Digital Commons Network^™

Judicial Takings: Musings On Stop The Beach, James E. Krier

Articles

Judicial takings weren’t much talked about until a few years ago, when the Stop the Beach case made them suddenly salient. The case arose from a Florida statute, enacted in 1961, that authorizes public restoration of eroded beaches by adding sand to widen them seaward. Under the statute, the state has title to any new dry land resulting from restored beaches, meaning that waterfront owners whose land had previously extended to the mean high-tide line end up with public beaches between their land and the water. This, the owners claimed, resulted in a taking of their property, more particularly their …

How Serious Is The Problem Of Base Erosion And Profit Shifting?, James R. Hines Jr.

Articles

In recent years, the problem of base erosion and profit shifting (BEPS) by multinational corporations has entered the public consciousness as a potentially important impediment to tax collections. The purpose of this article is to identify the nature of BEPS, consider empirical evidence of its magnitude, and evaluate proposed policy responses. There is considerable evidence that multinational firms arrange their affairs in a tax-sensitive manner, from which it is easy—indeed, perhaps a little too easy—to infer that beps is a serious problem. There are journalistic accounts of apparently spectacular international tax-avoidance schemes used by multinational corporations, though these stories commonly …

Corporate Taxation And Corporate Social Responsibility, Reuven S. Avi-Yonah

Articles

This Article will address the question of whether publicly traded U.S. corporations owe a duty to their shareholders to minimize their corporate tax burden through any legal means, or if instead, strategic behaviors like aggressive tax-motivated transactions are inconsistent with corporate social responsibility (“CSR”). I believe the latter holds true, regardless of one’s view of the corporation. Under the “artificial entity” view, such behavior undermines the constitutive relationship between the corporation and the state. Under the “real view,” such behavior runs contrary to the normal obligation of citizens to comply with the law (even absent effective enforcement). And under the …

Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos

Articles

Most lawyers, law professors, and judges are familiar with two standard critiques of formalism in legal reasoning. One is the unacknowledged-policymaking critique. This critique argues that formalist reasoning purports to be above judicial policymaking but instead simply hides the policy decisions offstage. The other is the false-determinacy critique. This critique observes that formalist reasoning purports to reduce decision costs in the run of cases by sorting cases into defined categories, but argues that instead of going away the difficult questions of application migrate to the choice of the category in which to place a particular case.

Hobby Lobby And The Pathology Of Citizens United, Ellen D. Katz

Articles

Four years ago, Citizens United v. Federal Election Commission held that for-profit corporations possess a First Amendment right to make independent campaign expenditures. In so doing, the United States Supreme Court invited speculation that such corporations might possess other First Amendment rights as well. The petitioners in Conestoga Wood Specialties Corp. v. Sebelius are now arguing that for-profit corporations are among the intended beneficiaries of the Free Exercise Clause and, along with the respondents in Sebelius v. Hobby Lobby Stores, that they also qualify as “persons” under the Religious Freedom Restoration Act (RFRA). Neither suggestion follows inexorably from Citizens United, …

Prosecutorial Discretion And Environmental Crime, David M. Uhlmann

Articles

Prosecutorial discretion exists throughout the criminal justice system but plays a particularly significant role for environmental crime. Congress made few distinctions under the environmental laws between acts that could result in criminal, civil, or administrative enforcement. As a result, there has been uncertainty about which environmental violations will result in criminal enforcement and persistent claims about the overcriminalization of environmental violations. To address these concerns — and to delineate an appropriate role for criminal enforcement in the environmental regulatory scheme — I have proposed that prosecutors should reserve criminal enforcement for violations that involve one or more of the following …

Uniform Asymptotics For The Tail Probability Of Weighted Sums With Heavy Tails, Chenhua Zhang

Faculty Publications

This paper studies the tail probability of weighted sums of the form ∑i=1nciXi, where random variables X i's are either independent or pairwise quasi-asymptotically independent with heavy tails. Using the idea of uniform long-tailedness, the uniform asymptotic equivalence of the tail probabilities of ∑i=1nciXi, max1≤k≤n∑i=1kciXi and ∑i=1nciXi+ is established, where X i's are independent and follow the long-tailed distribution, and c i's take value in a broad interval. Some further uniform asymptotic results for the weighted sums of X i's with dominated varying tails are obtained. An application to the ruin probability in a discrete-time insurance risk model is presented. …

The Ftc And Privacy And Security Duties For The Cloud, Daniel J. Solove, Woodrow Hartzog

Faculty Scholarship

Third-party data service providers, especially providers of cloud computing services, present unique and difficult privacy and data security challenges. While many companies that directly collect data from consumers are bound by the promises they make to individuals in their privacy policies, cloud service providers are usually not a part of this arrangement. It is not entirely clear what, if any, obligations cloud service providers have to protect the data of individuals with whom they have no contractual relationship. This problem is especially acute because many institutions sharing personal data with cloud service providers fail to include significant privacy and security …

Space Madness: Subsidies And Economic Substance, Steven A. Dean

Faculty Scholarship

Extending the reach of the recently codified economic substance doctrine to embrace transactions spurred by tax subsidies would help both Congress and taxpayers promote worthy objectives such as historic preservation and the production of renewable energy. Congress-or quite possibly the courts-could use losses as the lynchpin of an economic substance doctrine for subsidized transactions.

Taxation Of Series Llcs In Texas: Bigger Isn't Always Better In The Lone Star State., Alyson Outenreath

St. Mary's Law Journal

Series Limited Liability Companies (series LLCs) are not yet widely popular as an entity of choice; but just as it took many years for traditional LLCs to become widely used, there could also come a day when series LLCs are the “go-to” entity of choice. One development in the law that will aid in this process is greater certainty in state taxation of series LLCs. Texas has provided some guidance with respect to the taxation of series LLCs for Texas franchise tax purposes after the comptroller’s issuance of Comptroller Private Letter Ruling 201005184L. In this ruling, the comptroller concluded that …

Power Play: An Examination Of Texas's Anti-Slapp Statute And Its Protection Of Free Speech Through Accelerated Dismissal., Dena M. Richardson

St. Mary's Law Journal

Abstract Forthcoming.

The Texas Anti-Indemnity Act., Taylor R. Beaver

St. Mary's Law Journal

Owners, general contractors, and subcontractors enter into agreements to ameliorate risk amongst those exercising control. Some of these include hold-harmless agreements, indemnity agreements, releases, and agreements conferring additional insured status to others. Typically, parties enjoy freedom to contract as they wish. Texas has long recognized, as a matter of public policy, a party’s right to draft contracts however it sees fit. Historically, risk-shifting agreements were enforceable if they passed the fair notice requirements, meaning the express negligence rule and the conspicuousness test. The trend in recent years, however, has been to limit exculpatory clauses. In 2011, the Texas Legislature effectively …

Texas Remedies In Equity For Breach Of Fiduciary Duty: Disgorgement, Forfeiture, And Fracturing., George P. Roach

St. Mary's Law Journal

The remedy of fee forfeiture against lawyer fiduciaries has been marginalized. Following Burrow v. Arce, Texas trial courts have frequently applied a no-fracturing rule that effectively bars a claim for breach of fiduciary duty against an attorney. Although the court in Burrow held actual damages were not a prerequisite for fee forfeiture, many Texas trial courts have not followed that precedent. Most Texas trial courts require the plaintiff to prove actual damages to survive a summary judgment motion. Others have openly asserted that not all legitimate claims for breach of fiduciary duty should be allowed as an alternative claim to …

The Dual Role Of A Chief Justice., Catherine Stone

St. Mary's Law Journal

Notwithstanding the growing trend of high-dollar judicial election campaigns, many citizens do not know what appellate judges and appellate courts do. Faced with the reality of obscurity and the ever-present potential of failed reelection campaigns, appellate judges work each day to fulfill the mission of appellate courts: to efficiently resolve the legal disputes presented in appeals from lower court decisions with written opinions that are well reasoned, thoroughly researched, and intellectually honest. It is the responsibility of the Chief Justice to promote that core mission with all justices on the court, thereby working to best serve the legal needs of …

The Aftermath Of Mexico's Fuel-Theft Epidemic: Examining The Texas Black Market And The Conspiracy To Trade In Stolen Condensate., Luke B. Reinhart

St. Mary's Law Journal

Organized crime has infiltrated the oil patch, creating a theft network with an annual value of $2–$4 billion. Over the past decade, Mexican drug cartels have plundered mass amounts of natural gas condensate produced by Petróleos Mexicanos (Pemex)—the governing Mexican agency for production and export of hydrocarbons. The Mexican government has not sat by idly. Pemex’s production losses have skyrocketed from $300 million, between 2006 and 2011, to an estimated $585 million in 2013 alone. Considering derivative costs associated with these thefts, Pemex’s annual losses reach into the billions. Diversified and driven by profits derived from the United States black …

The Extraterritorial Application Of The Fifth Amendment: A Need For Expanded Constitutional Protections., Guinevere E. Moore, Robert T. Moore

St. Mary's Law Journal

Since 2010, there have been forty-three cases—and ten deaths—involving the use of deadly force by United States agents against Mexican nationals along the border. Currently, the official policy is that officers may still use deadly force where they “reasonably believe”—based upon the totality of the circumstances—that they are in “imminent danger” of death or serious injury. Officers were found reasonable in using deadly force in situations as mundane as young boys throwing rocks. In light of these actions, the Mexican government has raised serious concerns about the disproportionate use of force by United States agents. The question now raised is …

In Pursuit Of Just Compensation In Texas: Assessing Damages In Takings Cases Using The Property's Tax-Appraised Value., Alexander B. Lutzky

St. Mary's Law Journal

Abstract Forthcoming.

An Insight Into The Microbiome Of The Amblyomma Maculatum(Acari: Ixodidae), Khemraj Budachetri, Rebecca E. Browning, Steven W. Adamson, Scot E. Dowd, Chien-Chung Chao, Wei-Mei Ching, Shahid Karim

Faculty Publications

The aim of this study was to survey the bacterial diversity of Amblyomma maculatum Koch, 1844, and characterize its infection with Rickettsia parkeri. Pyrosequencing of the bacterial 16S rRNA was used to determine the total bacterial population in A. maculatum. Pyrosequencing analysis identified Rickettsia in A. maculatum midguts, salivary glands, and saliva, which indicates successful trafficking in the arthropod vector. The identity of Rickettsia spp. was determined based on sequencing the rickettsial outer membrane protein A (rompA) gene. The sequence homology search revealed the presence of R. parkeri, Rickettsia amblyommii, and Rickettsia endosymbiont of …

Live And Let Die: Puerto Rico — The Unincorporated Jewel Of The Caribbean, Emmanuel Hiram Arnaud

Faculty Scholarship

Puerto Rico is a commonwealth of the United States. However, the ambiguous meaning of that phrase has allowed for inconsistent treatment of Puerto Rico by the Supreme Court of the United States. This short article briefly tackles the manner in which the federal government most recently applied the federal death penalty to Puerto Rico despite the island's constitutional ban against capital punishment.

Book Review: Fact And Fiction: The Hanging Judge By Michael Ponsor, Tigran W. Eldred

Faculty Scholarship

This essay reviews the debut novel by senior federal judge Michael Ponsor, a tale of the first death penalty case to occur in Massachusetts in more than 50 years.

The Golden Or Bronze Age Of Judicial Selection?, Jed Handelsman Shugerman

Faculty Scholarship

In The Politics of Early Justice, Michael Gerhardt and Michael Stein convincingly undercut the conventional wisdom that there was a "golden age" of federal judicial selection in the early 1gth century: an era of merit-based, non-partisan nominations and deferential confirmations by the Senate., Their research is laudably thorough and groundbreaking, and it will serve as an important starting point for scholars and policymakers studying the history of federal judicial selection. Now that Gerhardt and Stein have uncovered and organized the comprehensive record of early federal judicial appointments, the question is how to interpret this wealth of new information.

This …

Examining Ipo Success In The Emerging Growth Enterprise Market Of China, Hai Long, Zhaoyong Zhang

Research outputs 2014 to 2021

Adopting a sample of the initial 243 IPOs from the emerging Growth Enterprise Market of China (GEMC) over the 2009 to 2011 period, this study develops a regression model to investigate the relationships between these factors and suggests that the firm’s net profit and its growth rate substantively determine the IPO volume. In addition, this study adopts probit models to test the influence of the four factors on IPO likelihood, and shows that: 1) fundraising amount, as one of the most significant IPO determinants, is positively associated with IPO probability on the new listing market; 2) the net profit, as …

Authentic Assessment Of Reflection In An Eportfolio: How To Make Reflection More Real For Students, Pauline Roberts, Helen Farley, Sue Gregory

Research outputs 2014 to 2021

In a doctoral study that focused on the enhancement of reflection through an ePortfolio-based learning environment, students’ indicated that they felt reflection was not real when it was used for assessment. This led to an examination of assessment practices linked to reflection and ways to make it authentic. The literature revealed that reflection is often a component of authentic assessment rather than being a focus of it. The practices associated with the assessment of reflection are examined in order to formulate 4 guiding principles. These principles aim to make the process of reflection more ‘real’ to students in higher education …

An Artificial Neural Network For Predicting Crops Yield In Nepal, Tirtha Ranjeet, Leisa Armstrong

Research outputs 2014 to 2021

This paper examines the application of artificial neural networks (ANNs) for predicting crop yields for an agricultural region in Nepal. The neural network algorithm has become an effective data mining tool and the outcome produced by this algorithm is considered to be less error prone than other computer science techniques. The backpropagation algorithm which iteratively finds a suitable weight value is considered for computing the error derivative. Agricultural data was collected from thirteen years from paddy field cultivation in the Siraha district, an eastern region in Nepal, and used for this investigation of neural networks. Additionally, climatic parameters including rainfall, …

Interest Rate Risk Of Australian Reits: A Panel Analysis, Jaime L. Yong, Abhay Singh

Research outputs 2014 to 2021

Management structures of many Australian REITs have shifted towards internal property management since 2001. Sector returns have been rewarding until the Global Financial Crisis, but rising costs of debt and years of aggressive borrowing have eroded REIT values. Externally managed trusts had relatively higher levels of debt than internally managed counterparts thus increasing the sensitivities to interest rate risks. Yet internally managed REITs engage in a wider set of operating activities which compound market and financial risks. This study uses panel and panel quantile regressions to examine the joint impact of financial leverage and management structure on REIT returns in …

Illegitimate, Helen V. Bonavita, Lelia Green

Research outputs 2014 to 2021

No abstract provided.

An Empirical Method For Materiality: Would Conflict Of Interest Disclosures Change Patient Decisions?, Roy Spece, David Yokum, Andrea-Gale Okoro, Christopher Robertson

Faculty Scholarship

The law has long been concerned with the agency problems that arise when advisors, such as attorneys or physicians, put themselves in financial relationships that create conflicts of interest. If the financial relationship is “material” to the transactions proposed by the advisor, then non-disclosure of that information may be pertinent to claims of malpractice, informed consent, and even fraud, as well as to professional discipline. In these sorts of cases, materiality is closely related to the question of causation, roughly turning on whether the withheld information might have changed the decision of a reasonable advisee (i.e., patient). The injured plaintiff …

When Truth Cannot Be Presumed: The Regulation Of Drug Promotion Under An Expanding First Amendment, Christopher Robertson

Faculty Scholarship

The Food, Drug, and Cosmetic Act (FDCA) requires that, prior to marketing a drug, the manufacturer must prove that it is safe and effective for the manufacturer’s intended uses, as shown on the proposed label. Nonetheless, physicians may prescribe drugs for other “off-label” uses, and often do so. Still, manufacturers have not been allowed to promote the unproven uses in advertisements or sales pitches.

This regime is now precarious due to an onslaught of scholarly critiques, a series of Supreme Court decisions that enlarge the First Amendment, and a landmark court of appeals decision holding that the First Amendment precludes …

An Empirical Method For Harmless Error, D. Alex Winkelman, David V. Yokum, Lisette C. Cole, Shelby C. Thompson, Christopher Robertson

Faculty Scholarship

Trials are often imperfect. When inadmissible evidence is introduced or the jury is incorrectly instructed, judges must determine whether the error was prejudicial or merely harmless. In making that assessment, judges resort to speculation about the counterfactual question of whether the error changed the outcome, compared to the decision of a properly informed and instructed jury. These decisions are likely colored by confirmation and status quo biases, along with “mental contamination” of the error itself. Even when appellate judges perform these analyses accurately, their decisions appear conclusory. Scholars and judges have roundly criticized this doctrine, but no solution has emerged. …

The Trees, My Lungs: Self Psychology And The Natural World At An American Buddhist Center, Daniel S. Capper

Faculty Publications

This study employs ethnographic field data to trace a dialogue between the self psychological concept of the selfobject and experiences regarding the concept of “interbeing” at a Vietnamese Buddhist monastery in the United States. The dialogue develops an understanding of human experiences with the nonhuman natural world which are tensive, liminal, and nondual. From the dialogue I find that the selfobject concept, when applied to this form of Buddhism, must be inclusive enough to embrace relationships with animals, stones, and other natural forms. The dialogue further delineates a self psychological methodology for examining religions in their interactions with natural forms.