Law Commons^™

Asymmetries And Incentives In Plea Bargaining And Evidence Production, Saul Levmore, Ariel Porat

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Legal rules severely restrict payments to fact witnesses, though the government can often offer plea bargains or other nonmonetary inducements to encourage testimony. This asymmetry is something of a puzzle, for most asymmetries in criminal law favor the defendant. The asymmetry seems to disappear when physical evidence is at issue. One goal of this Essay is to understand the distinctions, or asymmetries, between monetary and nonmonetary payments, testimonial and physical evidence, and payments by the prosecution and defense. Another is to suggest ways in which law could better encourage the production of evidence, and thus the efficient reduction of crime, …

Historical Gloss: A Primer, Alison Lacroix

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No abstract provided.

Comments On Law And Versteeg's 'The Declining Influence Of The United States Constitution', Tom Ginsburg, Zachary Elkins, James Melton

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No abstract provided.

Custom, General Principles And The Great Architect Cassese, Mary Fan

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Major advances in international criminal law and procedure rose on the trusses of judicially elucidated sources of international law—custom and general principles. These sources depend on the crucial art of derivation advanced by the architect of modern international criminal justice, President Antonio Cassese. What has transformed international criminal justice into flourishing law able to address changing configurations of violence is the development of the art of finding law in the dark and wilds of murky unwritten norms. [para] President Cassese pioneered paths through a perilous bog. "[T]he law lives in persons," and to understand the law one must study the …

Exchanging Information Without Intellectual Property, Michael J. Burstein

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Contracting over information is notoriously difficult. Nearly fifty years ago, Kenneth Arrow articulated a “fundamental paradox” that arises when two parties try to exchange information. To complete such a transaction, the buyer of information must be able to place a value on the information. But once the seller discloses the information, the buyer can take it without paying. The conventional solution to this disclosure paradox is intellectual property. If the information is protected by a patent or a copyright then the seller can disclose the information free in the knowledge that the buyer can be enjoined against making, using, or …

Picturing Takings, Lee Anne Fennell

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Takings doctrine, we are constantly reminded, is unclear to the point of incoherence. The task offinding our way through it has become more difficult, and yet more interesting, with the Supreme Court's recent, inconclusive foray into the arena of judicial takings in Stop the Beach Renourishment. Following guideposts in Kelo, Lingle, and earlier cases, this essay uses a series of simple diagrams to examine how elements of takings jurisprudence fit together with each other and with other limits on governmental action. Visualizing takings in this manner yields surprising lessons for judicial takings and for takings law more generally.

Becoming The Fifth Branch, William A. Birdthistle, M. Todd Henderson

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No abstract provided.

Putting State Courts In The Constitutional Driver's Seat: State Taxpayer Standing After Cuno And Winn, Edward A. Zelinsky

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This article explores the implications of the U.S. Supreme Court’s decisions in DaimlerChrysler Corp. v. Cuno and Arizona Christian School Tuition Organization v. Winn. In Cuno and Winn, the Court held that state taxpayers lacked standing in the federal courts. Because the states have more liberal taxpayer standing rules than do the federal courts, Cuno and Winn will not terminate taxpayers’ constitutional challenges to state taxes and expenditures, but will instead channel such challenges from the federal courts (where taxpayers do not have standing) to the state courts (where they do). Moreover, municipal taxpayer standing in the federal courts, which …

Accountability And The Sri Lankan Civil War, Steven R. Ratner

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Sri Lanka's civil war came to a bloody end in May 2009, with the defeat of the Liberation Tigers of Tamil Eelam (LTTE) by Sri Lanka's armed forces on a small strip of land in the island's northeast. The conflict, the product of long-standing tensions between Sri Lanka's majority Sinhalese and minority Tamils over the latter's rights and place in society, had begun in the mid-1980s and ebbed and flowed for some twenty-five years, leading to seventy to eighty thousand deaths on both sides. Government repression of Tamil aspirations was matched with ruthless LTTE tactics, including suicide bombings of civilian …

Can Consumers Control Health-Care Costs?, Mark A. Hall, Carl E. Schneider

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The ultimate aim of health care policy is good care at good prices. Managed care failed to achieve this goal through influencing providers, so health policy has turned to the only market-based option left: treating patients like consumers. Health insurance and tax policy now pressure patients to spend their own money when they select health plans, providers, and treatments. Expecting patients to choose what they need at the price they want, consumerists believe that market competition will constrain costs while optimizing quality. This classic form of consumerism is today’s health policy watchword. This article evaluates consumerism and the regulatory mechanism …

Rehabilitation, Research, And Reform: Prison Policy In Ireland, Mary Rogan

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The paper tracks the concept of rehabilitation within official thinking in

Ireland since the foundation of the State. It explores when and how the term was first

used and how it has fared since. It then examines barriers to and the role of research

in the making of prison policy and comments on data deficits in the system at present.

Finally it looks at the role of interest groups within the criminal justice system in

Ireland, and specifically their effect, or potential effect, on the formation of prison

policy.

Foreign Affairs Federalism And The Limits Of Executive Power, Zachary D. Clopton

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No abstract provided.

Taking, Tort, Or Crown Right? The Confused Early History Of Government Patent Policy, Sean M. O'Connor

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From the early days of the Republic, Congress and the federal courts grappled with the government’s rights to own or use patents it issued. Courts rejected the British “Crown Rights” rule that allowed the sovereign to practice whatever patents it issued. Instead, the federal government was conceptualized as a legal person on par with any other persons with regard to issued patents. But, this simple rule presented challenges as complexities arose in three intertwined patent rights scenarios. The first involved inventions by government employees. The second revolved around government and government contractor use of patents held by private citizens. And …

Sales Between A Partnership And Non-Partners, Douglas A. Kahn

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The code denies a deduction for a loss recognized on a sale or exchange between certain related parties. Two of the principal code sections that deny a deduction in that circumstance are sections 267(a)(1) and 707(b)(1)(A). Two regulatory provisions promulgated under section 267 apply the denial of a loss deduction rule to partnerships — reg. section 1.267(b)-1(b) and temp. reg. section 1.267(a)-2T(c), Question 2. I conclude that to the extent reg. section 1.267(b)-1(b) applies to section 267(a)(1), it is invalid and has been invalid since 1986. Also, two of the questions and answers in the temporary regulation are invalid.

Contribution Of A Built-In Loss To A Partnership, Douglas A. Kahn

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Before 2004, it was possible to use the partnership tax provisions of the code to shift the benefit ofa loss deduction for a decline in property valuefrom the person who incurred it to another person.One method of accomplishing that goal involvedthe contribution of depreciated property to a partnership.

Retirees Beware: Don't Worry About The British-- 2013 Is Coming, Douglas A. Kahn, Lawrence W. Waggoner

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Retirees beware. The easy money policy of the Federal Open Market Committee and the 15 percent tax rate on qualified dividends have encouraaged retirees, especially middle-income retired savers, to reorient their nest eggs away from certificates of deposit, treasuries, and money market funds to dividend-paying stocks and mutual funds. According to the IRS, 43 percent of taxpayers age 65 or older reported qualified dividend income amounting to nearly half of the qualified dividend income reported by all taxpayers. By contrast, 46 percent of taxpayers age 65 or older reported net capital gains amounting to 30.5 percent of the net capital …

Prisoner's Rights And The Separation Of Powers: Comparing Approaches In Ireland, Scotland And England And Wales., Mary Rogan

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The decision of Hogan J in Kinsella v. Governor of Mountjoy Prison [2011] IEHC 235 (hereinafter Kinsella) is an important development in the protection of prisoners’ constitutional rights in Ireland. The decision, which found that a prisoner’s right to have his person protected had been breached by his detention in a padded cell with a cardboard box for use as a toilet in conditions amounting to a form of sensory deprivation, may represent a new direction for prison law jurisprudence. The judgment is also of significance for its analysis of the circumstances in which conditions of detention can give rise …

Almost, But Not Quite, Entirely Unlike Libraries: Academic Law Librarians Enter The World Of Archives, Stacy Etheredge

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No abstract provided.

Technology As A Driver Within Agencies - The Internet Change Everything, Michael Herz

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No abstract provided.

Effectively Curbing The Gst Exemption For Perpetual Trusts, Lawrence W. Waggoner

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In "Effectively Curbing the GST Exemption for Perpetual Trusts," I criticized the Treasury Department’s proposal for dealing with perpetual trusts. My objection is that Treasury’s approach would leave many trusts and much wealth GST-exempt for much longer than Congress originally intended. For perpetual trusts created before enactment, Treasury’s approach would allow them to continue to be unburdened by a durational limit. For perpetual trusts created after the effective date of enactment, Treasury’s approach would still allow them to qualify for the GST exemption, but would have the exemption expire 90 years after the trust was created.

Slicing The Shadow: A Proposal For Updating U.S. International Taxation, Reuven S. Avi-Yonah

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In the article Avi-Yonah proposed that the United States tax multinational corporations using a formulary apportionment system based solely on income derived from sales. The background for the article was drawn principally from Robert Reich’s The Work of Nations (1991), and the analysis was inspired by Stanley I. Langbein’s work on transfer pricing, especially his seminal article "The Unitary Method and the Myth of Arm’s Length," Tax Notes, Feb. 17, 1986, p. 625; see also Louis Kauder, "Intercompany Pricing and Section 482: A Proposal to Shift From Uncontrolled Comparables to Formulary Apportionment Now," Tax Notes, Jan. 25, 1993, p. 485.

From The Thief In The Night To The Guest Who Stayed Too Long: The Evolution Of Burglary In The Shadow Of The Common Law, Helen A. Anderson

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Burglary began evolving from the common law crime almost as soon as Lord Coke defined it in 1641 as breaking and entering a dwelling of another in the night with the intent to commit a crime therein. But sometime between the Model Penal Code in 1962 and today, burglary lost its core actus reus, “entry.” In the majority of jurisdictions, burglary can now be accomplished by simply remaining in a building or vehicle with the intent to commit a crime. Not only does such an offense cover a wide range of situations, but it allows burglary to be attached to …

Vive La Petite Difference: Camp, Obama, And Territoriality Reconsidered, Reuven S. Avi-Yonah

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The recent tax reform proposals by House Ways and Means Committee Chair David Camp, R-Mich., and by President Obama seem to offer starkly contrasting visions of how to reform the taxation of foreign-source income earned by U.S.-based multinational enterprises.1 Both acknowledge the problem, which is that U.S.-based MNEs currently have more than $1 trillion of ‘‘permanently reinvested’’ income offshore, which they cannot bring back to the U.S. without incurring a 35 percent tax penalty. However, they seem to offer radically different solutions: Under the Camp proposal, a participation exemption will enable U.S.-based MNEs to bring back the income without paying …

Review Of Co-Defendant Sentencing Disparities By The Seventh Circuit: Two Divergent Lines Of Cases, Alison Siegler

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No abstract provided.

Binding The Executive (By Law Or By Politics), Aziz Huq

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No abstract provided.

Forum Choice For Terrorism Suspects, Aziz Huq

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What forum should be used to adjudicate the status of persons suspected of involvement in terrorism? Recent clashes between Congress and the president as to whether the status of terrorism suspects should be determined via Article III courts or military commissions have revived the debate about this venue question. The problem is typically framed as a matter of legal doctrine, with statutory and doctrinal rules invoked as dispositive guides for sorting suspects into either civilian or military venues. This Article takes issue with the utility of that framing of the problem. It argues that the forum question can more profitably …

Do Religious Tax Exemptions Entangle In Violation Of The Establishment Clause? The Constitutionality Of The Parsonage Allowance Exclusion And The Religious Exemptions Of The Individual Health Care Mandate And The Fica And Self-Employment Taxes, Edward A. Zelinsky

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In Freedom From Religion Foundation v. Geithner, the Freedom From Religion Foundation (FFRF) argues that Code Section 107 and the income tax exclusion that section grants to “minister[s] of the gospel” for parsonage allowances violate the Establishment Clause of the First Amendment. This case has important implications for a new federal law mandating that individuals maintain “minimum essential” health care coverage for themselves and their dependents. That mandate contains two religious exemptions. One of these exemptions incorporates a pre-existing religious exemption from the federal self-employment tax. These sectarian exemptions raise the same First Amendment issues as does the Code’s exclusion …

Rulemaking As Politics, Thirty Years On, Michael Herz

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No abstract provided.

Purchasers Lacking Privity Overcoming "The Rule" For Express Warranty Claims: Expanding Judicial Application Of Common Law Theories And Liberal Interpretation Of U.C.C. Section 2-318, Gary E. Sullivan, Braxton Thrash

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The doctrine of privity has dogged contract plaintiffs for several hundred years, but it has been even more challenging for the courts. Never being fully satisfied with one take on it, courts have oscillated back and forth from allowing third-party suits to almost entirely prohibiting them. Even when the doctrine was at its strongest, the courts found ways to avoid its often inequitable dictates. The question seemed to be answered for sales contracts upon the promulgation and adoption of U.C.C. section 2-318. Many states, however, considered the provision unsatisfactory, and it was soon replaced by a set of three alternatives …

Women In The Post-Conflict Process: Reviewing The Impact Of Recent Un Actions In Achieving Gender Centrality, Dina Francesca Haynes, Naomi Cahn, Fionnuala Ní Aoláin

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The post-conflict terrain provides multiple opportunities for transformation on many different levels: protecting civilians, providing accountability for human rights violations committed during hostilities, reforming local and national laws, reintegrating soldiers, rehabilitating and providing redress for victims, establishing or re-establishing the rule of law, creating human rights institutions and new governance structures, altering cultural attitudes, improving socioeconomic conditions, and transforming gender roles and women’s status. This Article explores the effort to make gender central in the various legal and political regimes and processes in operation post-conflict, and specifically reviews SCR 1325 and its successor resolutions to assess their real contributions towards …