Law Commons^™

Deconstructing The General Plan Of Rehabilitation, John W. Lee

Faculty Publications

The general plan of rehabilitation doctrine provides that expenses incurred as part of a plan of general rehabilitation must be capitalized even though the same expenses incurred separately would be deductible as ordinary and necessary repairs. The emerging general standard after INDOPCO for current deduction of an expenditure with future benefits, the case with most repair/ improvement expenditures, is a balancing test: Whether the taxpayer ’s administrative and record keeping costs associated with capitalization outweigh the potential distortion of income from a current deduction of the future benefit expenditures. “Rough justice” rules for current deduction of future benefits expenditures, reflecting …

Drawing The Line Between Taxes And Takings: The Continuous Burdens Principle, And Its Broader Application, Eric Kades

Faculty Publications

No abstract provided.

The Federalism-Rights Nexus: Explaining Why Senate Democrats Tolerate Rehnquist Court Decision Making But Not The Rehnquist Court, Neal Devins

Faculty Publications

No abstract provided.

To What Extent Does The Power Of Government To Determine The Boundaries And Conditions Of Lawful Commerce Permit Government To Declare Who May Advertise And Who May Not?, William W. Van Alstyne

Faculty Publications

No abstract provided.

A Fourth Amendment "Search" In The Age Of Technology: Postmodern Perspectives, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

The End Of The Hudson Valley's Peculiar Institution: The Anti-Rent Movement's Politics, Social Relations, & Economics, Eric Kades

Faculty Publications

No abstract provided.

Transaction Costs Relating To Acquisition Or Enhancement Of Intangible Property: A Populist, Political, But Practical Perspective, John W. Lee

Faculty Publications

No abstract provided.

Federal Judicial Selection As War, Part Three: The Role Of Ideology, Michael J. Gerhardt

Faculty Publications

No abstract provided.

The Metes And Bounds Of State Sovereign Immunity, Scott Dodson

Faculty Publications

What are the constitutional parameters of state sovereign immunity? The Court has made clear that certain provisions of Article I contain no authority for overriding state sovereign immunity, while at least one other provision, the Fourteenth Amendment, permits Congress to abrogate the states’ sovereign immunity. How is this constitutional line drawn? It is temporally bound? In other words, are only certain Amendments enacted after the Eleventh Amendment free from absolute subservience to state sovereign immunity? Or, does it divide the original Constitution and its Amendments, meaning that state sovereign immunity permeates the original Constitution but does not infiltrate certain Amendments, …

Crisis And Constitutionalism, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Recent Developments Concerning Environmental Law And Agriculture, Linda A. Malone

Faculty Publications

No abstract provided.

Justice Unconceived: How Posterity Has Rights, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

Marbury Ascendant: The Rehnquist Court And The Power To "Say What The Law Is", Timothy Zick

Faculty Publications

No abstract provided.

Book Review Of Sarah Barringer Gordon's The Mormon Question: Polygamy And Constitutional Conflict In Nineteenth-Century America, Nathan B. Oman

Faculty Publications

No abstract provided.

After Ellerth: The Tangible Employment Action In Sexual Harassment Analysis, Susan Grover

Faculty Publications

In this Article, Professor Grover argues that courts too readily allow employers to avoid vicarious liability far supervisors' unlawful sexual harassment of subordinates. The Article explores the breadth of the affirmative defense first introduced in the Supreme Court's 1998 cases of Faragher v. Boca Raton and Burlington Indus., Inc. v. Ellerth. That defense clears an employer of liability for a supervisor's unlawful sexual harassment if (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer …

Predicting Defection, Elmer J. Schaefer

Faculty Publications

No abstract provided.

Habeas Review Of Perfunctory State Court Decisions On The Merits, Scott Dodson

Faculty Publications

This article discusses the appropriate standard of review a federal habeas court should use to review a state-court determination of federal law unaccompanied by a federally-based rationale. In other words, what standard of review does the federal court employ when the state court’s opinion is wholly composed of the phrases: “The claims are without merit. Denied.”? The Supreme Court has not explicitly resolved the issue, and various federal judges around the country have reached different opinions. This article argues that a close scrutiny of the controlling habeas corpus statute, relevant case law, and policy considerations leads to the conclusion that …

The Steel Seizure Case: One Of A Kind?, Neal Devins, Louis Fisher

Faculty Publications

No abstract provided.

Harmony And Diversity In Global Patent Law, John F. Duffy

Faculty Publications

The second half of the twentieth century saw the rise of a broad movement to harmonize patent laws across nation-states. The most recent, and most significant, manifestation of this movement is the 1994 TRIPS Agreement, which requires signatory nations to adopt uniform rules on many major issues of patent law. The TRIPS Agreement has now been implemented by well over one hundred countries, including almost all major industrial nations, and it heralds a new level of international uniformity in patent law.

This Article, while acknowledging the value of some harmonization of national law , explores the possible costs of the …

The Law And Economics Of Consumer Finance, Richard M. Hynes, Eric A. Posner

Faculty Publications

No abstract provided.

The Law: Defending Congress’S Interests In Court: How Lawmakers And The President Bargain Over Department Of Justice Representation, Neal Devins

Faculty Publications

In understanding the willingness of government lawyers to defend the constitutionality of federal statutes, this article will explain why presidents rarely make use of their powers under the Constitution (allowing the president to refuse to defend laws he finds unconstitutional) and under federal law (placing the control of most government litigation with the attorney general). Attention will be paid both to how Department of Justice lawyers enhance their power by defending federal statutes and to how Congress, if need be, can pressure the department to bow to lawmaker preferences. In consequence, when the president refuses to defend a statute, courts …

Book Review Of Mental Disability In Victorian England: The Earlswood Asylum 1847-1901, Michael Ashley Stein

Faculty Publications

No abstract provided.

An Equity Paradigm For Preventing Genetic Discrimination, Anita Silvers, Michael Ashley Stein

Faculty Publications

No abstract provided.

Contract Rights And Civil Rights, Davison M. Douglas

Faculty Publications

No abstract provided.

Disease Management And Liability In The Human Genome Era, Larry I. Palmer

Faculty Publications

No abstract provided.

The Sec's Suspension And Bar Powers In Perspective, Jayne W. Barnard

Faculty Publications

Enron has brought about demands from many quarters to grant the Securities and Exchange Commission (SEC) new powers. Among the powers the SEC now seeks is the power to bar or suspend securities law violators from serving as an oflicer or director of any public company. Currently, the law assigns this power only to federal district courts. In this Essay, Professor Barnard traces the history of the current law; examining why Congress has expressly withheld suspension and bar powers from the SEC. She then argues that the courts have exercised their suspension and bar powers wisely, and that recent developments …

Disability, Employment Policy, And The Supreme Court, Michael Ashley Stein

Faculty Publications

No abstract provided.

The Festo Decision And The Return Of The Supreme Court To The Bar Of Patents, John F. Duffy

Faculty Publications

No abstract provided.

Optimal Bankruptcy In A Non-Optimal World, Richard M. Hynes

Faculty Publications

Consumer bankruptcy insures individuals against misfortune. Like other forms of insurance, bankruptcy reduces an individual's incentive to guard against misfortune and provides her with an incentive to overstate her need for relief. The "first-best," or optimal, bankruptcy system, like the first-best tax or public assistance system, solves these moral hazards without any loss of efficiency. In bankruptcy, this first-best approach would deny relief to debtors responsible for their own distress and reduce the deserving debtors' obligations to an amount commensurate with their ability to pay. While the Bankruptcy Code tries (in part) to follow this first-best approach, such a utopian …

On Revolution And Wetland Regulations, Michael J. Gerhardt

Faculty Publications

No abstract provided.