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Articles 1 - 21 of 21
Full-Text Articles in Law
Inadvertent Waiver Of The Attorney-Client Privilege By Disclosure Of Documents: An Economic Analysis, Alan J. Meese
Inadvertent Waiver Of The Attorney-Client Privilege By Disclosure Of Documents: An Economic Analysis, Alan J. Meese
Alan J. Meese
No abstract provided.
Much Uncertainty About Uncertain Tax Positions, Robert D. Probasco
Much Uncertainty About Uncertain Tax Positions, Robert D. Probasco
Robert Probasco
The Internal Revenue Service (IRS) announced in January 2010 a new initiative to require certain businesses to report “uncertain tax positions” on a new schedule filed with their annual tax returns. Draft schedules and instructions issued in April 2010 clarified some of the mechanical aspects of the new requirement but left many open issues and questions. The IRS proposal built on requirements by the Financial Accounting Standards Board (FASB) in FASB Interpretation No. 48, Accounting for Uncertainty in Income Taxes (“FIN 48”). The standard requires companies, in their financial statements, to reserve some of the benefits from any position taken …
Jurisdiction And Its Effects, Scott Dodson
Jurisdiction And Its Effects, Scott Dodson
Scott Dodson
Allowing Patients To Waive The Right To Sue For Medical Malpractice: A Response To Thaler And Sunstein, Tom Baker, Timothy D. Lytton
Allowing Patients To Waive The Right To Sue For Medical Malpractice: A Response To Thaler And Sunstein, Tom Baker, Timothy D. Lytton
Timothy D. Lytton
This essay critically evaluates Richard Thaler and Cass Sunstein’s proposal to allow patients to prospectively waive their rights to bring a malpractice claim, presented in their recent, much acclaimed book, Nudge: Improving Decisions about Health, Wealth and Happiness. We show that the behavioral insights that undergird Nudge do not support the waiver proposal. In addition, we demonstrate that Thaler and Sunstein have not provided a persuasive cost-benefit justification for the proposal. Finally, we argue that their liberty-based defense of waivers rests on misleading analogies and polemical rhetoric that ignore the liberty and other interests served by patients’ tort law rights. …
To Waive And Waive Not: Property And Flexibility In The Digital Era: 23rd Annual Horace S. Manges Lecture, April 6, 2010, Robert P. Merges
To Waive And Waive Not: Property And Flexibility In The Digital Era: 23rd Annual Horace S. Manges Lecture, April 6, 2010, Robert P. Merges
Robert P Merges
No abstract provided.
The Nba's 2011 Collectively Bargained Amnesty Clause-Exploring The Fundamentals, Adam Epstein, Kathryn Kisska-Schulze
The Nba's 2011 Collectively Bargained Amnesty Clause-Exploring The Fundamentals, Adam Epstein, Kathryn Kisska-Schulze
Adam Epstein
The purpose of this article is to fundamentally introduce the amnesty clause, a relatively new provision in the labor and employment law discussions involving sport. The expression amnesty clause or amnesty provision is found in the 2011 NBA CBA. To date, academic references to the amnesty clause within the sport genre are virtually non-existent. The amnesty clause provides NBA teams a tool to release players from their contracts if they feel that the player turned out to be a bad investment, regardless of the reason. Additionally, by releasing a player under an amnesty clause provision, the team exercising the clause …
The Arbitration Clause As Super Contract, Richard Frankel
The Arbitration Clause As Super Contract, Richard Frankel
Richard Frankel
It is widely acknowledged that the purpose of the Federal Arbitration Act was to place arbitration clauses on equal footing with other contracts. Nonetheless, federal and state courts have turned arbitration clauses into “super contracts” by creating special interpretive rules for arbitration clauses that do not apply to other contracts. In doing so, they have relied extensively, and incorrectly, on the Supreme Court’s determination that the FAA embodies a federal policy favoring arbitration.
While many scholars have focused attention on the public policy rationales for and against arbitration, few have explored how arbitration clauses should be interpreted. This article fills …
Skating Too Close To The Edge: A Cautionary Tale For Tax Practitioners About The Hazards Of Waiver, Claudine Pease-Wingenter
Skating Too Close To The Edge: A Cautionary Tale For Tax Practitioners About The Hazards Of Waiver, Claudine Pease-Wingenter
Claudine Pease-Wingenter
The Federal Rules of Evidence defer to common law in establishing the rules of attorney-client privilege. As a general matter, such an approach creates a fairly uncertain legal landscape as each court articulates the baseline rules somewhat differently. The varied judicial applications of those differing rules can then exacerbate the uncertainty even more.
Unfortunately, in the area of tax law, the rules and their application are particularly uncertain because attorneys and accountants have overlapping responsibilities to clients and the courts have historically refused to recognize an accountant-client privilege. During my approximately eight years practicing corporate tax law, I was acutely …
Corporate Salvation Or Damnation? Proposed New Federal Legislation On Selective Waiver, Liesa L. Richter
Corporate Salvation Or Damnation? Proposed New Federal Legislation On Selective Waiver, Liesa L. Richter
Liesa L. Richter
Recently, critics have attacked federal law enforcement policies that encourage corporate targets to disclose sensitive information protected by the corporate attorney-client privilege and work-product doctrine, arguing that the policies are coercive, fundamentally unfair, and destined to chill the free flow of information to corporate counsel. The most readily apparent collateral consequence of these policies, however, has been corporations' loss of privilege protection in subsequent litigation. Good corporate citizens that have chosen to cooperate with the government in this manner have been punished with broad findings of waiver and the dissemination of protected information to companies' civil adversaries. To protect companies …
The Decision Zone: The New Stage Of Interrogation Created By Berghuis V. Thompkins, Meghan M. Morris
The Decision Zone: The New Stage Of Interrogation Created By Berghuis V. Thompkins, Meghan M. Morris
Meghan M Morris
This essay addresses a new stage of interrogation, approved of for the first time in the Supreme Court’s 2010 decision, Berghuis v. Thompkins. This stage – the “decision zone” – is the period, however brief or prolonged, after officers have read a suspect his rights but before the suspect has decided whether to waive or to invoke his rights. In Thompkins, the Supreme Court allowed interrogation during this stage, which lasted almost 3 hours in that case. Through this decision, the Supreme Court implicitly assented to prolonged interrogation before a suspect decides whether to invoke or to waive his rights, …
Discrimination Cases In The 2001 Term Of The Supreme Court (Symposium: The Fourteenth Annual Supreme Court Review), Eileen Kaufman
Discrimination Cases In The 2001 Term Of The Supreme Court (Symposium: The Fourteenth Annual Supreme Court Review), Eileen Kaufman
Eileen Kaufman
No abstract provided.
Returning To First Principles Of Privilege Law: Focusing On The Facts In Internal Corporate Investigations, Christopher T. Hines
Returning To First Principles Of Privilege Law: Focusing On The Facts In Internal Corporate Investigations, Christopher T. Hines
Christopher T Hines
In the aftermath of the worst economic downturn since the Great Depression, it is necessary and appropriate to ask some fundamental questions on the economic laws and regulations that, for better or worse, played a contributing role in the recent financial crisis. Although the ongoing financial reform efforts have already resulted in significant changes in applicable laws, a further discussion regarding the principles and practices that existed within the enforcement of law is worthy of consideration. Specifically stated, are there any improvements that can be made to the current federal securities enforcement regime that would work to the benefit of …
The Missing Miranda Warning: Why What You Don’T Know Really Can Hurt You, Geoffrey S. Corn
The Missing Miranda Warning: Why What You Don’T Know Really Can Hurt You, Geoffrey S. Corn
Geoffrey S. Corn
Abstract
The Missing Miranda Warning: Why What You Don’t Know Really Can Hurt You
Miranda – at least the core rule that statements made by suspects in response to custodial interrogation are admissible in the prosecution’s case-in-chief only following a knowing and voluntary waiver of the Miranda rights – has survived decades of attacks. While the “stormy seas” the decision navigated produced a wake of academic study of the wisdom of the decision, little attention has been focused on an equally logical question: did Miranda go far enough? If, as the Miranda Court emphasized, the purpose of Miranda’s warnings was …
The Missing Miranda Warning: Why What You Don’T Know Really Can Hurt You, Geoffrey S. Corn
The Missing Miranda Warning: Why What You Don’T Know Really Can Hurt You, Geoffrey S. Corn
Geoffrey S. Corn
Abstract The Missing Miranda Warning: Why What You Don’t Know Really Can Hurt You
Miranda – at least the core rule that statements made by suspects in response to custodial interrogation are admissible in the prosecution’s case-in-chief only following a knowing and voluntary waiver of the Miranda rights – has survived decades of attack. However, since the Supreme Court decided this seminal case, little attention has been focused on whether Miranda went far enough? If, as the Miranda Court emphasized, the purpose of Miranda warnings was to ensure criminal suspects were provided a meaningful opportunity to exercise their privilege against …
Voluntary Client Testimony As A Privilege Waiver: Is Ohio's Law Caught In A Time Warp?, David B. Alden, Matthew P. Silversten
Voluntary Client Testimony As A Privilege Waiver: Is Ohio's Law Caught In A Time Warp?, David B. Alden, Matthew P. Silversten
David B. Alden
Ohio’s attorney-client privilege statute, Ohio Rev. Code § 2317.02(A), has been interpreted to provide for a broad waiver of the attorney-client privilege whenever the client testifies voluntarily, including when the client’s testimony does not disclose the substance of the otherwise privileged communications. Finding a privilege waiver under these circumstances is virtually unique to Ohio. This article (1) traces the origins of this rule back to Ohio’s first code of civil procedure, which was enacted in 1853, (2) identifies the long-forgotten reasons that prompted its adoption; (3) analyzes decisions that have applied it from the mid-nineteenth century through today; (4) assesses …
How Should Lawyers Handle The Unintended Disclosure Of Possibly Privileged Information?, James M. Fischer
How Should Lawyers Handle The Unintended Disclosure Of Possibly Privileged Information?, James M. Fischer
James M. Fischer
The inadvertently sent email that contains opposing counsel’s settlement strategy, the opposing party’s client opinion letter negligently included in a discovery response, and the opposing party’s work papers taken by a whistle blowing client all share a common theme – the materials were not intended to be disclosed by the opposing party to the recipient lawyer. Notwithstanding the similarities, case law, commentary, and ethics opinions have tended to treat the issues as separate. This separation has not, however, helped lawyers who are subjected to conflicting and inconsistent opinions as to how they should respond in situations when they have received …
The Credit Repair Organizations Act: The Sleeping Giant, Justin Smith
The Credit Repair Organizations Act: The Sleeping Giant, Justin Smith
Justin T Smith
Congress created the Credit Repair Organizations Act (CROA) to protect consumers from unscrupulous providers of credit repair. In the fifteen years since it was enacted, problems have arisen in its application as many of the key provisions of CROA were left undefined and what little case law that has developed has yet to form a coherent understanding of how CROA is to be read. This lack of predictability makes CROA an ineffective piece of legislation in that parties are unable to properly modify their behavior since they are not operating on known terms.
Just as CROA has been neglected by …
Just The Facts: Solving The Corporate Privilege Waiver Dilemma, Don R. Berthiaume
Just The Facts: Solving The Corporate Privilege Waiver Dilemma, Don R. Berthiaume
Don R Berthiaume
How can corporations provide “just the facts” — which are, in fact, not privileged — without waiving the attorney client privilege and work product protection? This article argues for an addition to the Federal Rules of Criminal Procedure based upon Rule 30(b)(6) of the Federal Rules of Civil Procedure, which allows civil litigants to issue a subpoena to an organization and cause them to “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf … about information known or reasonably available to the organization.”[6] Why should we look to Fed. …
Forfeiture Of The Right To Counsel: A Doctrine Unhinged From The Constitution, Stephen A. Gerst
Forfeiture Of The Right To Counsel: A Doctrine Unhinged From The Constitution, Stephen A. Gerst
Stephen A Gerst
The Sixth Amendment right to an attorney is so fundamental that the United States Supreme Court has carefully developed requirements to ensure that an indigent defendant does not go to trial in any criminal case where there is a possibility of a deprivation of freedom without an attorney unless there is an affirmative waiver of the right to counsel on the record. However, the Supreme Court has not addressed what the record must show for finding that a defendant has lost his right to counsel as a result of the defendant's own misconduct toward the court or the defendant's attorney. …
Placebo Ethics, Usha Rodrigues, Mike Stegemoller
Placebo Ethics, Usha Rodrigues, Mike Stegemoller
Usha Rodrigues
While there are innumerable theories on the best remedy for the current financial crisis, there is agreement on one point, at least: increased transparency is good. We look at a provision from the last round of financial regulation, the Sarbanes Oxley Act of 2002 (“SOX”), which imposed disclosure requirements tailored to prevent some of the kinds of abuses that led to the downfall of Enron. In response to Enron’s self-dealing transactions, Section 406 of SOX required a public company to disclose its code of ethics and to disclose immediately any waivers from that code the company grants to its top …
Understanding Waiver, Jessica Berg