Law Commons^™

Non-Profit Hospitals, Tax Exemptions And Access For The Uninsured, Mary Crossley

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These comments approach the topic of tax exemption for non-profit hospitals from the perspective of the 46 plus million Americans who have no health insurance and the significant additional number who are underinsured. In essence, persons who are underinsured have some form of health coverage but they remain at serious risk for significant out-of-pocket expenditures when they become sick. From this perspective, the key question is what role, if any, do the non-profit health care sector and, more particularly, non-profit hospitals have to play in addressing the vexing problems posed by the large number of uninsured and underinsured. These problems …

Core Values In Conflict: The United States Approach To Economic Assistance To The Elderly, Lawrence A. Frolik

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In devising programs to assist the elderly, the United States has, for the most part, rejected the social welfare model, which is premised on a belief that the government has an obligation to care for the elderly. Many Americans believe that beyond a minimum safety net, the government should not, and likely cannot, save everyone from every bad outcome. Individuals must accept personal responsibility and care for themselves. As a result of this conflict in values, the United States does not usually operate programs modeled on social insurance, but rather provides care to those identified as 'needy'. The degree of …

A Theory Of Adjudication: Law As Magic, Jessie Allen

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This article takes a new approach to the problem of legal rationality. In the 1920s and 1930s the Legal Realists criticized judicial decisions as "magic solving words" and "word ritual." Though the Realist critique continues to shape American jurisprudence, the legal magic they observed has never been seriously explored. Here, drawing on anthropological studies of magic and ritual, I reconsider the irrational legal techniques the Realists exposed. My thesis is that the Realists were right that law works like magic, but wrong about how magic works. That is, they were right that adjudication makes use of a particular combination of …

Deconstructing The Duty To The Tax System: Unfettering Zealous Advocacy On Behalf Of Lesbian And Gay Taxpayers, Anthony C. Infanti

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In this article, I consider how the tax lawyer's generally-acknowledged duty to the tax system should be applied in the representation of lesbian and gay clients. Due to the significant initial advantages that taxpayers are thought to have over the government in the tax compliance and enforcement process, this duty to the tax system requires a tax lawyer to avoid both questionable positions and the temptation to play the audit "lottery." The tax lawyer is asked to temper the zealousness of her advocacy in this way in order to preserve the integrity and, ultimately, the proper functioning of the tax …

The Heart Of The Game: Putting Race And Educational Equity At The Center Of Title Ix, Deborah L. Brake, Verna L. Williams

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This article examines how race and educational equity issues shape women's sports experiences, building upon the narrative of Darnellia Russell, a high school basketball player profiled in the documentary The Heart of the Game. Darnellia is a star player who, because of an unintended pregnancy, has to fight to play the game she loves.

This girl's story provides a unique and underutilized lens through which to examine gender and athletics, as well as evaluate the legal framework for gender equality in sport. In focusing on this narrative, we seek to give voice to black female athletes and to express their …

What Counts As 'Discrimination' In Ledbetter And The Implications For Sex Equality Law, Deborah L. Brake

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This article, presented at a Symposium, The Roberts Court and Equal Protection: Gender, Race and Class held at the University of South Carolina School of Law in the Spring of 2008, explores the implications of the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co. for sex equality law more broadly, including equal protection. There is more interrelation between statutory and constitutional equality law as a source of discrimination protections than is generally acknowledged. Although the Ledbetter decision purports to be a narrow procedural ruling regarding the statute of limitations for Title VII pay discrimination claims, at its …

Intellectual Property And Americana, Or Why Ip Gets The Blues, Michael J. Madison

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This essay, prepared as part of a Symposium on intellectual property law and business models, suggests the re-examination of the role of intellectual property law in the persistence of cultural forms of all sorts, including (but not limited to) business models. Some argue that the absence of intellectual property law inhibits the emergence of durable or persistent cultural forms; copyright and patent regimes are justified precisely because they supply foundations for durability. The essay tests that proposition via brief reviews of three persistent but very different cultural models, each of which represents a distinct form of American culture: The Rocky …

Baghdad Booksellers, Basra Carpet Merchants, And The Law Of God And Man: Legal Pluralism And The Contemporary Muslim Experience, Haider Ala Hamoudi

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There is a crisis in our law schools in the study of Islamic law and the law of the Muslim polities. The current approaches either focus exclusively on national codes to the derogation of other vitally important influences on the legal order, most importantly the body of norms and rules derived from Islamic foundational texts known as the shari'a, or they regard as secondary, and at times irrelevant, the actual legal order of the societies in favor of an academic construction of the theories of medieval Muslim jurists. Neither of these approaches reflects with a necessary degree of accuracy the …

Who Owns 'Hillary.Com'? Political Speech And The First Amendment In Cyberspace, Jacqueline D. Lipton

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In the lead-up to the next presidential election, it will be important for candidates both to maintain an online presence and to exercise control over bad faith uses of domain names and web content related to their campaigns. What are the legal implications for the domain name system? Although, for example, Senator Hillary Clinton now owns "hillaryclinton.com", the more generic "hillary.com" is registered to a software firm, Hillary Software, Inc. What about "hillary2008.com"? It is registered to someone outside the Clinton campaign and is not currently in active use. This article examines the large gaps and inconsistencies in current domain …

Book Review Of 'Havens In A Storm: The Struggle For Global Tax Regulation', Anthony C. Infanti

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This short essay is a review of J.C. Sharman's book Havens in a Storm: The Struggle for Global Tax Regulation. In the essay, I first provide a brief overview of Sharman's book, which approaches the Organisation for Economic Co-operation and Development's struggle with tax havens over harmful tax competition from a political science perspective. I then describe how the book (and, by extension, this review) will be of interest not only to those in the fields of international tax and international relations, but also to those concerned more generally with the dynamics of struggles between the powerful and the weak. …

A Winning Solution For Youtube And Utube? Corresponding Trademarks And Domain Name Sharing, Jacqueline D. Lipton

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In June of 2007, the United States District Court for the Northern District of Ohio ruled on a motion to dismiss various claims against the Youtube video-sharing service. The claimant was Universal Tube and Rollform Equipment Corp ("Universal"), a manufacturer of pipes and tubing products. Since 1996, Universal has used the domain name utube.com - phonetically the same as Youtube's domain name, youtube.com. Youtube.com was registered in 2005 and gained almost-immediate popularity as a video-sharing website. As a result, Universal experienced excessive web traffic by Internet users looking for youtube.com and mistakenly typing utube.com into their web browsers. Universal's servers …

The Meaning Of Race In The Dna Era: Science, History And The Law, Christian Sundquist

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The meaning of “race” has changed dramatically over time. Early theories of race assigned social, intellectual, moral and physical values to perceived physical differences among groups of people. The perception that race should be defined in terms of genetic and biologic difference fueled the “race science” of the Eighteenth and Nineteenth centuries, during which time geneticists, physiognomists, eugenicists, anthropologists and others purported to find scientific justification for denying equal treatment to non-white persons. Nazi Germany applied these understandings of race in a manner which shocked the world, and following World War II the concept of race increasingly came to be …

Tax Equity, Anthony C. Infanti

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Simply put, this article stands the traditional concept of tax equity on its head. Challenging the notion that tax equity is an unequivocal good, this article deconstructs the concept of tax equity to reveal the subtle, yet pernicious ways in which it shapes tax policy debates and impinges upon contributions to those debates. The article describes how tax equity, with its narrow focus on income - as the sole relevant metric for judging tax fairness, presupposes a population that is homogeneous along all other lines. Through this insidious homogenization, tax equity performs both a sanitizing and a screening function in …

Tax As Urban Legend, Anthony C. Infanti

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In this essay, I review UC-Berkeley history professor Robin Einhorn's book, American Taxation, American Slavery. In this provocatively-titled book, Einhorn traces the relationship between democracy, taxation, and slavery from colonial times through the antebellum period. By re-telling some of the most familiar set piece stories of American history through the lens of slavery, Einhorn reveals how the stories that we tell ourselves over and over again about taxation and politics in America are little more than the stuff of urban legend.

In the review, I provide a brief summary of Einhorn's discussion of the relationship between slavery and colonial taxation, …

When Judges Are Accused: An Initial Look At The New Federal Judicial Misconduct Rules, Arthur D. Hellman

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On March 11, 2008, the Judicial Conference of the United States, the administrative policy-making body of the federal judiciary, approved the first set of nationally binding rules for dealing with accusations of misconduct by federal judges. The new rules implement recommendations made by a committee chaired by Supreme Court Justice Stephen Breyer. The Breyer Committee found that although the judiciary has been doing a very good overall job in handling complaints against judges, the error rate in high-visibility cases is far too high.

The new regulatory regime comes into existence at a time when federal judges have been accused of …

Celebrity In Cyberspace: A Personality Rights Paradigm For Personal Domain Name Disputes, Jacqueline D. Lipton

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When the Oscar-winning actress, Julia Roberts, fought for control of the domain name, what was her aim? Did she want to reap economic benefits from the name? Probably not, as she has not used the name since it was transferred to her. Or did she want to prevent others from using it on either an unjust enrichment or a privacy basis? Was she, in fact, protecting a trademark interest in her name? Personal domain name disputes, particularly those in the space, implicate unique aspects of an individual's persona in cyberspace. Nevertheless, most of the legal rules developed for these disputes …

Prolonged Solitary Confinement And The Constitution, Jules Lobel

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This Article will address whether the increasing practice of prolonged or permanent solitary confinement constitutes cruel and unusual punishment in violation of the Constitution, and whether it violates the due process rights of the prisoners so confined. It will not only look at United States case law, but at the jurisprudence of international human rights courts, commissions, and institutions. As the U.S. Supreme Court has noted, international jurisprudence can be helpful in determining the scope and meaning of broad terms in our Constitution such as “cruel and unusual punishments” or “due process,” as those terms ought to be understood in …

'The Law Of The Circuit' Revisited: What Role For Majority Rule?, Arthur D. Hellman

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In April 2017, the Fourth Circuit Court of Appeals announced that the full 15-judge court would convene to hear the challenge to President Trump’s executive order “to protect the Nation from terrorist activities by foreign nationals admitted to the United States.” This was a significant departure from the usual practice in the federal courts of appeals. Initial en banc hearing is extremely unusual, and rehearing en banc after a panel decision is almost as rare.

Ordinarily, two features define the ordinary course of adjudication in the federal courts of appeals. First, cases are heard and decided by panels of three …