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Articles 31 - 45 of 45
Full-Text Articles in Law
Payroll Taxes, Mythology And Fairness, Linda Sugin
Payroll Taxes, Mythology And Fairness, Linda Sugin
Faculty Scholarship
As the 2012 fiscal cliff approached, Congress and President Obama bickered over the top marginal income tax rate that would apply to a tiny sliver of the population, while allowing payroll taxes to quietly rise for all working Americans. Though most Americans pay more payroll tax than income tax, academic and public debates rarely mention it. The combined effect of the payroll tax and the income tax produce dramatically heavier tax liabilities on labor compared to capital, producing substantial horizontal and vertical inequity in the tax system. This article argues that a fair tax system demands just overall burdens, and …
The Legal Challenges Of Diversity (Review Essay), Tanya K. Hernandez
The Legal Challenges Of Diversity (Review Essay), Tanya K. Hernandez
Faculty Scholarship
Within the last year two excellent books, Mariana Valverde’s Everyday Law on the Street: City Governance In an Age of Diversity and Victoria Saker Woeste’s Henry Ford’s War on Jews and the Legal Battle Against Hate Speech, address how social anxieties about “diversity” surface in the development and enforcement of the law. While the two books focus on different eras and countries, they similarly illustrate the tensions in legal contexts that can result from the growth in diversity
Beyond Title Vii: Rethinking Race, Ex-Offender Status, And Employment Discrimination In The Information Age, Kimani Paul-Emile
Beyond Title Vii: Rethinking Race, Ex-Offender Status, And Employment Discrimination In The Information Age, Kimani Paul-Emile
Faculty Scholarship
More than sixty-five million people in the United States—more than one in four adults—have had some involvement with the criminal justice system that will appear on a criminal history report. A rapidly expanding, for-profit industry has developed to collect these records and compile them into electronic databases, offering employers an inexpensive and readily accessible means of screening prospective employees. Nine out of ten employers now inquire into the criminal history of job candidates, systematically denying individuals with a criminal record any opportunity to gain work experience or build their job qualifications. This is so despite the fact that many individuals …
Are Damages Different? Bivens And National Security, Andrew Kent
Are Damages Different? Bivens And National Security, Andrew Kent
Faculty Scholarship
Litigation challenging the national security actions of the federal government has taken a seemingly paradoxical form in recent years. Prospective coercive remedies like injunctions and habeas corpus (a kind of injunction) are traditionally understood to involve much greater intrusions by the judiciary into government functioning than retrospective money damages awards. Yet federal courts have developed and strictly applied doctrines barring Bivens damages actions against federal officials because of an asserted need to preserve the prerogatives of the political branches in national security and foreign affairs. At the same time, the courts have been increasingly assertive in cases involving coercive remedies, …
Government Endorsement: A Reply To Nelson Tebbe's Government Nonendorsement, Abner S. Greene
Government Endorsement: A Reply To Nelson Tebbe's Government Nonendorsement, Abner S. Greene
Faculty Scholarship
In this response to Nelson Tebbe’s Government Nonendorsement, Abner Greene continues to develop his “thick perfectionist” view of government speech, arguing that the state may use its speech powers to advance various views of the good, from left, center,
Clearinghouses As Liquidity Partitioning, Richard Squire
Clearinghouses As Liquidity Partitioning, Richard Squire
Faculty Scholarship
To reduce the risk of another financial crisis, the Dodd-Frank Act requires that trading in certain derivatives be backed by clearinghouses. Critics mount two main objections: a clearinghouse shifts risk instead of reducing it; and a clearinghouse could fail, requiring a bailout. This Article’s observation that clearinghouses engage in liquidity partitioning answers both. Liquidity partitioning means that when one of its member firms becomes bankrupt, a clearinghouse keeps a portion of the firm’s most liquid assets, and a matching portion of its short-term debt, out of the bankruptcy estate. The clearinghouse then applies the first toward immediate repayment of the …
Presidential Constitutionalism And Civil Rights, Joseph Landau
Presidential Constitutionalism And Civil Rights, Joseph Landau
Faculty Scholarship
As the judicial and legislative branches have taken a more passive approach to civil rights enforcement, the President’s exercise of independent, extrajudicial constitutional judgment has become increasingly important. Modern U.S. presidents have advanced constitutional interpretations on matters of race, gender, HIV-status, self-incrimination, reproductive liberty, and gun rights, and President Obama has been especially active in promoting the rights of lesbian, gay, bisexual, and transgender (LGBT) persons — most famously by refusing to defend the Defense of Marriage Act (DOMA). Commentators have criticized the President’s refusal to defend DOMA from numerous perspectives but have not considered how the President’s DOMA policy …
What We Disagree About When We Disagree About School Choice, Aaron J. Saiger
What We Disagree About When We Disagree About School Choice, Aaron J. Saiger
Faculty Scholarship
The debate over school vouchers, charter schools, and other varieties of school choice has become a bit stale. It would improve were advocates on all sides to acknowledge several crucial realities that they too often obfuscate. First, the debate is fundamentally normative, not empirical. The desirability of choice depends primarily upon how we weigh competing claims of equality and liberty in education. Second, all participants in the debate should acknowledge both that constrained choice is still genuine choice, and that how and to what extent parental decisions are constrained are fundamental issues in choice policy. Finally, with respect to the …
Turnaround: Reflections On The Present Day Influence Of Negotiations On International Bankruptcy At The Fifth Session Of The Hague Conference On Private International Law In 1925, Susan Block-Lieb
Faculty Scholarship
In 1925, the British government sent a delegation to the Fifth Session of the Hague Conference on Private International Law. The Hague Conference had met sporadically since 1893,1 but this was the first time the British government sent a delegation to The Hague to discuss the possibility of a diplomatic convention to reach international agreement on uniform rules on what continental Europeans called “private international law” — matters of jurisdiction, applicable law and procedure. The British delegation held limited authority from the Home Office: it could participate only in deliberations on a possible convention on bankruptcy law, and then only …
One Path For ‘Post-Racial’ Employment Discrimination Cases—The Implicit Association Test Research As Social Framework Evidence, Tanya K. Hernandez
One Path For ‘Post-Racial’ Employment Discrimination Cases—The Implicit Association Test Research As Social Framework Evidence, Tanya K. Hernandez
Faculty Scholarship
Today’s legal civil rights struggle is in large measure the effort to retain the foundational premise that racial discrimination is still a pervasive and problematic dynamic that law should be engaged in addressing. Within the employment discrimination context the attempt to salvage anti-discrimination law doctrine has been lodged on several fronts. Of particular note has been the effort to incorporate “social framework” evidence. Yet, given the powerful societal conviction in a “post-racial” American narrative of discrimination as an exceptionally rare event caused by aberrant malicious individuals, general social framework evidence alone will be unlikely to assist most plaintiffs present a …
Constitutional Purpose And The Anti-Corruption Principle, Zephyr Teachout
Constitutional Purpose And The Anti-Corruption Principle, Zephyr Teachout
Faculty Scholarship
What was the purpose of the American Constitution? What was it made to do by those who made it? This question — which might be at the center of constitutional theory — is not explicitly asked as often as one might think. Instead, it frequently takes a backseat to other questions about the appropriate mode of constitutional interpretation or the specific purposes of particular texts. And yet it is an important question. How did the Framers (and then the second Framers, the amenders) imagine their own purposes? What are legitimate ways to determine their purposes? Most importantly for the purposes …
Citations To Foreign Courts -- Illegitimate And Superfluous, Or Unavoidable? Evidence From Europe, Martin Gelter, Mathias M. Siems
Citations To Foreign Courts -- Illegitimate And Superfluous, Or Unavoidable? Evidence From Europe, Martin Gelter, Mathias M. Siems
Faculty Scholarship
The theoretical arguments in favour and against citations to foreign courts have reached a high degree of sophistication. Yet, this debate is often based on merely anecdotal assumptions about the actual use of cross-citations. This article aims to fill this gap. It provides quantitative evidence from ten European supreme courts in order to assess the desirability of such cross-citations. In addition, it examines individual cases qualitatively, developing a taxonomy of cross-citations based on the degree to which courts engage with foreign law. Overall, this article high-lights the often superficial nature of cross-citations in the some courts; yet, it also concludes …
Whose Trojan Horse? The Dynamics Of Resistance Against Ifrs, Martin Gelter, Zehra Kavame Eroglu
Whose Trojan Horse? The Dynamics Of Resistance Against Ifrs, Martin Gelter, Zehra Kavame Eroglu
Faculty Scholarship
The introduction of International Financial Reporting Standards (“IFRS”) has been debated in the United States since at least the accounting scandals of the early 2000s. While publicly traded firms around the world are increasingly switching to IFRS, often because they are required to do so by law or by their stock exchange, the Securities Exchange Com-mission (“SEC”) seems to have become more reticent in recent years. Only foreign issuers have been permitted to use IFRS in the United States since 2007. By contrast, the EU has mandated the use of IFRS in the consolidated financial statements of publicly traded firms …
Privacy In Public, Joel R. Reidenberg
Privacy In Public, Joel R. Reidenberg
Faculty Scholarship
As government and private companies rapidly expand the infrastructure of surveillance from cameras on every street corner to facial recognition for photographs on social media sites, privacy doctrines built on seclusion are at odds with technological advances. This essay addresses a key conceptual problem in US privacy law identified by Justice Sotomayor in U.S. v. Jones and by Justice Scalia in Kyllo v. U.S.; namely that technological capabilities undermine the meaning of the third-party doctrine and the 4th Amendment's ‘reasonable expectation of privacy’ standard. The essay argues that the conceptual problem derives from the evolution of three stages of development …
Sotomayer's Supreme Court Race Jurisprudebce: 'Fidelity To The Law', Tanya K. Hernandez
Sotomayer's Supreme Court Race Jurisprudebce: 'Fidelity To The Law', Tanya K. Hernandez
Faculty Scholarship
During the Senate confirmation hearings for Justice Sonia Sotomayor, concerns were persistently raised about her ability to be impartial. Conservative pundit Rush Limbaugh and many others railed against her nomination, proclaiming on talk radio broadcasts from coast-to-coast that she is a reverse-racist and nothing less than anti-white. A review of the Supreme Court record of race-related cases demonstrates Justice Sotomayor’s continued commitment to her stated judicial philosophy of fidelity to the law, inasmuch as she has not sought the unilateral imposition of her own personal racial policy preferences but has instead worked as a team player to scrupulously apply legal …