of Them Still Don't Get It: Hostile Work Environment Litigation In The Lower Courts, Eric Schnapper

Articles

This Article describes how the courts of appeals have decided sexual harassment cases in the five years since Harris v. Forklift Systems, Inc., 510 US 17 (1993). In some circuits, events have unfolded largely as Justice Scalia anticipated: the trier of fact—ordinarily a jury—applies the hostile work environment standard announced in Meritor and elaborated upon in Harris.