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Articles 1 - 9 of 9
Full-Text Articles in Law
The Esa: Oil And Water?, Joseph L. Sax
The Esa: Oil And Water?, Joseph L. Sax
Strategies in Western Water Law and Policy: Courts, Coercion and Collaboration (Summer Conference, June 8-11)
4 pages.
Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier
Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier
Articles
Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not …
The Boundaries Of Private Property, Michael A. Heller
The Boundaries Of Private Property, Michael A. Heller
Articles
If your house and fields are worth more separately, divide them; if you want to leave a ring to your child now and grandchild later, split the ownership in a trust. The American law of property encourages owners to subdivide resources freely. Hidden within the law, however, is a boundary principle that limits the right to subdivide private property into wasteful fragments. While people often create wealth when they break up and recombine property in novel ways, owners may make mistakes, or their self-interest may clash with social welfare. Property law responds with diverse doctrines that prevent and abolish excessive …
Revaluing Restitution: From The Talmud To Postsocialism, Michael A. Heller, Christopher Serkin
Revaluing Restitution: From The Talmud To Postsocialism, Michael A. Heller, Christopher Serkin
Reviews
Whatever happened to the study of restitution? Once a core private law subject along with property, torts, and contracts, restitution has receded from American legal scholarship. Few law professors teach the material, fewer still write in the area, and no one even agrees what the field comprises anymore. Hanoch Dagan's Unjust Enrichment: A Study of Private Law and Public Values threatens to reverse the tide and make restitution interesting again. The book takes commonplace words such as "value" and "gain" and shows how they embody a society's underlying normative principles. Variations across cultures in the law of unjust enrichment reflect …
The Constitutionality Of Taxing Compensatory Damages For Mental Distress When There Was No Accompanying Physical Injury, Douglas A. Kahn
The Constitutionality Of Taxing Compensatory Damages For Mental Distress When There Was No Accompanying Physical Injury, Douglas A. Kahn
Articles
Since 1919, statutory tax law has excluded from gross income compensatory damages received on account of a personal injury or sickness.1 The current version of that exclusion is set forth in section 104 (a) (2) of the Internal Revenue Code of 1986.2 The construction of that exclusion, both by the courts and by the Commissioner, underwent significant alterations over the 80-year period that the provision has existed.3 The statute itself was amended several times, most recently in 1996.4 It is the 1996 amendment that has raised a constitutional issue concerning the validity of a portion of the statute.5
Taking Notes: Subpoenas And Just Compensation, Gary S. Lawson
Taking Notes: Subpoenas And Just Compensation, Gary S. Lawson
Faculty Scholarship
Few cases from the October 1997 Supreme Court term received as much public attention as Swidler & Berlin v United States, which held that the attorney-client privilege survives the death of the client in federal criminal proceedings. If one focuses solely on the issue actually decided in the case, that degree of attention is surprising. The issue had not generated a split among the federal circuits, and there were relatively few decisions-federal or state-squarely on point. The Court's holding was thus unlikely to have a major impact on American law; the paucity of prior case law demonstrates that the question …
The Contingent Employee Benefits Problem, Mark Berger
The Contingent Employee Benefits Problem, Mark Berger
Faculty Works
In the contemporary American workplace, benefits are a critical a component of overall compensation. American workers look to their employers for such non-salary items as retirement programs, health insurance, sick pay, and paid vacations. However, the costs of such benefits have been rising rapidly and employers have sought ways to avoid paying them. Increasingly, employers have been using various techniques to create a pool of contingent workers who, even if they work side-by-side with the employer's traditional employees, nevertheless receive none of the benefits made available to members of the regular workforce. These contingent employee arrangements include utilizing contract workers, …
The Metrics Of Constitutional Amendments: And Why Proposed Environmental Quality Amendments Don't Measure Up, J.B. Ruhl
Vanderbilt Law School Faculty Publications
This article builds a model of federal constitutional amendments using proposed environmental quality rights amendments as a case study. I argue that environmental quality rights amendments are unworkable and violate the underpinnings of federal constitutional design.
Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier
Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier
Articles
Phillips v. Washington Legal Foundation held that interest on principal amounts deposited into IOLTA accounts is the property of the various clients who handed over the money but expressed no view as to whether the Texas IOLTA program worked a taking, or, if it did, whether any compensation was due. The debates among the justices about the meaning of private property, argued in terms of contextual and conceptual severance, are unlikely to prove fruitful. We elaborate a better approach in terms of the underlying purposes of just compensation. We conclude that efficiency and justice are best served by uncoupling matters …