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Full-Text Articles in Law

Tax, Trade And Harmful Tax Competition: Reflections On The Fsc Controversy, Reuven S. Avi-Yonah Dec 2000

Tax, Trade And Harmful Tax Competition: Reflections On The Fsc Controversy, Reuven S. Avi-Yonah

Articles

This article contrasts three approaches to dealing with the BEPS problem: adopting a unitary taxation regime, ending deferral, and adopting anti-base-erosion measures. It concludes that while the first approach is the best long-term option, the other two are more promising as immediate candidates for adoption in the context of U.S. tax reform and the OECD BEPS project.


The Best-Laid Plans, Carl E. Schneider Jul 2000

The Best-Laid Plans, Carl E. Schneider

Articles

It is natural to suppose law is like the centurion and can do as it will: "I say to this man, Go, and he goeth; and to another, Come, and he cometh; and to my servant, Do this, and he doeth it." But a thousand years ago, King Canute tried to disillusion his courtiers about his efficacy by commanding the waves to stop beating. And fifty years ago, Harry Truman predicted of Dwight Eisenhower, "He'll sit here, and he'll say, 'Do this! Do that!' And nothing will happen. Poor Ike-it won't be a bit like the Army. He'll find it …


Uncoupling The Law Of Takings, Michael A. Heller, James E. Krier Jan 2000

Uncoupling The Law Of Takings, Michael A. Heller, James E. Krier

Articles

The law of takings couples together matters that should be treated independently. The conventional view, shared by courts and commentators alike, has been that any takings case can be resolved in one of two ways: either there is a taking and compensation is due, or there is no taking and no compensation is due. These results are fine as long as one holding or the other serves the two central concerns of the Takings Clause - eficiency and justice. But a problem arises when the two purposes behind the law of takings come into cordhct, as they readily might. It …


Three Faces Of Private Property, Michael A. Heller Jan 2000

Three Faces Of Private Property, Michael A. Heller

Articles

Private property is a rather elusive concept. Any kid knows what it means for something to be mine or yours, but grownup legal theorists get flustered when they try to pin down the term. Typically they, actually we, turn to a familiar analytic toolkit: including, for example, Blackstone's image of private property as "sole and despotic dominion"; Hardin's metaphor of the "tragedy of the commons"; and, more generally, the division of ownership into a trilogy of private, commons, and state forms. While each analytic tool has a distinguished pedigree and certain present usefulness, each also imposes a cost because it …


Congress' Arrogance, Yale Kamisar Jan 2000

Congress' Arrogance, Yale Kamisar

Articles

Does Dickerson v. U.S., reaffirming Miranda and striking down §3501 (the federal statute purporting to "overrule" Miranda), demonstrate judicial arrogance? Or does the legislative history of §3501 demonstrate the arrogance of Congress? Shortly after Dickerson v. U.S. reaffirmed Miranda and invalidated §3501, a number of Supreme Court watchers criticized the Court for its "judicial arrogance" in peremptorily rejecting Congress' test for the admissibility of confessions. The test, pointed out the critics, had been adopted by extensive hearings and debate about Miranda's adverse impact on law enforcement. The Dickerson Court did not discuss the legislative history of §3501 at all. However, …


Dna As Evidence: Viewing Science Through The Prism Of The Law, Peter Donnelly, Richard D. Friedman Jan 2000

Dna As Evidence: Viewing Science Through The Prism Of The Law, Peter Donnelly, Richard D. Friedman

Articles

In this article, we analyze a problem related to DNA evidence that is likely to be of great and increasing significance in the near future. This is the problem of whether, and how, to present evidence that the suspect has been identified through a DNA database search. In our view, the two well-known reports on DNA evidence issued by the National Research Council (NRC) have been badly mistaken in their analysis of this problem. The mistakes are significant because the reports have carried great authority with American courts; moreover, the DNA Advisory Board of the FBI has endorsed the second …


America As Pattern And Problem, Carl E. Schneider Jan 2000

America As Pattern And Problem, Carl E. Schneider

Articles

Since the days of Tocqueville, foreign observers have seen America as both a pattern and a problem. They still do, and in ways that illuminate the way law deals with bioethical issues both here and abroad. America was long exceptional in having a written constitution, in allowing its courts the power of judicial review, and in letting courts exercise that power to develop and enforce principles of human rights. Today, that pattern looks markedly less exceptional. After the Second World War, Germany and Japan were persuaded to adopt constitutions that included human rights provisions and that endowed courts with the …


Linking The Visions, Donald H. Regan Jan 2000

Linking The Visions, Donald H. Regan

Articles

In my case, which may be unusual, the importance of my non-law training and commitments is not in specific contributions they make to my work in law. Rather, it is in their contributions to my being me.


Aggregation And Settlement Of Mass Torts, Edward H. Cooper Jan 2000

Aggregation And Settlement Of Mass Torts, Edward H. Cooper

Articles

The following essay is the pre-editing draft of the introduction to a paper delivered at a Mass Torts conference held at the University of Pennsylvania Law School in November 1999. Thc conference grew out of the work of the ad hoc Mass Torts Working Group that on February 15, 1999, delivered a Report to the Chief Justice of the United States and the judicial Conference of the United States. The Working Group, chaired by Third Circuit Judge Anthony J. Scirica, '65, included members drawn from several Judicial Conference committees, including the Advisory Committee on the Federal Rules of Civil Procedure, …


One More Final Exam?, Edward H. Cooper Jan 2000

One More Final Exam?, Edward H. Cooper

Articles

An invitation to relive the agonies of yesteryear by taking an examination question, even a brief one, may seem easy to refuse. Admitting that the subject is Civil Procedure may seal the issue. But this question triggers a reflex that should be common to all lawyers. Try it. After thinking aobut the question - if you frame your answer without writing it out, less than 20 minutes will do - go on to the explanation of the question's origin and my own answer.


Re-Examining The Role Of Patents In Appropriating The Value Of Dna Sequences, Rebecca S. Eisenberg Jan 2000

Re-Examining The Role Of Patents In Appropriating The Value Of Dna Sequences, Rebecca S. Eisenberg

Articles

As public and private sector initiatives race to complete the sequence of the human genome, patent issues have played a prominent role in speculations about the significance of this achievement. How much of the genome will be subject to the control of patent holders, and what will this mean for future research and the development of products for the improvement of human health? Is a patent system developed to establish rights in mechanical inventions of an earlier era up to the task of resolving competing claims to the genome on behalf of the many sequential innovators who elucidate its sequence …


"Can (Did) Congress 'Overrule' Miranda?, Yale Kamisar Jan 2000

"Can (Did) Congress 'Overrule' Miranda?, Yale Kamisar

Articles

I think the great majority of judges, lawyers, and law professors would have concurred in Judge Friendly's remarks when he made them thirty-three years ago. To put it another way, I believe few would have had much confidence in the constitutionality of an anti-Miranda provision, usually known as § 3501 because of its designation under Title 18 of the United States Code, a provision of Title II of the Omnibus Crime Control and Safe Streets Act of 1968 (hereinafter referred to as the Crime Act or the Crime Bill), when that legislation was signed by the president on June 19, …


Lilly V. Virginia Glimmers Of Hope For The Confrontation Clause?, Richard D. Friedman Jan 2000

Lilly V. Virginia Glimmers Of Hope For The Confrontation Clause?, Richard D. Friedman

Articles

In 1662, in The Case of Thomas Tong and Others, which involved charges of treason against several defendants, the judges of the King's Bench conferred on a crucial set of points of procedure. As reported by one of the judges, Sir John Kelyng, the judges agreed unanimously that a pretrial confession made to the authorities was evidence against the Party himself who made the Confession, and indeed, if adequately proved could support a conviction of that party without additional witnesses to the treason itself. But -- again unanimously, and quite definitively -- the judges also agreed that the confession cannot …


Constitutional Federalism, Individual Liberty, And The Securities Litigation Uniform Standards Act Of 1998, Adam C. Pritchard Jan 2000

Constitutional Federalism, Individual Liberty, And The Securities Litigation Uniform Standards Act Of 1998, Adam C. Pritchard

Articles

This Article proceeds in four parts. Part I provides background on the historical development of constitutional federalism, the Supreme Court's decisions in this area, and the apparent demise of constitutional limits on federal power. Part II then reviews the Court's revival of constitutional federalism over the last decade. Based on this review, I argue that the Supreme Court's current federalism doctrine can be understood as a "constrained libertarianism" that attempts to use constitutional structure as a check on government interference with individual liberty. In this model, states are respected in our constitutional system because of the counterbalance that they provide …


Strategic Voting On Multimember Courts, Evan H. Caminker Jan 2000

Strategic Voting On Multimember Courts, Evan H. Caminker

Articles

In appellate adjudication, decisions are rendered by a multimember court as a collective entity, not by individual judges. Yet legal scholars have only just begun to explore the formal and informal processes by which individual votes are transformed into a collective judgment. In particular, they have paid insufficient attention to the ways in which the vote of each individual judge is influenced by the views of her colleagues on a multimember court.


Refugee Rights Are Not Negotiable, James C. Hathaway, Anne K. Cusick Jan 2000

Refugee Rights Are Not Negotiable, James C. Hathaway, Anne K. Cusick

Articles

America's troubled relationship with international law, in particular human rights law, is well documented. In many cases, the United States simply will not agree to be bound by international human rights treaties. For example, the United States has yet to ratify even such fundamental agreements as the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of all Forms of Discrimination Against Women, and the Convention on the Rights of the Child. When the United States does agree to become a party to an international human rights treaty, it has often sought to condition its acceptance …


The Product/Process Distinction - An Illusory Basis For Disciplining 'Unilateralism' In Trade Policy, Robert L. Howse, Donald H. Regan Jan 2000

The Product/Process Distinction - An Illusory Basis For Disciplining 'Unilateralism' In Trade Policy, Robert L. Howse, Donald H. Regan

Articles

It has become conventional wisdom that internal regulations that distinguish between products on the basis of their production method are GATT-illegal, where applied to restrict imports (although possibly some such measures might be justified as 'exceptions' under Article XX). The aim of this article is to challenge this conventional wisdom, both from a jurisprudential and a policy perspective. First, we argue there is no real support in the text and jurisprudence of the GATT for the product/process distinction. The notion developed in the unadopted Tuna/Dolphin cases that processed-based measures are somehow excluded from the coverage of Article III (National Treatment) …


In Re Silicon Graphics Inc.: Shareholder Wealth Effects Resulting From The Interpretation Of The Private Securities Litigation Reform Act's Pleading Standard, Marilyn F. Johnson, Karen K. Nelson, Adam C. Pritchard Jan 2000

In Re Silicon Graphics Inc.: Shareholder Wealth Effects Resulting From The Interpretation Of The Private Securities Litigation Reform Act's Pleading Standard, Marilyn F. Johnson, Karen K. Nelson, Adam C. Pritchard

Articles

This Article presents an empirical study of changes in shareholder wealth resulting from the Ninth Circuit Court of Appeals decision in In re Silicon Graphics Inc. Securities Litigation, which interpreted the pleading provision established in the Private Securities Litigation Reform Act of 1995 (the "Reform Act"). Congress passed the Reform Act as part of an ongoing effort to protect corporations from abusive suits alleging "fraud by hindsight." In such suits, plaintiffs claimed that a sudden drop in a company's stock price was evidence that the issuer and its management covered up the bad news that led to the price drop. …


Festschrift: Lee Loevinger, Layman E. Allen Jan 2000

Festschrift: Lee Loevinger, Layman E. Allen

Articles

Lee Loevinger is well-known and recognized for his outstanding achievements as a Minnesota Supreme Court Justice, as Assistant United States Attorney General for Antitrust, and as a superb practicing attorney. Perhaps less appreciated are his extraordinary contributions to the intersection of law and science generally and more particularly to the nurturing of the application of computer technology to law in its infancy.


Private Remedies For Public Wrongs Under Section 5 (Symposium: New Directions In Federalism), Evan H. Caminker Jan 2000

Private Remedies For Public Wrongs Under Section 5 (Symposium: New Directions In Federalism), Evan H. Caminker

Articles

The Supreme Court has ushered in the new millennium with a renewed emphasis on federalism-based limits to Congress's regulatory authority in general, and Congress's Section 5 power to enforce the Fourteenth Amendment in particular. In a recent string of cases, the Court has refined and narrowed Section 5's enforcement power in two significant ways.1 First, the Court made clear that Congress lacks the authority to interpret the scope of the Fourteenth Amendment's substantive provisions themselves, and may only "enforce" the judiciary's definition of Fourteenth Amendment violations. 2 Second, the Court embraced a relatively stringent requirement concerning the relationship between means …


Aggregation And Settlement Of Mass Torts, Edward H. Cooper Jan 2000

Aggregation And Settlement Of Mass Torts, Edward H. Cooper

Articles

It is the way of symposia that, after conveners assign topics for discussion, participants interpret those topics to cover subjects that interest themselves. I understand my assignment to be discussion of "nonbankruptcy closure" and "settlement." The Judicial Conference Working Group on Mass Torts suggests possible approaches that might facilitate closure of mass tort claims by litigation or by settlement! This paper will explore two models prepared to illustrate the challenges that confront any approach to fair and efficient closure. The first model is the "All-Encompassing Model," while the second is a draft of settlement-class provisions for Federal Rule of Civil …


Reading Texts, Reading Traditions: African Masks And American Law, James Boyd White Jan 2000

Reading Texts, Reading Traditions: African Masks And American Law, James Boyd White

Articles

My subject in this Essay is the relation between a text or other artifact and the tradition against which it acts. I want to begin by borrowing from a book that seems to me to represent a model-not the only model, of course, but a very good one-of a certain kind of cultural investigation. The book is Inventing Masks by Z.S. Strother, an art historian at Columbia University who specializes in African art. Its material subject is a set of face masks made by the Central Pende, an African people in what is now the Democratic Republic of Congo.


Allocating The Judicial Power In A 'Unified Judiciary' (Restructuring Federal Courts), Evan H. Caminker Jan 2000

Allocating The Judicial Power In A 'Unified Judiciary' (Restructuring Federal Courts), Evan H. Caminker

Articles

Over the past half-century, federal courts scholarship concerning congressional control over the authority of Article III courts has focused predominantly on the question of jurisdiction: Which, if any, federal courts may or must be available to adjudicate which cases or controversies?' This preoccupation is unsurprising since most threatened or actualized congressional regulation over this period of time has concerned when and which federal courts would play a role in implementing the law of the land.2


Sentimental Stereotypes: Emotional Expectations For High-And Low-Status Group Members, Larissa Z. Tiedens, Phoebe C. Ellsworth, Batja Mesquita Jan 2000

Sentimental Stereotypes: Emotional Expectations For High-And Low-Status Group Members, Larissa Z. Tiedens, Phoebe C. Ellsworth, Batja Mesquita

Articles

Three vignette studies examined stereotypes of the emotions associated with high- and low-status group members. In Study 1a, participants believed that in negative situations, high-status people feel more angry than sad or guilty and that low-status people feel more sad and guilty than angry. Study 1b showed that in response to positive outcomes, high-status people are expected to feel more pride and low-status people are expected to feel more appreciation. Study 2 showed that people also infer status from emotions: Angry and proud people are thought of as high status, whereas sad, guilty, and appreciative people are considered low status. …


Memorial: Margaret Althea Goldblatt (1948-2000), Margaret A. Leary Jan 2000

Memorial: Margaret Althea Goldblatt (1948-2000), Margaret A. Leary

Articles

Margaret Goldblatt, who died on June 15, 2000, in Cape Town, South Africa, after a year-long battle with cancer, was a rare combination of librarian and entrepreneur. She had both a sense of humor and a sense of professionalism that endeared her to those who knew her. Many of her colleagues knew her only through telephone and e-mail communications, for she worked the last several years from the office of Ward and Associates, located in the home she shared with her husband Peter Ward and her two children, Clea Goldblatt, age 21, and Zachary Ward, age 11.


A Presumption Of Innocence, Not Of Even Odds, Richard D. Friedman Jan 2000

A Presumption Of Innocence, Not Of Even Odds, Richard D. Friedman

Articles

Now I know how the Munchkins felt. Here I have been, toiling in the fields of Evidenceland for some years, laboring along with others to show how use of Bayesian probability theory can assist in the analysis and understanding of evidentiary problems.' In doing so, we have had to wage continuous battle against the Bayesioskeptics-the wicked witches who deny much value, even heuristic value, for probability theory in evidentiary analysis.2 Occasionally, I have longed for law-and-economics scholars to help work this field, which should be fertile ground for them.3 So imagine my delight when the virtual personification of law and …


Avoiding Common Problems In Using Teaching Assistants: Hard Lessons Learned From Peer Teaching Theory And Experience, Edward R. Becker, Rachel Croskery-Roberts Jan 2000

Avoiding Common Problems In Using Teaching Assistants: Hard Lessons Learned From Peer Teaching Theory And Experience, Edward R. Becker, Rachel Croskery-Roberts

Articles

A majority of American law schools rely on teaching assistants to help administer first-year legal writing, research, and analysis (LWRA) courses. Specifically, surveys jointly conducted by the Association of Legal Writing Directors (ALWD) and the Legal Writing Institute (LWI) consistently detail the extensive use many LWRA professors make of teaching assistants. Likewise, Julie Cheslik recognized in her article about her 1994 survey on the use of TAs in the typical LWRA course that "[o]ne of the most prevalent uses of peer teachers in the law school setting is the employment of upper-level law students as teaching assistants in the first-year …


Commentary (Response To Article By H. David Rosenbloom), Reuven S. Avi-Yonah Jan 2000

Commentary (Response To Article By H. David Rosenbloom), Reuven S. Avi-Yonah

Articles

David Rosenbloom has delivered an important lecture on an important topic:' whether exploiting differences between the tax system of two different jurisdictions to minimize the taxes paid to either or both ("international tax arbitrage") is a problem, and if so, whether anything can be done about it in a world without a "world tax organization." As Rosenbloom states, international tax arbitrage is "the planning focus of the future,"2 and recently has been the focus of considerable discussion and debate (for example, upon the promulgation and subsequent withdrawal under fire of Notice 98-11).3 Rosenbloom's lecture is one of the first attempts …


Joe Grano: The 'Kid From South Philly' Who Educated Us All (In Tribute To Joseph D. Grano), Yale Kamisar Jan 2000

Joe Grano: The 'Kid From South Philly' Who Educated Us All (In Tribute To Joseph D. Grano), Yale Kamisar

Articles

No serious student of police interrogation and confessions can write on the subject without building on Professor Joseph D. Grano's work or explaining why he or she disagrees with him (and doing so with considerable care). Nor is that all.


Learning And Serving: Pro Bono Legal Services By Law Students, David L. Chambers, Cynthia F. Adcock Jan 2000

Learning And Serving: Pro Bono Legal Services By Law Students, David L. Chambers, Cynthia F. Adcock

Articles

All lawyers' codes of professional ethics in the United States expect members of the bar to perform legal services for low-income persons. In practice, as we all know, many lawyers perform a great deal of such service while others do little or none. By much the same token, the accreditation rules of the American Bar Association urge all law schools to provide students with opportunities to do pro bono legal work; by much the same token, some schools in the United States have extensive programs for their students but many do not. In 1998, the Association of American Law Schools …