Law Commons^™

Tax Attorneys As Defenders Of Taxpayer Rights, Michelle Lyon Drumbl

Scholarly Articles

What is the modern role of a tax practitioner, in particular a tax attorney, in the United States? In an era in which the Internal Revenue Service (IRS) is underfunded, understaffed, and struggles to address its mission, tax attorneys play an important role as advocates for taxpayer rights.

Tax attorneys act as advocates who represent ordinary individual taxpayers in controversies with the IRS. These controversies include post-filing disputes, such as audits, as well as issues arising with the collection of assessed taxes. Many of these cases are resolved at the administrative level; those that cannot be resolved are litigated, most …

Virginia Bar Exam, July 2019, Section 1

Virginia Bar Exam Archive

No abstract provided.

Virginia Bar Exam, July 2019, Section 2

Virginia Bar Exam Archive

No abstract provided.

Public Relations Litigation, Kishanthi Parella

Scholarly Articles

Conventional wisdom holds that lawsuits harm a corporation’s reputation. So why do corporations and other businesses litigate even when they will likely lose in the court of law and the court of public opinion? One explanation is settlement: some parties file lawsuits not to win but to force the defendant to pay out. But some business litigants defy even this explanation; they do not expect to win the lawsuit or to benefit financially from settlement. What explains their behavior?

The answer is reputation. This Article explains that certain types of litigation can improve a business litigant’s reputation in the eyes …

How Did We Get Here? Dissecting The Hedge Fund Conundrum Through An Institutional Theory Lens, Cary Martin Shelby

Scholarly Articles

This article dissects both the origins and resulting harms of what the author terms the "hedge fund conundrum," in which institutional investors, such as pension plans and endowments, have consistently increased hedge fund allocations over the past decade despite pervasive evidence of excessive fees and subpar returns. It then utilizes an historical institutionalist lens to examine how lawmakers may have enabled a conundrum of this magnitude. By and large, this phenomenon is a symptom of regulatory loopholes that have permitted the private hedge fund market to increase in "publicness" through its expanding access and subsequent harm to retail investors. Such …

Virginia Industrialization Group, Lewis F. Powell Jr.

Powell Correspondence

No abstract provided.

Correspondence With The Chief Justice Of The Supreme Court Of The United States, William H. Rehnquist, Lewis F. Powell Jr.

Powell Correspondence

No abstract provided.

Correspondence With A. Willis Robertson, Lewis F. Powell, Jr.

Powell Correspondence

No abstract provided.

Correspondence With Fellow Associate Justices Of The Supreme Court Of The United States, Lewis F. Powell, Jr.

Powell Correspondence

No abstract provided.

Correspondence With The Chief Justice Of The Supreme Court Of The United States, Warren E. Burger, Lewis F. Powell, Jr.

Powell Correspondence

No abstract provided.

Board Governance For The Twenty-First Century, Faith Stevelman, Sarah C. Haan

Scholarly Articles

A decade after the global financial crisis, corporate governance is in a state of flux. A conceptual shift is underway. Years ago, in "first wave" governance, boards had a cozy relationship with the company C-suite. In "second wave" governance, which took hold in the 1970s, legal academics reimagined the board's role, conceptualizing directors as monitors charged with limiting waste and abuse that can arise in agency relationships. Now, we find ourselves at the threshold of "third wave" governance, in which boards are asked to grapple immediately and candidly with both the financial aspects of business and new environmental, social, and …

Virginia Bar Exam, February 2019, Section 1

Virginia Bar Exam Archive

No abstract provided.

Virginia Bar Exam, February 2019, Section 2

Virginia Bar Exam Archive

No abstract provided.

Is Supervised Release Tolled Retrospective To The Start Of An Unrelated Detention If The Defendant Is Credited With Time Served Upon Sentencing For The New Offense?, Nora V. Demleitner

Scholarly Articles

The district court sentenced Jason Mont for violating his supervised release conditions after a state conviction and sentence that credited him for time in pretrial detention served while he was on supervised release. Mont challenges the court’s exercise of jurisdiction, arguing that 18 U.S.C. § 3624(e) does not permit the court to reach backward to find that supervised release was tolled once he received credit for his pretrial detention at sentencing. Petitioner and respondent disagree about the interpretation of the language and structure of Section 3624(e). While the government relies heavily on the purpose of supervised release, petitioner notes that …

Facebook's Alternative Facts, Sarah C. Haan

Scholarly Articles

In this short essay, I argue that Facebook’s adoption of the alternative-facts frame potentially contributes to the divisiveness that has made social media misinformation a powerful digital tool. Facebook’s choice to present information as “facts” and “alternative facts” endorses a binary system in which all information can be divided between moral or tribal categories—“bad” versus “good” speech, as Sandberg put it in her testimony to Congress. As we will see, Facebook’s related-articles strategy adopts this binary construction, offering a both-sides News Feed that encourages users to view information as cleaving along natural moral or political divisions.

Sustainable And Open Access To Valuable Legal Research Information: A New Framework, Alex Zhang, James Hart

Scholarly Articles

This article evaluates the current status of access to foreign and international legal research information, analyzes the challenges that information providers have experienced in providing valuable and sustainable access, and proposes a model that would help create and facilitate effective and sustainable access to valuable foreign, comparative, and international legal information.

Privatizing Criminal Procedure, John D. King

Scholarly Articles

As the staggering costs of the criminal justice system continue to rise, states have begun to look for nontraditional ways to pay for criminal prosecutions and to shift these costs onto criminal defendants. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. The shift from government funding of criminal litigation to user funding constitutes a privatization of criminal procedure. This intrusion of market ideology …

The Human Element: The Under-Theorized And Underutilized Component Vital To Fostering Blockchain Development, Joshua A.T. Fairfield

Scholarly Articles

This Article constitutes a lightly edited transcription of Joshua Fairfield's oral remarks at the April 6, 2018 Cleveland State Law Review Symposium on Blockchain Law and Technology.

The author posits that there is a tendency to think that technology will emerge triumphant in resolving physical problems, including banking and transactional recording; that there is sort of a "tech-bro utopianism," epitomized by Mark Zuckerberg, suggesting that what we need is a technological, not a human, solution. He states that one major problem is that social technologists, psychologists, historians, linguists, and cultural anthropologists are not on the development teams that are building …

Justice Kavanaugh, Lorenzo V. Sec, And The Post-Kennedy Supreme Court, Matthew C. Turk, Karen E. Woody

Scholarly Articles

This Article analyzes a recent Supreme Court case, Lorenzo v. Securities and Exchange Commission, and explains why it provides a valuable window into the Court's future now that Justice Kennedy has retired and his seat filled by Justice Brett Kavanaugh. Lorenzo is an important case that raises fundamental interpretative questions about the reach of federal securities statutes. But most significant is its unique procedural posture: when the Supreme Court issues its decision on Lorenzo in 2019, Justice Kavanaugh will be recused while the other eight Justices rule on a lower court opinion from the D.C. Circuit in which he wrote …

Felon Disenfranchisement, Nora V. Demleitner

Scholarly Articles

In its broadest forms, felon disenfranchisement excludes even individuals who have long been rehabilitated. Yet they are still treated only as partial citizens. Automatic, long-term restrictions on the franchise are unnecessarily exclusionary. More importantly, they hinder reentry and rehabilitation. Citizens returning from imprisonment, who can vote, have lower rates of recidivism than those who are barred from voting. Re-enfranchisement signals a return to citizenship. It advances and confirms a returning citizen’s full participatory rights. Ultimately, that means we recognize these individuals as having lived up to the expectation of rehabilitation rather than leaving them feeling defeated.

The Right To Migrate: A Human Rights Response To Immigration Restrictionism In Argentina, David C. Baluarte

Scholarly Articles

Within days of President Donald Trump’s 2017 Executive Orders on border security and immigration enforcement, President Mauricio Macri of Argentina issued a Decree to address what he declared was an urgent problem of immigrant criminality. The timing of the two Presidents’ actions triggered concerns that U.S.-style restrictionist immigration regulation was spreading to South America, a continent that has taken progressive steps towards recognizing the human rights of migrants in recent years. Until Macri’s 2017 Decree, Argentina was considered a leader in this regard, with its 2004 immigration law that boldly codified a “right to migrate” and included robust substantive and …

The Arrival Of "Statelessness Studies"?, David C. Baluarte

Scholarly Articles

In this symposium contribution, the author provides a view that the study of statelessness has emerged as a multi-disciplinary field and urge that we institutionalize it as such. Statelessness is fundamentally a legal concept. The definition of ‘stateless person’ specifically refers to the operation of law, and the protections envisioned by both the 1954 and 1961 Conventions afforded to stateless persons are legal in nature. At the same time, formal legal reasoning has proven inadequate to fully understand statelessness and protect stateless persons. Moreover, factual statelessness enjoys few legal protections, but is essential to a more robust understanding of nationality …

The Role Of Women Entrepreneurs In Rebuilding A Nation: The Rwandan Model, Karen E. Woody

Scholarly Articles

This Article contributes to the literature by analyzing the normative shifts within the country's institutions, both pre- and post-genocide, and observes the role of women in restructuring the institutions as a major factor in the success that Rwanda enjoys today. By prioritizing gender equality in the recreation of its legal and economic structures, Rwanda is able to leverage the talents and capabilities of its entire population, and provides a model that can be applied to a number of other countries.

Part I details the historical underpinnings of the Rwandan genocide and humanitarian crisis. Part II addresses the efforts to establish …

From Timbuktu To The Hague And Beyond: The War Crime Of Intentionally Attacking Cultural Property, Mark A. Drumbl

Scholarly Articles

This essay refracts the criminal conviction and reparations order of the International Criminal Court (ICC) in the Al Mahdi case into the much broader frame of increasingly heated public debates over the protection, removal, defacement, relocation, display and destruction of cultural heritage in all forms: monuments, artefacts, language instruction, art and literature. What might the work product of the ICC in the Al Mahdi proceedings -- and international criminal law more generally -- add, contribute or excise from these debates? This essay speculatively explores connections between the turn to penal law to protect cultural property and the transformative impulses that …

What We Teach When We Teach German Constitutional Law: An Introduction To The Collection Memorializing Donald P. Kommers, Russell A. Miller

Scholarly Articles

The author posits that Americans’ interest in German constitutional law can be traced to a single source. Donald Kommers (1932-2018), the political scientist and legal scholar at Notre Dame, pioneered the field of comparative constitutional law and popularized German constitutional jurisprudence in the English speaking world with his groundbreaking study of the German Federal Constitutional Court, and his seminal, English-language treatise on German constitutional law that first published in 1989.

The Defamation Injunction Meets The Prior Restraint Doctrine, Doug Rendleman

Scholarly Articles

In Near v. Minnesota, the Supreme Court added the injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgments. The prior restraint label resembles a death sentence. This article maintains that such massive retaliation is overkill.

A judge’s injunction that forbids the defendant’s tort of defamation tests Near and prior restraint doctrine because defamation isn’t protected by the First Amendment. Arguing that the anti-defamation injunction has outgrown outright bans under the prior restraint rule and the equitable Maxim that “Equity will not enjoin defamation” …

The Post-Truth First Amendment, Sarah C. Haan

Scholarly Articles

Post-truthism is widely understood as a political problem. In this Article, I argue that post-truthism also presents a constitutional law problem—not a hypothetical concern, but a current influence on First Amendment law. Post-truthism, which teaches that evidence-based reasoning lacks value, offers a normative framework for regulating information. Although post-truthism has become a popular culture trope, I argue that we should take it seriously as a theory of decision making and information use, and as a basis for law.

This Article uses the example of compelled speech to explore how post-truth rhetoric and values are being integrated into law. When the …

Will The Supreme Court Rein In “Excessive Fines” And Forfeitures? Don’T Rely On Timbs V. Indiana, Nora V. Demleitner

Scholarly Articles

The U.S. Supreme Court’s decision in Timbs v. Indiana buoyed the hopes of those who saw it as a powerful signal to states and municipalities to rein in excessive fines and forfeitures. One commentator deemed it “a blow to state and local governments, for whom fines and forfeitures have become an important source of funds.” That may have been an overstatement. The Court seems disinclined to fill the term proportionality with robust meaning or wrestle with Eighth Amendment challenges to fines and fees. Those steps would be required for the Excessive Fines Clause to function as an effective backstop against …

Saving Justice: Why Sentencing Errors Fall Within The Savings Clause, 28 U.S.C. § 2255(E), Brandon Hasbrouck

Scholarly Articles

Notwithstanding the extent to which scholars, lawyers, and community organizers are broadening their contestations of the criminal justice system, they have paid insufficient attention to federal sentencing regimes. Part of the reason for this is that sentencing is a “back-end” criminal justice problem and much of our nation’s focus on criminal justice issues privileges “front-end” problems like policing. Another explanation might be that the rules governing sentencing are complex and cannot be easily rearticulated in the form of political soundbites. Yet sentencing regimes are a criminal justice domain in which inequalities abound—and in ways that raise profound questions about fairness, …

Myth Of The Attorney Whistleblower, Carliss N. Chatman

Scholarly Articles

Notwithstanding the political grandstanding and legal regimes put in place to prevent the next Enron, this article explores whether attorney whistleblower provisions provided in the Standards of Professional Conduct for Attorneys Appearing and Practicing Before the Commission in the Representation of an Issuer and in the Model Rules of Professional Conduct are effective. When faced with attorney involvement in Enron, Congress passed § 307 of the Sarbanes Oxley Act (Sarbanes), which required the Securities and Exchange Commission (SEC) to amend its standards governing the conduct of attorneys practicing before the SEC. In response, the SEC and the American Bar Association …