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Articles 1021 - 1050 of 7283
Full-Text Articles in Law
Assumptions About Terrorism And The Brandenburg Incitement Test, Christina E. Wells
Assumptions About Terrorism And The Brandenburg Incitement Test, Christina E. Wells
Faculty Publications
The incitement standard announced in Brandenburg v. Ohio is one of the most familiar tests in the Supreme Court's jurisprudence. It prohibits government officials from punishing advocacy of illegal activity unless it is directed and likely to imminently incite such activity. Brandenburg's standard has become a pillar of free speech law, allowing government officials to protect public safety by punishing only speech intended and likely to create an imminent danger of harm, while protecting even the most abhorrent of speakers from suppression of their speech simply because government officials fear or dislike it. Terrorist advocacy, however, is putting pressure on …
References To Movies In Judicial Opinions And Written Advocacy, Part 1, Douglas E. Abrams
References To Movies In Judicial Opinions And Written Advocacy, Part 1, Douglas E. Abrams
Faculty Publications
In opinions in cases with no claims or defenses concerning movies or the movie industry, trial and appellate judges often help explain substantive or procedural points, or help embellish the discussion, with references to themes, scenes, or characters from well-known films that have held Americans’ attention. Sometimes the reference appears in an opinion of the court, and sometimes it appears in a concurring or dissenting opinion.
Table Of Contents
The Business, Entrepreneurship & Tax Law Review
No abstract provided.
Oira’S Expanded Review Of Tax Regulations And Its Surprising Implications, Bridget C.E. Dooling
Oira’S Expanded Review Of Tax Regulations And Its Surprising Implications, Bridget C.E. Dooling
The Business, Entrepreneurship & Tax Law Review
Executive Order 12866 describes U.S. policy on regulatory planning and review. It directs agencies to identify the nature and significance of the problem they are trying to solve with regulation, to identify alternative solutions, to assess the quantifiable and non-quantifiable costs and benefits of each alternative, and then to choose the option that maximizes net benefits to society, taking into account distributional effects and other considerations. That policy, which has governed U.S. regulation for several decades, is managed by the Office of Information and Regulatory Affairs (“OIRA”). It is also subject to several exemptions. In April 2018, the U.S. Department …
Restoring Internet Freedom As An Example Of How To Regulate, Jerry Ellig
Restoring Internet Freedom As An Example Of How To Regulate, Jerry Ellig
The Business, Entrepreneurship & Tax Law Review
Thomas Lambert’s How to Regulate urges regulators to diagnose the extent and causes of the problems they seek to solve and consider the benefits and costs of alternative solutions. It also warns that government officials are affected by the incentives and knowledge constraints they face, and regulations should be designed to mitigate this problem. The Federal Communications Commission’s Restoring Internet Freedom order provides examples of these principles in practice. In its assessment of blocking, throttling, paid prioritization, and other general business conduct of broadband providers, the order first utilized economic research to identify the extent and causes of the underlying …
No Such Thing As Partial Per Se: Why Jefferson Parish V. Hyde Should Be Abolished In Favor Of A Rule Of Reason Standard For Tying Arrangements, Matthew Hodgson
No Such Thing As Partial Per Se: Why Jefferson Parish V. Hyde Should Be Abolished In Favor Of A Rule Of Reason Standard For Tying Arrangements, Matthew Hodgson
The Business, Entrepreneurship & Tax Law Review
For more than a century, antitrust law has operated under two rules of analysis: rule of reason and per se. In 1984, however, the Supreme Court fabricated a new standard for a particular type of antitrust offense, referred to as the “partial per se” rule. This rule confuses and obscures the analysis taking place in tying arrangements and has no place in American jurisprudence. The rule should be abolished, and in its place, the Court should adopt the rule of reason analysis and elements suggested by Justice O’Connor in the very case from which this “partial” rule originated. By doing …
Madison And Shannon On Social Media, Justin "Gus" Hurwitz
Madison And Shannon On Social Media, Justin "Gus" Hurwitz
The Business, Entrepreneurship & Tax Law Review
The Internet has changed speech, and our traditional understandings of speech regulation are struggling to adapt. This article argues that the Internet has tipped the quantity of information that individuals are exposed to beyond the point which they are able to meaningfully process. This article draws from a range of fields— from Information Theory, to cognitive psychology, to informatics—to provide both empirical and theoretical support for the idea that there is a limit to how much information individuals can meaningfully process and that we have surpassed that limit. This argument poses a direct challenge to bedrock First Amendment concepts such …
The Weinstein Tax: Congress' Attempt To Curb Non-Disclosure Agreements In Sexual Harassment Settlements, Shane Rader
The Weinstein Tax: Congress' Attempt To Curb Non-Disclosure Agreements In Sexual Harassment Settlements, Shane Rader
The Business, Entrepreneurship & Tax Law Review
The Tax Cuts and Jobs Act has been hailed by many as both a significant and sensible tax reform. It lowered the U.S.’s notoriously high corporate tax rates while also providing a tax break for many individual Americans. Although this tax reform has its benefits, this article discusses a troubling provision that has not garnered much attention. This particular provision, incorporated into the Internal Revenue Code as § 162(q), does not allow the deduction of settlement or attorneys’ fees in sexual harassment cases when a settlement is subject to a nondisclosure agreement. Although the intention of this reform was to …
The Mighty Waves Of Regulatory Reform: Regulatory Budgets And The Future Of Cost-Benefit Analysis, James Broughel
The Mighty Waves Of Regulatory Reform: Regulatory Budgets And The Future Of Cost-Benefit Analysis, James Broughel
The Business, Entrepreneurship & Tax Law Review
In the past 70 or 80 years, there have been three “waves” of reforms to the process of creating and managing U.S. federal and state regulations. The first wave began in 1946 with the passage of the federal Administrative Procedure Act, after which states went on to pass and formalize their own administrative procedures. The second wave began decades later in the mid-1970s, ushering in the era of cost-benefit analysis reforms for regulations. This article focuses on the third wave of regulatory reforms that appears to be sweeping the nation and includes a prediction that the next wave may include …
Be There In A Tif: What Is Tif And Missouri's Need Of Reform, James Bernskoetter
Be There In A Tif: What Is Tif And Missouri's Need Of Reform, James Bernskoetter
The Business, Entrepreneurship & Tax Law Review
Tax Increment Financing (“TIF”) is an economic development tool used by local municipalities to lure investment to areas that would not normally receive any. The process starts by having a local municipality or developer propose a redevelopment plan for a particular area. This area must fall into a statutory definition to be eligible for TIF and a “but-for” analysis is required, along with a proposal to a TIF commission. They then will move to approve or disapprove the proposal; if approved, the plan can be implemented for a defined duration. During the implementation, the purpose is for the investment plan …
When The Hot Stove Goes Cold: The Tcja, Baseball Contracts, And Avoiding An Administrative Nightmare, Zachary T. Robinson
When The Hot Stove Goes Cold: The Tcja, Baseball Contracts, And Avoiding An Administrative Nightmare, Zachary T. Robinson
The Business, Entrepreneurship & Tax Law Review
In 2017, Congress passed the Tax Cuts and Jobs Act, a sweeping tax reform bill which altered huge swaths of the Internal Revenue Code. Among the numerous changes was an alteration to § 1031 of the Code, which defers taxable gains for taxpayers exchanging property with other taxpayers for similar property; more specifically, the Act limited this section to real property.
Regulatory Reform At The State Level: A Guide To Cutting Red Tape For Governors And Executive Branch Officials, Justin D. Smith
Regulatory Reform At The State Level: A Guide To Cutting Red Tape For Governors And Executive Branch Officials, Justin D. Smith
The Business, Entrepreneurship & Tax Law Review
This article provides recommendations for governors and other executive branch officials to consider when implementing regulatory reform. Studies have shown that regulatory reform is needed because of the substantial impact on the economy, consumers, and businesses. Recent technological advances have allowed regulations to be quantified by a metric known as regulatory restrictions, which counts uses of “shall,” “must,” “may not,” “prohibited,” and “required.” Quantifying regulatory restrictions allows for comparison of the regulatory scope between states. State-level regulatory reform directed by governors has primarily occurred in three waves following elections in 1994, 2010, and 2016. These reforms have achieved significant results …
Regulation: A View From Inside The Machine, Hester M. Peirce
Regulation: A View From Inside The Machine, Hester M. Peirce
The Business, Entrepreneurship & Tax Law Review
This is a transcript of the keynote address virtually delivered by Hester M. Peirce at the symposium “Protecting the Public While Fostering Innovation and Entrepreneurship: First Principles for Optimal Regulation,” hosted at the University of Missouri School of Law on February 8, 2019. The transcript of this address was initially published on the official website of the Securities and Exchange Commission; it has been lightly edited to ensure readability and formatting continuity.
The Case For Doing Nothing About Institutional Investors' Common Ownership Of Small Stakes In Competing Firms, Thomas A. Lambert, Michael E. Sykuta
The Case For Doing Nothing About Institutional Investors' Common Ownership Of Small Stakes In Competing Firms, Thomas A. Lambert, Michael E. Sykuta
Faculty Publications
Recent empirical research purports to demonstrate that institutional investors' "common ownership " of small stakes in competing firms causes those firms to compete less aggressively, injuring consumers. A number of prominent antitrust scholars have cited this research as grounds for limiting the degree to which institutional investors may hold stakes in multiple firms that compete in any concentrated market. This Article contends that the purported competitive problem is overblown and that the proposed solutions would reduce overall social welfare. With respect to the purported problem, we show that the theory of anti-competitive harm from institutional investors' common ownership is implausible …
British Impeachments (1376-1787) And The Preservation Of The American Constitutional Order, Frank O. Bowman Iii
British Impeachments (1376-1787) And The Preservation Of The American Constitutional Order, Frank O. Bowman Iii
Faculty Publications
Impeachment is a British invention, employed by Parliament beginning in 1376 to resist the general tendency of the monarchy to absolutism and to counter particularly obnoxious royal policies by removing the ministers who implemented them. The invention crossed the Atlantic with the British colonists who would one day rebel against their mother country and create an independent United States of America. During the Constitutional Convention of 1787, the delegates decided that presidents and other federal officers could be impeached, but they recoiled from the severe and occasionally fatal punishments imposed by Parliament, and they wrestled over what conduct should be …
Moving Beyond Medical Debt, Brook E. Gotberg, Michael D. Sousa
Moving Beyond Medical Debt, Brook E. Gotberg, Michael D. Sousa
Faculty Publications
In recent years it has become clear that medical costs are imposing severe financial burdens on American families, sometimes to the point that bankruptcy becomes the only escape from crippling debt. When evaluating the well-established connection between outstanding medical debt and consumer bankruptcy, most existing empirical studies attempt to quantify the percentage of consumer bankruptcies that are "caused" by unmanageable medical indebtedness. This Article addresses what we believe to be a more significant line of empirical inquiry, namely, the connection between health insurance coverage and consumer bankruptcy as a more precise measurement of how national health insurance programs may or …
Mind The Gap: Bringing Technology To The Mediation Table, Alyson Carrel, Noam Ebner
Mind The Gap: Bringing Technology To The Mediation Table, Alyson Carrel, Noam Ebner
Journal of Dispute Resolution
As technology impacts every aspect of our lives, all professions are exploring how to benefit from use of technology. Mediation is no exception. Since the mid-1990s, the field has explored applying technology to resolve conflict. At an early point this exploration narrowed in on substituting physical convening with wholly-online processes. Conflating “technology” with “online,” however, left an entire practice area unaddressed, a gap we need to mind: application of technology to support traditional, in-person mediation processes. Indeed, today, most mediation processes are largely bereft of technology. This Article suggests that by not minding the gap, traditional mediation forgoes opportunities to …
Relational Preferences In Chapter 11 Proceedings, Brook E. Gotberg
Relational Preferences In Chapter 11 Proceedings, Brook E. Gotberg
Faculty Publications
It is no secret that creditors hate so-called "preference" actions, which permit a debtor to recover payments made to creditors on the eve of bankruptcy for the benefit of the estate. Nominally, preference actions are intended to equalize the extent to which each unsecured creditor must bear the loss of a bankruptcy discharge, or to discourage creditors from rushing to collect from the debtor in such a way that will push an insolvent debtor into bankruptcy. But empirical evidence strongly suggests that, at least in chapter 11 reorganization proceedings, preference actions do not fulfill either of these stated goals. Interviews …
Vouchers And Affordable Housing: The Limits Of Choice In The Political Economy Of Place, Rigel C. Oliveri
Vouchers And Affordable Housing: The Limits Of Choice In The Political Economy Of Place, Rigel C. Oliveri
Faculty Publications
America's housing segregation problem, and the direct role of government and private actors in creating it, is well documented. What to do about it is less clear. And even when consensus develops about particular strategies, they can be difficult to implement because of significant headwinds that impede change. These headwinds-including market forces, government policies, and private prejudices-continue to stymie progress, and even well-intentioned reform efforts can fail at best and lead to negative consequences at worst. This piece seeks not to provide answers, but rather to describe one such set of reforms and headwinds and to propose some modest policy …
Blockchain And The Inevitability Of Disputes: The Role For Online Dispute Resolution, Orna Rabinovich-Einy, Ethan Katsch
Blockchain And The Inevitability Of Disputes: The Role For Online Dispute Resolution, Orna Rabinovich-Einy, Ethan Katsch
Journal of Dispute Resolution
Blockchain seems to be everywhere these days. It is touted as the new foolproof technology, which can be used for everything from cryptocurrencies, through land registries to identity cards and health records. Enthusiasts have predicted that it will bring about deep change, ensuring data security and identity authentication, while doing away with traditional intermediaries. With blockchain we are told that it is the “new internet,” an application that will change the way we transact—strengthening commitments and ensuring seamless execution. At the same time, and at an alarming frequency, we hear about mass scale fraudulent schemes attacking cryptocurrency exchanges, resulting in …
“I Like You When You Are Silent”: The Future Of Ndas And Mandatory Arbitration In The Era Of #Metoo, Jonathan Ence
“I Like You When You Are Silent”: The Future Of Ndas And Mandatory Arbitration In The Era Of #Metoo, Jonathan Ence
Journal of Dispute Resolution
On October 5, 2017, the New York Times published an exposé of Harvey Weinstein, an influential film producer, which sparked what came to be known as the #METOO movement. As part of the report, Ashley Judd and numerous other actresses outed Weinstein for using his position of power to rape, sexually assault, and sexually abuse them–accusations that spanned over thirty years. Inspired by the courage of these women, countless others came forward to share their stories of sexual assault by individuals in positions of power. Survivors of sexual assault appeared to garner strength against their attackers as men in power …
Designing And Implementing A State Court Odr System: From Disappointment To Celebration, David Allen Larson
Designing And Implementing A State Court Odr System: From Disappointment To Celebration, David Allen Larson
Journal of Dispute Resolution
State court systems rather suddenly are showing a tremendous interest in adopting court-integrated ODR systems. I have been involved with ODR system design for almost twenty years, and for the great majority of that time all the significant progress came from independent private sector alternative dispute resolution providers such as Modria (now part of Tyler Technologies Inc) and SmartSettle, or business-specific embedded systems like the one for eBay. Courts systems now are increasingly interested in ODR, which is significant because sustainability has been one of the greatest challenges for private independent ODR providers. The financial support that a judicial system …
Online Dispute Resolution For Smart Contracts, Amy J. Schmitz, Colin Rule
Online Dispute Resolution For Smart Contracts, Amy J. Schmitz, Colin Rule
Journal of Dispute Resolution
Smart contracts built in the blockchain are quietly revolutionizing traditional transactions despite their questionable status under current law. At the same time, disputes regarding smart contracts are inevitable, and parties will need means for dealing with smart contract issues. This Article tackles this challenge, and proposes that parties turn to online dispute resolution (“ODR”) to efficiently and fairly resolve smart contract disputes. Furthermore, the Article acknowledges the benefits and challenges of current blockchain ODR start-ups, and proposes specific ideas for how designers could address those challenges and incorporate ODR to provide just resolutions that will not stymie efficiencies of smart …
Why Mediation & “Sorry” Make Sense: Apology Statutes As A Catalyst For Change In Medical Malpractice, Zaina Afrassiab
Why Mediation & “Sorry” Make Sense: Apology Statutes As A Catalyst For Change In Medical Malpractice, Zaina Afrassiab
Journal of Dispute Resolution
Children are taught the most basic common courtesy, apologizing, not long after they learn to speak. While children are expected to say, “I’m sorry,” there are different expectations of and consequences for adults, particularly in professional settings. “As we age, it becomes more difficult to acknowledge harms caused because . . . we are . . . afraid of the consequences that truth-telling sometimes demands.” Can physicians tell patients they are sorry? Should they? In recent years, amidst an ever-increasing fear of litigation, so-called physician apology laws have gained traction in the United States. In fact, apology laws—revisions of state …
Mandatory Arbitration Clauses For Shareholders: An Efficient Solution Or An Unconscionable Change?, George Fowler
Mandatory Arbitration Clauses For Shareholders: An Efficient Solution Or An Unconscionable Change?, George Fowler
Journal of Dispute Resolution
While speaking before the Heritage Foundation in the summer of 2017, Michael Piwowar, Commissioner of the SEC, sparked controversy when he mentioned that companies undertaking IPOs may have an option to include mandatory shareholder arbitration provisions. Following this statement, he went as far as suggesting that companies that have considered undertaking IPOs should “come to us to ask for relief to put in mandatory arbitration into their charters.” This “relief” refers to “the SEC … revers[ing] its position that arbitration violates the Securities and Exchange Act of 1934, bringing the commission back in line with current Supreme Court precedent.” While …