Digital Commons Network^™

The David R. Tillinghast Lecture: Taxing International Income: Inadequate Principles, Outdated Concepts, And Unsatisfactory Policies, Michael J. Graetz

Faculty Scholarship

It is a pleasure to be here today to deliver the first David R. Tillinghast Lecture of the 21st century, a lecture honoring a man who has done much to shape and stimulate our thinking about the international tax world of the 20th.

Our nation's system for taxing international income today is largely a creature of the period 1918-1928, a time when the income tax was itself in childhood. From the inception of the income tax (1913 for individuals, 1909 for corporations) until 1918, foreign taxes were deducted like any other business expense. In 1918, the foreign tax credit (FTC) …

Amicus Curiae Brief Of Now Legal Defense And Education Fund And Equal Rights Advocates In Support Of Plaintiff-Appellant And In Support Of Reversal, Katherine M. Franke

Faculty Scholarship

NOW Legal Defense and Education Fund ("NOW LDEF") is a leading national non-profit civil rights organization that performs abroad range of legal and educational services in support of efforts to eliminate sex-based discrimination" and secure equal rights. NOW LDEF was founded in 1970 by leaders of the National Organization for Women as a separate organization. NOW LDEF has appeared as amicus in numerous cases involving sex stereotyping as a form of sex discrimination, including Price Waterhouse v. Hopkins, and Fisher v. Vassar College.

Equal Rights Advocates ("ERA") is one of the oldest public interest law firms specializing in …

Lucas Rosa V. Park West Bank And Trust Company, Katherine M. Franke

Faculty Scholarship

In July of 1998 something rather mundane happened: Lucas Rosa walked into Park West Bank in Holyoke, Massachusetts and asked for a loan application. Since it was a warm summer day, and because she wanted to look credit-worthy, Rosa wore a blousey top over stockings. Suddenly, the mundane transformed into the exceptional: When asked for some identification, Rosa was told that no application would be forthcoming until and unless she went home, changed her clothes and returned attired in more traditionally masculine/male clothing. Rosa, a biological male who identifies herself as female was, it seems, denied a loan application on …

Guns, Crime, And Punishment In America, Bernard E. Harcourt

Faculty Scholarship

There are over 200 million firearms in private hands in the United States, more than a third of which are handguns. In 1993 alone, it is estimated that 1.3 million victims of serious violent crime faced an offender with a gun. In 1999, there were approximately 563,000 such victims. Estimates of defensive uses of firearms – situations where individuals used a gun to protect themselves, someone else, or their property – range from 65,000 to 2.5 million per year. Punishments for crimes committed with a firearm are severe: under the federal firearms enhancement statute, the mandatory minimum sentence for use …

Divorce, Children's Welfare, And The Culture Wars, Elizabeth S. Scott

Faculty Scholarship

Are children harmed when their parents divorce? If so, should parents' freedom to end marriage be restricted? These questions have generated uncertainty and controversy in the decades since legal restraints on divorce have been lifted. During the 1970s and 80s, the traditional conviction that parents should stay together "for the sake of the children" was supplanted by a view that children are usually better off if their unhappy parents divorce. By this account, divorcing parents should simply try to accomplish the change in status with as little disruption to their children's lives as possible. This stance has been challenged sharply …

Multiracial Matrix: The Role Of Race Ideology In The Enforcement Of Antidiscrimination Laws, A United States-Latin America Comparison, Tanya K. Hernandez

Faculty Scholarship

This Article examines the role of race ideology in the enforcement of antidiscrimination laws. Professor Hernandez demonstrates the ways in which the U.S. race ideology is slowly starting to resemble the race ideology of much of Latin America. The evolving U.S. race ideology is a multiracial matrix made up of four precepts: (1) racial mixture and diverse racial demography will resolve racial problems; (2) fluid racial classification schemes are an indicator of racial progress and the colorblind abolition of racial classifications an indicator of absolute racial harmony; (3) racism is solely a phenomenon of aberrant racist individuals; and (4) focusing …

Soul For Sale: An Empirical Study Of Associate Satisfaction, Law Firm Culture, And The Effects Of Billable Hour Requirements, Susan Saab Fortney

Faculty Scholarship

This article analyzes the results of an empirical study to illustrate the effect of billable hour requirements on associate satisfaction and law firm culture. Part I briefly describes the survey design and the general profile of the survey respondents. Part II discusses current billing practices and pressures analyzing the study results related to billing expectations and guidance as well as firm culture and work alternatives. Using findings from the study, Part III considers the detrimental micro and macro effects of increasing billable hour expectations. Part IV proposes various steps and measures that can be taken to address the negative consequences …

Intergenerational Community Schools: A New Practice For A New Time, Peter J. Whitehouse

Faculty Scholarship

This article outlines the concept and initial implementation of an intergenerational learning community (ILC), a new charter school concept, and reviews relevant literature. We discuss the mission, curriculum, educational design, philosophy, and lessons learned from initial implementation of The Intergenerational School (TIS). Such multiage communities of learners represent a conceptual and organizational response to the challenges that rapid cultural and environmental change and resultant alienation are posing for human societies. © 2000 Taylor and Francis Group, LLC.

The Floodgates Of Strict Liability: Bursting Reservoirs And The Adoption Of Fletcher V. Rylands In The Guided Age, Jed Handelsman Shugerman

Faculty Scholarship

Part I presents an overview of Rylands v. Fletcher and then discusses the phases of the American response: the initial acceptance; the Northeastern rejections in the 1870s, which have been the basis for the erroneous scholarly conclusions; and the overlooked tide of acceptances across the country, beginning in the late 1880s and increasing in the 1890s. Part II places this wave of acceptance in its historical context of changing social forces, although these brief sketches are not the primary emphasis of this Note. First, during a period of rapid urbanization, a small number of courts sought to protect residential areas …

2000 Survey Of Florida Law: Real Property, Ronald B. Brown, Joseph M. Grohman

Faculty Scholarship

No abstract provided.

From Pirates To Partners: Protecting Intellectual Property In China In The Twenty-First Century, Peter K. Yu

Faculty Scholarship

During the late 1980s and early 1990s, the United States repeatedly threatened China with a series of economic sanctions, trade wars, non-renewal of most-favored-nation status, and opposition to entry into the World Trade Organization. Such threats eventually led to compromises by the Chinese government and the signing of intellectual property agreements in 1992, 1995, and 1996. Despite these agreements, intellectual property piracy remains rampant in China.

Although China initially had serious concerns about the United States's threats of trade sanctions, the constant use of such threats by the U.S. government has led China to change its reaction and approach. By …

On Equality, Bias Crimes, And Just Deserts, Kenneth Simons

Faculty Scholarship

In a recent article, Professors Alon Harel and Gideon Parchomovsky propose to widen the focus of criminal law beyond the culpability of the offender and the wrongdoing he commits. Criminal law, they believe, should also encompass the state's special egalitarian duty to protect the interests of the most vulnerable victims of crime. They offer this suggestion for two reasons - to give a convincing justification of bias crime legislation, which they claim a retributivist approach cannot do; and, more broadly, to remedy retributivism's supposedly inadequate attention to the interests of crime victims.

Although these egalitarian goals are worthy, the authors' …

Principled Standard Setting Requires Consideration Of More Than Science (Aei-Brookings Joint Center For Regulatory Studies, Brief 00-02) Brief Amicus Curiae In Support Of Respondents, Browner V. American Trucking Associations, Inc., No. 99-1257, (U.S. September 11, 2000)(With 20 Law Professors, Economists, And Scientists), Jonathan B. Wiener, Cary Coglianese, Gary Marchant

Faculty Scholarship

Summary of Argument: Throughout this proceeding, EPA has identified no policy or normative criteria to justify its NAAQS standards, thus suggesting that science alone can be used to determine the appropriate air quality standard. Science plays a critical, indeed essential, role in evaluating the risks of possible air quality standards being considered for adoption by EPA. However, science by itself cannot provide the justification for selecting a particular air quality standard. Especially in setting standards for non-threshold pollutants, such as in this case, scientific evidence cannot alone indicate where the standard should be set, since any level above zero will …

What Recourse?—Liability For Managed Care Decisions And The Employee Retirement Income Security Act, Wendy K. Mariner

Faculty Scholarship

Should managed-care organizations be accountable to patients injured by the company's negligence or wrongdoing? The general rule is that all organizations, including managed-care organizations, are legally liable for causing personal injury as a result of their own negligence or the negligence of their employees or agents.1-4 However, as most observers of the U.S. health care system know by now, there is an exception to this basic legal rule of accountability. The Employee Retirement Income Security Act of 1974 (ERISA) has been interpreted to grant health benefit plans provided by employers or unions (and the managed-care organizations that sell or …

Global Finance And The International Monetary Fund's Neoliberal Agenda: The Threat To The Employment, Ethnic Identity, And Cultural Pluralism Of Latina/O Communities, Timothy A. Canova

Faculty Scholarship

This Article places recent Lat-Crit scholarship in an institutional and inter-disciplinary context. It serves not just as an indictment of the International Monetary Fund (IMF) agenda of structural adjustment and liberalization. It also questions the positioning of Lat-Crit scholars to remain silent or complicit with the IMF's agenda. Canova provides a counter-narrative that is rich in historical revisionism, heterodox economics, and sociological conclusions. His recognition of the global unemployment crisis - made largely invisible by orthodox economics and flawed government measurements - is combined with existential insights about the nature of underemployment on the formation of individual identity and cultural …

Liability Without Cause? Further Ruminations On Cause-In-Fact As Applied To Handgun Liability, Aaron Twerski, A. J. Sebok

Faculty Scholarship

No abstract provided.

Shedding A Little Light On A Well-Kept Secret, Malinda L. Seymore

Faculty Scholarship

No abstract provided.

Children In Poverty: In Search Of State And Federal Constitutional Protections In The Wake Of Welfare Reforms, April Land

Faculty Scholarship

The elimination of the federal entitlement to welfare and the shifting of essential policy making to states raises serious questions about the procedural due process rights of people in poverty. It also changes the focus of the legal battleground for welfare families, bringing important state constitutional issues into focus across the nation. Overall, the Article emphasizes that in exploring the potential constitutional protections for families in poverty, it will be important to focus on the detrimental effects that welfare reforms have on children. By emphasizing the impact that welfare cuts have on children, it may be possible to provide a …

Foreword: Legal And Constitutional Implications Of The Calls To Revive Civil Society, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

This symposium addresses legal and constitutional implications of the calls to revive or renew civil society (a realm between the individual and the state, including the family and religious, civic, and other voluntary associations). The erosion or disappearance of civil society is a common diagnosis of what underlies civic and moral decline in America, and its renewal features prominently as a cure for such decline. To date, there has been a great deal of discussion of civil society and proposals for its revival or renewal, but not enough discussion of legal and constitutional implications of such proposals. This symposium seeks …

Some Questions For Civil Society-Revivalists, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

The Article raises some questions for proponents of reviving civil society as a cure for many of our nation's political, civic, and moral ills (whom McClain and Fleming designate as "civil society-revivalists"). How does civil society serve as "seedbeds of virtue" and foster self-government? Have liberal conceptions of the person corroded civil society and undermined self-government? Does the revivalists' focus on the family focus on the right problems? Have gains in equality and liberty caused the decline of civil society? Should we revive civil society or "a civil society"? Would a revitalized civil society support democratic self-government or supplant it? …

Regulating Research With Decisionally Impaired Individuals: Are We Making Progress?, Diane E. Hoffmann, Jack Schwartz, Evan G. Derenzo

Faculty Scholarship

No abstract provided.

The Paradox Of Free Market Democracy: Rethinking Development Policy, Amy L. Chua

Faculty Scholarship

No abstract provided.

Intuition And Technology In Product Design Litigation: An Essay On Proximate Causation, Aaron Twerski, J. A. Henderson

Faculty Scholarship

No abstract provided.

Paradox Of Family Privacy, David D. Meyer

Faculty Scholarship

No abstract provided.

American Lawyers And International Competence, Charlotte Ku, Christopher J. Borgen

Faculty Scholarship

Lawyers trained in U.S. law schools learn that the Constitution gives Congress the power "[t]o define and punish... offenses against the Law of Nations." Some might also be able to cite the oft-quoted dicta from the Supreme Court's decision in The Paquete Habana that "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination." But what does this mean for today's practitioner? One century after Paquete Habana, we ask what is international law, …

Wrongful Death: Oklahoma Supreme Court Replaces Viability Standard With "Live Birth" Standard, Fatma Marouf

Faculty Scholarship

Since the United States Supreme Court decision of Roe v. Wade, the line of viability for human fetuses has been consistently pushed back to earlier and earlier gestational ages. Granting "person" status to a nonviable fetus, even if only for purposes of the wrongful death statute, as the Oklahoma Supreme Court did in Nealis v. Baird, represents an important expansion of fetal rights. Although the court explicitly limited its decision to nonviable fetuses born alive, Judge Opala conceded that much of his opinion could apply equally to stillborn fetuses. The court's decision in Nealis raises important questions about …

Law Making For The Baby Making: An Interpretive Approach To The Determination Of Legal Parentage, Marsha Garrison

Faculty Scholarship

No abstract provided.

Financial Liberalization, International Monetary Dis/Order, And The Neoliberal State, Timothy A. Canova

Faculty Scholarship

This article started as a plenary paper that was presented to the annual International Economic Law conference of the American Society of International Law. The conference itself posed the question of whether the new international economic order was leading to greater peace, stability, fairness and justice. At a time when American post-Cold War triumphalism was perhaps at its zenith, Canova answered with an unequivocal indictment of the global order for failing to deliver peace or justice. The first part of the article critiques the international monetary system, and argues that the primary negative consequence of capital liberalization is the undermining …

Collegiality And Collaboration In The Age Of Exclusivity, Lawrence M. Sung

Faculty Scholarship

No abstract provided.

The Corruption Of Civic Environmentalism, Rena I. Steinzor

Faculty Scholarship

No abstract provided.