Law Commons^™

When Helpers Hurt: Protecting Taxpayers From Preparers, Michelle Lyon Drumbl

Scholarly Articles

In this article, Drumbl explores return preparer regulation as a policy matter and questions what would be gained by applying Circular 230 to return preparers.

Foreign Investments And The Market For Law, Erin O'Hara O'Connor, Susan D. Franck

Scholarly Articles

In this Article, Professors O’Hara O’Connor and Franck adapt and extend Larry Ribstein’s positive framework for analyzing the role of jurisdictional competition in the law market. Specifically, the authors provide an institutional framework focused on interest group representation that can be used to balance the tensions underlying foreign investment law, including the desire to compete to attract investments and countervailing preferences to retain domestic policymaking discretion. The framework has implications for the respective roles of BITs and investment contracts as well as the inclusion and interpretation of various foreign investment provisions.

Comment On The Proposed Definition Of “Eligible Organization” For Purposes Of Coverage Of Certain Preventative Services Under The Affordable Care Act, Lyman P.Q. Johnson, David K. Millon, Stephen M. Bainbridge, Ronald J. Colombo, Brett Mcdonnell, Alan J. Meese, Nathan B. Oman

Scholarly Articles

In late August 2014, after suffering a defeat in the Supreme Court Hobby Lobby decision when the Court held that business corporations are “persons” that can “exercise religion,” the Department of Health and Human Services (“HHS”) proposed new rules defining “eligible organizations.” Purportedly designed to accommodate the Hobby Lobby ruling, the proposed rules do not comport with the reasoning of that important decision and they unjustifiably seek to permit only a small group of business corporations to be exempt from providing contraceptive coverage on religious grounds. This comment letter to the HHS about its proposed rules makes several theoretical and …

Human Dignity, Crime Prevention, And Mass Incarceration: A Meaningful, Practical Comparison Across Borders, Nora V. Demleitner

Scholarly Articles

Not available.

Outsourcing Corporate Accountability, Kishanthi Parella

Scholarly Articles

This Article addresses the problem of preventing human rights violations abroad that result from the globalization of business. It specifically explores the challenge of improving labor standards in global value chains. The modern business has changed dramatically and has “gone global” in order to court foreign markets and secure resources, including labor. Familiar household names, such as Nike and Apple, have “outsourced” many of their functions to suppliers overseas. As multinational buyers, they dominate one end of the global value chain. At the opposite end of the value chain are the local managers and owners of the factories and workhouses …

Brief Of Professors At Law And Business Schools As Amici Curiae In Support Of Respondents: Omnicare, Inc., Et Al. V. Laborers District Council Construction Industry Pension Fund, Et Al., Celia Taylor, Lyman P.Q. Johnson, J. Robert Brown, Joan Macleod Heminway

Scholarly Articles

None available.

Digital Innocence, Joshua A.T. Fairfield, Erik Luna

Scholarly Articles

Recent revelations have shown that almost all online activity and increasing amounts of offline activity are tracked using Big Data and data mining technologies. The ensuing debate has largely failed to consider an important consequence of mass surveillance: the obligation to provide access to information that might exonerate a criminal defendant. Although information technology can establish innocence—an ability that will only improve with technological advance—the fruits of mass surveillance have been used almost exclusively to convict. To address the imbalance and inform public dialogue, this Article develops the concept of “digital innocence” as a means of leveraging the tools of …

Sentencing Inequality Versus Sentencing Injustice, Melanie D. Wilson

Scholarly Articles

Women lag behind men in pay for equal work and in positions of prestigious employment, such as chief executive officers at Fortune 500 companies and presidents of colleges and universities. Women also suffer conscious and subconscious negative bias from both men and women in positions to evaluate an applicant's capabilities and potential, making it less likely that an employer or mentor will choose a woman instead of a man. In contrast to these and many other contexts, our federal criminal justice system regularly favors women over men. Empirical studies show that this lenient treatment begins with prosecutors and law enforcement …

The State, Parents, Schools, "Culture Wars", And Modern Technologies: Challenges Under The U.N. Convention On The Rights Of A Child, Nora V. Demleitner

Scholarly Articles

This paper focuses on some of the core principles of the U.N. Convention on the Rights of the Child and their application under U.S. state and federal law. While the United States has not ratified the Convention, it is a signatory. Many of the most intractable cultural issues in the United States involve children and their rights to participation, information, and decision-making. Frequently, primary and secondary education presents a fertile battle ground for “cultural clashes” between parents, schools, and state officials. In the private context, both U.S. law and the U.N. Convention have adopted the “best interests of the child” …

Why Lawyers Do What They Do (When Behaving Ethically), James E. Moliterno

Scholarly Articles

Since the early 1990s, when David Wilkins published his influential paper “Who Should Govern Lawyers” in the Harvard Law Review, legal ethics scholars and professors have paid attention to the range of processes and devices that govern lawyer behavior. This Article will report on the results of a study currently underway that seeks to provide empirical evidence to answer the question posed in this Article’s title: Do lawyers train staff in confidentiality preservation because they fear bar discipline? Because they fear malpractice liability? Because they must comply with malpractice liability carrier demands? Because they honor client confidences for their own …

Stratification, Expansion, And Retrenchment: International Legal Education In U.S. Law Schools, Nora V. Demleitner

Scholarly Articles

None available.

Beyond Repeal—A Republican Proposal For Healthcare Reform, Timothy Stoltzfus Jost

Scholarly Articles

Not available.

Germany Vs. Europe: The Principle Of Democracy In German Constitutional Law And The Troubled Future Of European Integration, Russell A. Miller

Scholarly Articles

This Article introduces the Demokratieprinzip. In Part II, I begin by more fully documenting the Euro-skeptical turn in Germany's relationship with Europe, paying particular attention to the central role played by the Constitutional Court's interpretation of the Demokratieprinzip. Part III, in four subparts, provides a doctrinal introduction to the principle of democracy. First, I map the principle's bases in the text of the German Grundgesetz (Basic Law or Constitution). Second, I present the gloss the Constitutional Court has given the principle, making special reference to the Court's recent decisions involving challenges to Germany's participation in measures seeking to advance European …

Curricular Limitations, Cost Pressures, And Stratification In Legal Education: Are Bold Reforms In Short Supply?, Nora V. Demleitner

Scholarly Articles

Many critics of legal education and reformers alike demand "bold reforms," though so far most change seems restricted to haphazard modifications of the curriculum, the hope for quick fixes, and a focus on shedding staff and faculty to balance budgets with a smaller student body. Whether those changes alone amount to bold action, defined as "not afraid of danger or difficult situations; showing or needing confidence or lack of fear; very confident in a way that may seem rude or foolish," is questionable. Curricular changes may merely camouflage or even detract from the crucial need to strategically rethink cost structures, …

Ethics 20/20 Successfully Achieved Its Mission: It "Protected, Preserved, And Maintained", James E. Moliterno

Scholarly Articles

The legal profession tends to look inward and backward when faced with crisis and uncertainty. The legal profession could make greater advances by looking outward and forward to find in society and culture the causes of and connections with the legal profession’s crises. Doing so would allow the profession to grow with society, solve problems with rather than against the flow of society, and be more attuned to the society the profession claims to serve.

And Now A Crisis In Legal Education, James E. Moliterno

Scholarly Articles

The current crisis in legal education coincides with a crisis in the practice of law. Law practice has changed as a result of technology, globalization, and economic pressures. The market for legal education's product, law graduates, have diminished. Law schools cannot remain the same in this environment. Except for a very small number of elite schools, those that do not adjust are at serious risk of failing.

An economic change has taken place against a system in which mostly corporate clients willingly paid for the training of beginners at major law firms. Law firms could absorb those costs if partners …

Transactionalism Costs, Alan M. Trammell

Scholarly Articles

Modern civil litigation is organized around the “transaction or occurrence,” a simple and fluid concept that brings together logically related claims in one lawsuit. It was a brilliant innovation a century ago, but its time has passed. Two inherent defects always lurked within transactionalism, but modern litigation realities have exacerbated them. First, transactionalism represents a crude estimate about the most efficient structure of a lawsuit. Often that estimate turns out to be wrong. Second, the goals of transactionalism are in tension. To function properly, the transactional approach must be simultaneously flexible (when structuring a lawsuit at the beginning of litigation) …

Toil And Trouble: How The Erie Doctrine Became Structurally Incoherent (And How Congress Can Fix It), Alan M. Trammell

Scholarly Articles

The Erie doctrine is still a minefield. It has long been a source of frustration for scholars and students, and recent case law has exacerbated the troubles. Although other scholars have noted and criticized these developments, this Article explores a deeper systemic problem that remains undeveloped in the literature. In its present form, the Erie doctrine fails to protect any coherent vision of the structural interests that supposedly are at its core—federalism, separation of powers, and equality.

This Article argues that Congress has the power to fix nearly all of these problems. Accordingly, it proposes a novel statute to revamp …

Surgeons Or Scribes? The Role Of United States Court Of Appeals Law Clerks In "Appellate Triage", Todd C. Peppers, Micheal W. Giles, Bridget Tainer-Parkins

Scholarly Articles

Using original survey data, we explore how federal courts of appeals judges select and use their law clerks—a question that we answered in an earlier article about federal district court clerks. As with that first article, we do not intend to tackle such normative issues as whether courts of appeals law clerks possess too much influence over the judicial process or whether the selection criteria used by these judges is appropriate. What we will present, however, is descriptive data on the criteria that courts of appeals judges use to pick their law clerks as well as the tasks assigned to …

Judicial Assistants Or Junior Judges: The Hiring, Utilization, And Influence Of Law Clerks, Chad Oldfather, Todd C. Peppers

Scholarly Articles

Law clerks have been part of the American judicial system since 1882, when Supreme Court Justice Horace Gray hired a young Harvard Law School graduate named Thomas Russell to serve as his assistant. Justice Gray paid for his law clerks out of his own pocket until Congress authorized funds for the hiring of “stenographic clerks” in 1886. The Gray law clerks, however, were not mere stenographers. Justice Gray assigned them a host of legal and non-legal job duties. His clerks discussed the record and debated the attendant legal issues with Justice Gray prior to oral argument, conducted legal research, and …

Grade Incomplete: Examining The Securities And Exchange Commission's Attempt To Implement Credit Rating And Certain Corporate Governance Reforms Of Dodd-Frank, Tod Perry, Randle B. Pollard

Scholarly Articles

Following the financial crisis of 2007-2009, Congress passed the Dodd-Frank Act with stated goals, among others, of creating a sound economic foundation and protecting consumers. The Dodd-Frank Act creates several new agencies and restructures the financial regulatory system, yet controversies remain on the promulgation of new rules and the overall effectiveness in accomplishing the stated goals of the Act.

This Article briefly discusses the status of rulemaking by newly created agencies and the restructured financial regulatory system mandated by the Dodd- Frank Act three years after its passage. Next, we focus on certain aspects of the SEC and its charge …

Anti-Justice, Melanie D. Wilson

Scholarly Articles

This Article contends that, despite their unique, ethical duty to “seek justice,” prosecutors regularly fail to fulfill this ethical norm when removed from the traditional, adversarial courtroom setting. Examples abound. For instance, in 2013, Edward Snowden leaked classified information revealing a government-operated surveillance program known as PRISM. That program allows the federal government to collect metadata from phone companies and email accounts and to monitor phone conversations. Until recently, prosecutors relied on some of this covertly acquired intelligence to build criminal cases against American citizens without informing the accused. In failing to notify defendants, prosecutors violated the explicit statutory directives …

Scholars’ Supreme Court Amicus Brief In Support Of Neither Party: Petrella V. Metro-Goldwyn-Mayer, Douglas Laycock, Mark P. Gergen, Doug Rendleman

Scholarly Articles

The appeal to the Supreme Court in Petrella v. Metro-Goldwyn-Mayer deals with the equitable defense of plaintiff’s laches before suing for copyright infringement. Laches is unreasonable and prejudicial delay. MGM allegedly violated plaintiff’s copyright repeatedly over a period of many years; the statute of limitations has not run on the most recent violations. Plaintiff argues that laches should never apply to a cause of action with a statute of limitations. Defendant argues that laches should bar all relief if defendant relied on plaintiff’s failure to sue earlier, without having to match defendant’s reliance to the remedies plaintiff seeks.

This scholars’ …

Big Banks And Business Method Patents, Megan M. La Belle, Heidi Mandanis Schooner

Scholarly Articles

The banking industry and the patent system are longstanding American institutions whose histories date back to the founding of this country. Historically, however, the paths of these two institutions rarely crossed. Although financial firms have been increasing their innovative output for decades now, until recently they relied on trade secrecy, first mover advantages, and other business mechanisms to protect and monetize their intellectual property — not patents.

Through a convergence of circumstances over the past several years, that pattern has changed. The shift began when the Federal Circuit decided that business methods — banks’ primary mode of innovation — are …

Amicus Brief In United States V. Windsor By Scholars For The Recognition Of Children's Constitutional Rights, Tanya Washington, Catherine Smith, Susannah Pollvogt

Scholarly Articles

This amicus brief filed by Scholars of the Constitutional Rights of Children in Windsor turns the spotlight on children in same-sex families. The brief enumerates the many ways Section 3 of DOMA impairs children's interests by denying federal recognition of their parents' marriages. The brief was cited in Respondent's Brief to the Supreme Court for its central thesis: children are a vulnerable demographic which deserves government action that serves their interests, not government action that impairs their interests.

Looking To Torts: Exploring The Risks Of Workplace Discrimination, Catherine E. Smith

Scholarly Articles

Tort law plays a powerful role in defining cognizable harms and allocating responsibility based on concepts of fault, individual and community interests, social values, morality, compensation, deterrence, and notions of fairness. So, the idea that it may serve as a source of guidance in employment discrimination law, and in particular, in one of the most intractable debates within employment discrimination jurisprudence--the requirement of discriminatory intent--is not "unreasonable." To shift from an intentional discrimination mindset to one focused on risks of discrimination will not be easy. Hopefully, this brief inquiry has offered some food for thought.

Brief Of Scholars Of The Constitutional Rights Of Children Susannah W. Pollvogt, Catherine E. Smith, And Tanya Washington As Amici Curiae In Support Of Plaintiffs-Appellants And Reversal: Robicheaux V. Caldwell, Catherine E. Smith, Tanya Washington, Susannah W. Pollvogt

Scholarly Articles

Amici are scholars and professors of family law and the law of equal protection. Amici submit this brief to respond directly to arguments advanced by the State of Louisiana that its laws prohibiting same-sex marriage2 are justified because they advance child welfare. Specifically, the State asserts that its laws advance child welfare by promoting Louisiana’s interest in: (1) linking children with their biological parents to prevent the social stigma associated with being “illegitimate” and (2) establishing the child as a member of an intact family resulting from the marriage of the mother and alleged father. These purported justifications express and …

Children As Proto-Citizens: Equal Protection, Citizenship, And Lessons From The Child-Centered Cases, Catherine E. Smith, Susannah W. Pollvogt

Scholarly Articles

The rights of children have recently taken a prominent role in the popular and judicial consciousness. This is largely due to litigation over marriage equality. In authoring the majority opinion in United States v. Windsor, 133 S. Ct. 2675 (2013), Justice Kennedy cited tangible and psychic harm to the children of same-sex couples as a basis for invalidating the federal Defense of Marriage Act. Post-Windsor, myriad state and federal courts similarly have recognized the manner in which state-level marriage bans inflict harm on the children of same-sex couples. Yet, while courts have recognized the significance of harm to children …

The Biography Of Gratian, The Father Of Canon Law, Kenneth Pennington

Scholarly Articles

The research on the pre-Vulgate manuscripts has been enormously interesting and, not surprisingly, has created areas of disagreement about aspects of Gratian’s life, work, and teaching. These scholarly debates have given birth to a fruitful and vigorous exploration into the teaching and development of law in the first half of the twelfth century.5 The issues are many. Perhaps the most important is the lack of consensus about how long Gratian worked on the Decretum and how long he taught. That will be the focus of this Essay.

Political Activity Limits And Tax Exemption: A Gordian’S Knot, Roger Colinvaux

Scholarly Articles

The article considers the correct tax treatment of organized political activity by the tax system and discusses the problems that have arisen from political activity depending on whether the organization is a charity, a noncharitable exempt, or a political organization. The article then examines administrative and legislative options to the problems raised by political activity. Quantum-based solutions to the problem of political activity by noncharitable exempts do not provide a clear advantage over present law. Formally quantifying the “primarily” test would result in more certainty, but would also require that the Service be more, not less, involved in the regulation …