Law Commons^™

Structural Tax Exceptionalism, James M. Puckett

Journal Articles

This Article argues that it is misleading to declare the death of tax exceptionalism and that structural tax exceptionalism may have important benefits. Part II provides a brief historical overview of the rise of federal agency administration of statutes and especially tax laws. The history trends to detract from anti-tax and anti-agency rhetoric that counsel disempowering the Treasury Department and other administrative agencies from comprehensively enforcing laws and making policy in their relevant domains. Part III analyzes how the Code's structure for tax administration differs from the APA template for administrative agencies. Part IV deconstructs these differences, drawing from general …

Expectant Fathers, Abortion, And Embryos, Dara Purvis

Journal Articles

One thread of abortion criticism, arguing that gender equality requires that men be allowed to terminate legal parental status and obligations, has reinforced the stereotype of men as uninterested in fatherhood. As courts facing disputes over stored pre-embryos weigh the equities of allowing implantation of the pre-embryos, this same gender stereotype has been increasingly incorporated into a legal balancing test, leading to troubling implications for ART and family law.

Trust And Social Commerce, Julia Y. Lee

Journal Articles

Internet commerce has transformed the marketing of goods and services. The separation between point of sale and seller, and the presence of geographically dispersed sellers who do not engage in repeated transactions with the same customers challenge traditional mechanisms for building the trust required for commercial exchanges. In this changing environment, legal rules and institutions play a diminished role in building trust. Instead, new systems and methods are emerging to foster trust in one-shot commercial transactions in cyberspace.

The Article focuses on the rise of “social commerce,” a socio-economic phenomenon centered on the use of social media and other modes …

A Window Into The Soul Of International Arbitration: Arbitrator Selection, Transparency And Stakeholder Interests, Catherine A. Rogers

Journal Articles

New Zealand Law Foundation International Dispute Resolution Lecture 2013, delivered at Stone Lecture Theatre, University of Auckland Faculty of Law, 26 November 2013. This essay derives from that lecture, which considers the important issue of arbitrator selection, appointment and challenge standards and procedures, and introduces the Arbitrator Intelligence project - a proposed solution for informational asymmetries that can affect the fairness of arbitrator selection and appointment.

Do Conservative Justices Favor Wall Street: Ideology And The Supreme Court's Securities Regulation Decisions, Marco Ventoruzzo, Johannes W. Fedderke

Journal Articles

The appointment of Supreme Court justices is a politically-charged process and the "ideology" (or "judicial philosophy") of the nominees is perceived as playing a potentially relevant role in their future decision-making. It is fairly easy to intuit that ideology somehow enters the analysis with respect to politically divisive issues such as abortion and procreative rights, sexual conduct, freedom of speech, separation of church and state, gun control, procedural protections for the accused in criminal cases, governmental powers. Many studies have tackled the question of the relevance of the ideology of the justices or appellate judges on these issues, often finding …

International Arbitration, Judicial Education, And Legal Elites, Catherine A. Rogers

Journal Articles

One potentially devastating critique of investment arbitration is that it undermines or hampers development of national legal institutions. Investment arbitration was originally conceived of as a means of encouraging foreign investment and strengthening rule of law for investment protection. Critics often question whether it actually contributes to either of these goals. If investment arbitration could not deliver on intended goals related to improvements in local legal institutions, it would be disappointing. If, however, investment arbitration not only failed to deliver benefits to, but instead affirmatively undermined, local legal institutions, it would be devastating. While numerous critics have leveled this charge, …

Cell Phones, Brain Cancer, And Scientific Outliers In Murray V. Motorola, David H. Kaye

Journal Articles

Pending before the District of Columbia's highest court in a case asking whether cell phones can cause cancer is whether to replace the jurisdiction's venerable Frye standard for reviewing the admissibility of scientific evidence with the approach adopted by the U.S. Supreme Court in Daubert v. Merrell Dow. The author analyzes one aspect of the two evidentiary standards that leads him to question the trial judge's suggestion in Murray v. Motorola that adopting the Daubert perspective would allow greater leeway in excluding the plaintiff's evidence.

Sentencing Rules And Standards: How We Decide Criminal Punishment, Jacob Schuman

Journal Articles

Over the course of the past 300 years, American sentencing policy has alternated between “determinate” and “indeterminate” systems of deciding punishment. Debates over sentence determinacy have so far focused on three main questions: Who should decide punishment? What makes punishment fair? And why should we punish wrongdoers at all?

In this Article, I ask a new, fourth, question: How should we decide punishment? I show that determinate sentencing uses rules to determine sentences, while indeterminate sentencing relies on standards. Applying this insight to federal sentencing practice, I demonstrate that district court judges “depart” or “vary” from the United States Sentencing …

Probability And Punishment: How To Improve Sentencing By Taking Account Of Probability, Jacob Schuman

Journal Articles

The United States Sentencing Guidelines place little emphasis on probability. Instead, the Guidelines recommend a sentence in each case based only on whether certain facts about the offender’s crime exceed a “threshold” level of likelihood. Guidelines sentences therefore fail to reflect the precise odds of each defendant’s wrongdoing, which makes them both inefficient and unfair. This model of decision-making is particularly problematic in drug sentencing, where judges often impose lengthy sentences based on drug quantity calculations that carry a high risk of error. To address these problems, district courts should exercise their discretion and policymakers should implement reforms that incorporate …

Investment Treaty Arbitration And Its Future -- If Any, Kaj Hobér

Arbitration Law Review

No abstract provided.

Toward A Transnational Law Of Trade Usages?, Fabien Gélinas

Arbitration Law Review

No abstract provided.

Confidentiality In Consumer And Employment Arbitration, Christopher R. Drahozal

Arbitration Law Review

No abstract provided.

What's Law Got To Do With It? Plea Bargaining Reform After Lafler And Frye, Cynthia Alkon

Arbitration Law Review

No abstract provided.

"Start Spreading The News" . . . The Big Apple Gets A Taste Of Mandatory Mediation, Melissa A. Rodriguez

Arbitration Law Review

No abstract provided.

"Who Decides?" The Third Circuit: Class Action Availability Is A Question Of Arbitrability?, Marcus Shand

Arbitration Law Review

No abstract provided.

The Role Of The Courts In The New Justice System, Tania Sourdin

Arbitration Law Review

No abstract provided.

Risk Versus Reward: The Increasing Use Of Third Funders In International Arbitration And The Awarding Security For Costs, Kelsie Massini

Arbitration Law Review

No abstract provided.

Re-Thinking The Federal Arbitration Act § 10: Vacating "Manifest Disregard", Brian Forgue

Arbitration Law Review

No abstract provided.

Lcia's New Rules: Modernization Through Adherence To Traditional Principles Of Arbitration, Shohin Hodizoda-Vance

Arbitration Law Review

No abstract provided.

Roles For Neutrals In Remedying The School Discipline Gap, Stephen S. Worthington

Arbitration Law Review

No abstract provided.

Ethics And Sport Dispute Resolution In Sport: Athletes, Law And Arbitration, Zachary Burley

Arbitration Law Review

No abstract provided.

International Arbitration & Global Governance: Contending Theories And Evidence, Ryan Thomas

Arbitration Law Review

No abstract provided.

Searching For Proportionality In U.S. Administrative Law, Jud Mathews

Contributions to Books

There is no such thing as “proportionality review” in American administrative law, but instead, a number of doctrines that courts deploy to evaluate agency exercises of discretion. In some respects, these frameworks for review resemble proportionality in operation, but there are also notable differences. This essay surveys the doctrines governing judicial review of administrative discretion in the United States, highlighting three distinguishing features of the American approach. First, American judicial review is characterized by a high degree of unpredictability, not only with respect to outcomes, but often with respect to what framework of review is applicable. Second, while classical proportionality …

That's A Wrap: The Ninth Circuit's Failure To Clarify The Enforceability Of Browsewrap And Clickwrap Agreements In Internet Commerce, Ben Colburn

Arbitration Law Review

No abstract provided.

Empty Rhetoric: The Failings Of The Lcia's Ethical Rules For Legal Counsel And Alternatives, Christina Bustos

Arbitration Law Review

No abstract provided.

Mediation's Effects: Test, Don't Guess, James A. Wall, Kyle R. Holley

Arbitration Law Review

No abstract provided.

Special Education Arbitration: "Rightness" As A Matter Of Law And Fact?, Stephen S. Worthington

Arbitration Law Review

No abstract provided.

The Idea Of Arbitration, Zachary Burley

Arbitration Law Review

No abstract provided.