Law Commons^™

Archcity Defenders: Municipal Courts White Paper, Thomas Harvey, John Mcannar, Michael-John Voss, Megan Conn, Sean Janda, Sophia Keskey

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ArchCity Defenders represents St. Louis' indigent on a pro bono basis in criminal and civil legal matters while working closely with social service providers to connect clients with services. Our primary goal is to remove the legal barriers preventing our clients from accessing the housing, job training, and treatment they need to get on with their lives.

In the five years we have been doing this work, we have primarily focused on representation in the municipal courts that have jurisdiction over infractions for mostly traffic-related offenses. Our direct representation of clients in these courts and the stories they shared of …

Introduction To The Micro-­‐‑Symposium On Scalia & Garner's “Reading Law”:The Textualist Technician, Karen Petroski

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Recently, the Green Bag issued a call for short (1,000 words) essays on Reading Law: The Interpretation of Legal Texts, by Antonin Scalia and Bryan Garner. We sought “[a]ny theoretical, empirical, or practical commentary that will help readers better understand the book.” The result is this micro-symposium. Our call drew dozens of micro-essays, some thought-provoking, some chuckle-prompting, and some both. Blessed with an abundance of good work but cursed by a shortage of space, we were compelled to select a small set – representative and excellent – of those essays to publish in the Green Bag and its sibling publication, …

Collaboration In The Nonprofit Sector, Dana M. Malkus

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A practitioner who has had even casual contact with the nonprofit sector has undoubtedly noticed that both internal and external forces exert pressure on nonprofits to collaborate and to accomplish more with fewer resources. There are, of course, many factors driving this pressure, including the economic downturn, funder preferences, government policy changes, and the reality that many nonprofits focus on complicated issues that often require a multi-faceted approach.

In my work with the St. Louis nonprofit community, I see nonprofits grappling with this reality in a variety of ways. As practitioners, we can provide real value to our nonprofit clients …

Financing Elections And 'Appearance Of Corruption': Citizen Attitudes And Behavior In 2012, Molly J. Walker Wilson

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As political spending reaches new highs in the 2012 election cycle, and as the controversy surrounding wealthy donors and interest groups grows, polls demonstrate a surge of cynicism among Americans who profess a belief that the American political system is corrupt. The Supreme Court’s 2010 decision in Citizens United made possible the most recent expansion of political spending. In this case, the question was whether allowing corporations and unions to spend unlimited amounts of money on political advertising would result in corruption or the appearance of corruption. The majority on the Court determined that it would not. Many observers have …

To Count And Be Counted: A Response To Professor Levinson, Marcia L. Mccormick

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This Essay deepens the discussion Professor Levinson began in his lecture for the Richard J. Childress Memorial Lecture at SLU Law, Who Counts?. Professor Levinson explored the question of who counts as a member of the US community, and who gets to decide who counts. Inevitably, given our history of exclusion on the basis of race and sex, questions about belonging and race and sex form a central part of the current debate. Labeling a person with a race and sex presupposes the questions of what makes a person a certain race or sex? This essay explores what identity …

A Lawyer Looks At Civil Disobedience: How Lewis F. Powell, Jr. Reframed The Civil Rights Revolution, Anders Walker

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This essay reconstructs Lewis F. Powell, Jr.’s thoughts on the civil rights movement by focusing on a series of little-known speeches that he delivered in the 1960s lamenting the practice of civil disobedience endorsed by Martin Luther King, Jr. Convinced that the law had done all it could for blacks, Powell took issue with King’s Letter from Birmingham Jail, impugning its invocation of civil disobedience and rejecting its calls for compensatory justice to make up for slavery and Jim Crow. Dismissive of reparations, Powell developed a separate basis for supporting diversity that hinged on distinguishing American pluralism from Soviet totalitarianism. …

Diplomacy And Its Others: The Case Of Comfort Women, Monica E. Eppinger, Karen Knop, Annelise Riles

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The “Comfort Women incident,” now at least several decades old, troubles the familiar view of law as a funnel for politics. Viewed as a funnel, the wide range of legal, political, cultural, and diplomatic efforts to seek or resist redress for the system of sexual slavery institutionalized by the Japanese military during the Second World War would be assessed as ultimately pushing in the same direction: toward vindicating human rights. We see in the Comfort Women incident a far more chaotic interaction of law and politics. As critical legal feminist, we are concerned with finding a truthful and ethical way …

Rethinking Trademark Functionality As A Question Of Fact, Yvette Joy Liebesman

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Trade dress functionality stands for a reasonable premise: features which are essential to the use or purpose of an article, which affect the cost or quality of the article, or whose exclusive use would put competitors at a significant non-reputation-related disadvantage, are not protectable as signifiers of source or sponsorship. Functionality has broad implications, as a product’s shape can be its most identifiable feature.

The problems plaguing the functionality doctrine have been examined from a substantive point of view; however until the standard by which functionality is determined is changed, these problems are likely to continue to persist. When adjudicating …

Can Retributivism Be Saved?, Chad Flanders

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Retributive tbeory has long held pride of place among theories of criminal punishment in both philosophy and in law. It has seemed, at various times, either much more intuitive, or rationally persuasive, or simply more normatively right than other theories. But retributive theory is limited, both in theory and practice, and in many of its versions is best conceived not as a theory of punishment in its own right, but instead as shorthand for a set of constraints on the exercise of punishment. Whether some version of retributive theory is a live possibility in the contemporary world remains very much …

Valuation Lessons From Estate Of Adell, Kerry A. Ryan

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In Estate of Adell, the Tax Court determined that the correct value of a decedent’s interest in a closely held corporation was the figure reported on the original estate tax return. The court rejected alternative values as either using the incorrect valuation method or failing to account for the significant value of a key employee’s personal goodwill.

The Law And Economics Of Corporate Social Responsibility And Greenwashing, Miriam A. Cherry

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In this symposium article, I explore the concept of greenwashing in more depth. In the first part of the article, I start with first principles, looking at the origins of greenwashing, its definitions, and identifying theeconomic incentives that lead firms into the practice. The second part of this article examines the legal structure that allows greenwashing to occur, and with it, explores the pervasiveness and extent ofgreenwashing. The third part of this article articulates the harms of greenwashing. Intuitively, greenwashing involves deception, falsity, and hypocrisy that reflexively seem problematic. Precisely identifying the actual harm inflicted by some forms of greenwashing, …

The Model Penal Code And The Dilemma Of Criminal Law Codification In The United States, Stephen C. Thaman

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In this chapter, the author discusses the legal international comparative study of codification. The author draws upon insights gained from the IACL Thematic Conference of 2012.

Analysis Of Incoterms As Usage Under Article 9 Of The Cisg, William P. Johnson

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This Article defines usage, as that term is used in the UN Convention on Contracts for the International Sale of Goods (CISG), in order to consider whether the ICC’s definitions for common delivery terms set forth in the ICC publication Incoterms should be characterized as usage for purposes of the CISG. This Article then describes the misguided approach that to date has been taken by U.S. courts when analyzing the role of Incoterms as usage for contracts governed by the CISG. Finally, this Article proposes a method for proper analysis of Incoterms under the CISG, including the role that Article …

Schedularity In U.S. Income Taxation And Its Effect On Tax Distribution, Henry Ordower

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Income tax systems in some countries follow primarily schedular models that classify income by type, match it with deductions from the same class, and compute a separate tax on each class. The United States income tax uses a global tax model under which it taxes citizens and permanent residents on their worldwide income without regard to source or character. The United States system is not purely global but includes schedular elements. This Article exposes embedded schedularity in the United States income tax in the three principal areas of investment income, personal services income, and tax free income. The Article tests …

Alt-Labor, Secondary Boycotts, And Toward A Labor Organization Bargain, Michael C. Duff

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Recently, workers led by non-union labor advocacy groups, popularly labelled “ALT-Labor,” have been staging strikes and other job actions across the low wage economy. Some observers see this activity as the harbinger of a reinvigorated labor movement or, more generally, as audacious dissent by low wage workers with nothing to lose. Others view the activity cynically as an exercise in futility, a struggle against inexorable market forces that refuse to pay $15 per hour to a fast food or big box retail worker. This article takes a different tack, presuming (implicitly using history as its guide) that employers will respond …

A Eulogy For The Eula, Miriam A. Cherry

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Participants in the Duquesne University Law Review were asked to write about the future of contract law, specifically contract law in 2025. My contribution is a short science fiction story that is set in 2025. Sometimes, conflicting terms in a contract can give you a headache...or a brilliant idea? Expect both theutopian and dystopian from this story, along with contract law theory.

Retreat From Progressive Taxation In The Swedish Welfare State: Does Immigration Matter?, Henry Ordower

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This paper questions whether late twentieth century immigration patterns may have contributed to retreat from progressive taxation in Sweden (and elsewhere). The paper applies critical methodology to ask whether the societal generosity reflected in development of Sweden’s welfare state yielded to greater parsimony as Sweden opened its borders to ethnically and racially diverse groups of immigrants. The paper explores whether Sweden’s loss of societal homogeneity facilitated the development of a political climate in which protecting traditional Scandinavian-owned capital from taxation became acceptable. Social science literature already has detected various unintentional ethnic and gender biases in delivery of welfare services and …

Making Judge-Speak Clear Amidst The Babel Of Lawspeakers, Michael A. Wolff

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This article was prepared as a lecture for the Missouri Law Review 2014 Symposium entitled "The Art, Craft, and Future of Legal Journalism: A Tribute to Anthony Lewis."

Collaboration: Promises And Pitfalls, Dana M. Malkus

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Simply put, collaboration refers to two or more organizations coming together to accomplish a specific goal. It is helpful to think of collaboration as a spectrum: Collaborations range from informal arrangements (e.g., a committee, a task force, a joint initiative, information sharing, joint purchasing arrangements, co-locating arrangements, or program coordination) to more formal arrangements (e.g., the creation of a new entity).

Common reasons for collaborations include

• greater access to certain funding or grant streams;
• access to the expertise of the collaborating organization;
• an ability to increase the human resources that can be devoted to an event or cause;
• access to …

Weather Permitting: Incrementalism, Animus, And The Art Of Forecasting Marriage Equality After U.S. V. Windsor, Jeremiah A. Ho

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Within LGBT rights, the law is abandoning essentialist approaches toward sexual orientation by incrementally de-regulating restrictions on identity expression of sexual minorities. Simultaneously, same-sex marriages are become increasingly recognized on both state and federal levels. This Article examines the Supreme Court’s recent decision, U.S. v. Windsor, as the latest example of these parallel journeys. By overturning DOMA, Windsor normatively revises the previous incrementalist theory for forecasting marriage equality’s progress studied by William Eskridge, Kees Waaldijk, and Yuval Merin. Windsor also represents a moment where the law is abandoning antigay essentialism by using animus-focused jurisprudence for lifting the discrimination against the …

Creating And Teaching A Specialized Legal Research Course: The Benefits And Considerations, Erika Cohn

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This article outlines the author's experience creating and teaching a specialized legal research course. It includes the reasons for offering such a course, tips for selecting a topic and developing a syllabus, getting the course approved, creating student interest, developing a teaching plan, and evaluating the course.

Further Reflections On The Pardoning Power: Reply To Hoskins And Drinan, Chad Flanders

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Galifianakis: "First question. In 2013, you pardoned a turkey. What do you have planned for 2014?"

Obama: "We'll probably pardon another turkey". ¹

First, let me express my gratitude to the incisive comments of Zach Hoskins and Cara Drinan. I have long been a fan of Hoskins' s work, and his forthcoming book on the collateral consequences of punishment promises to be pathbreaking.² The influence of Drinan's scholarship on the pardoning power³ is evident in my original essay⁴ and her newer work on the Graham case has again inspired me in new directions in my research.^{5 …}

Tax Court Sends Message On Valuation In Richmond, Kerry A. Ryan

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In Estate of Helen P. Richmond, the Tax Court determined the proper value for estate tax purposes of a minority interest in a family-owned corporation holding mostly appreciated securities. The court also sustained an accuracy-related penalty against the estate, finding that it used an unsigned draft report by a noncertified appraiser as the basis for the stock valuation reported on Form 706.

Eitc As Income (In)Stability?, Kerry A. Ryan

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Congress enacted the Earned Income Tax Credit (EITC) to entice poor single mothers to work (or work more) as a means of lifting themselves out of poverty. Its design as a wage subsidy that phases out at higher earnings levels is intended to accomplish this goal. A strong labor market is crucial to the success of work-based benefit programs, like the EITC. The EITC can motivate female household heads to work (or work more) but they cannot act on that motivation if no jobs or additional hours exist. This article demonstrates that during economic downturns, the EITC wage subsidy contributes …

Ending The Higher Education Sucker Sale: Toward An Expanded Theory Of Tort Liability For Recruitment Deception, Aaron N. Taylor

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Admissions officers live a dual, often conflicted, existence. In one sense, they are counselors responsible foradvising prospective students. In another sense, they are salespeople with obligations to meet enrollment goals. The pressures fostered by these roles sometimes prompt unscrupulous individuals to use misrepresentations and other forms of deception to induce students to enroll. Unfortunately, students who are induced to enroll based on recruitment deception are afforded few options for redress. The purpose ofthis article is to conceptualize a tort-based solution to this utter inequity. The article proposes a broadening ofnegligent misrepresentation to encompass a new tort-negligent educational recruitment. This tort …

House To House: Mergers, Annexations, & The Racial Implications Of City-County Politics In St. Louis, Anders Walker

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According to most scholars, Jim Crow's death elevated African Americans even as white departures depressed them, condemning blacks to isolated neighborhoods, segregated schools, and crumbling urban cores. To counter such reversals, liberals endorsed the consolidation of urban and suburban zones, hoping that such moves might thwart flight, promote integration, and ameliorate the effects of what scholars began in the 1970s to term “institutional” or “structural” racism. Initially such efforts focused primarily on schools, but quickly expanded to include other types of consolidation as well, including the consolidation, or merger, of major metropolitan areas and surrounding counties. While the rubric of …

Marxist And Soviet Law, Stephen C. Thaman

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This chapter addresses both the Marxist critique of law before the Russian Revolution and the development of the Soviet Law Structure. It discusses the three main trends in Soviet Criminal Law before elucidating how these trends affected the General Part and the Special Part of Soviet Criminal Codes and overall Soviet criminal policy.

Income Imputation: Toward Equal Treatment Of Renters And Owners, Henry Ordower

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This chapter argues that fundamental fairness principles demand changes in U.S. tax law to place those who rent on an equal tax footing with those who own their residences. The disparity in tax treatment of owners and renters results primarily from the failure of the tax law to include the use value from investment of capital in a personal residence in the incomes of owners. While the yield from investment in a personal residence is not cash, the yield is valuable as it replaces an outlay for dwelling use the owner otherwise would have to make. That occupancy right as …

Charitable Contributions Of Services: Charitable Gift Planning For Non-Itemizers, Henry Ordower

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This Article examines the tax treatment of charitable contributions and concludes that contributors who do not itemize their deductions (nonitemizers) should contribute their services to charity whenever possible rather than contributing cash or property. Charitable donees similarly should embrace opportunities to accept and utilize service contributions from their donor bases, give service contributions as much recognition as money or property contributions, and encourage their lower-income donors to render services rather than giving money earned with performance of services. The Article suggests that nonitemizing taxpayers are the donors who have the most “skin in the game” for charitable contributions in terms …

When Is A Change Going To Come?: Separate And Unequal Treatment In Health Care Fifty Years After Title Vi Of The Civil Rights Act Of 1964, Ruqaiijah A. Yearby

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ON June 19, 1963, when the Civil Rights Act was first introduced, President John F. Kennedy said in a message to Congress:

Events of recent weeks have again underlined how deeply our Negro citizens resent the injustice of being arbitrarily denied equal access to those facilities and accommodations, which are otherwise open to the general public. That is a daily insult, which has no place in a country proud of its heritage-- the heritage of the melting pot, of equal rights, of one nation and one people. No one has been barred on account of his race from fighting or …