Law Commons^™

In Memoriam: Abner J. Mikva (1926-2016), David A. Strauss

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No abstract provided.

In Memoriam: Abner J. Mikva (1926-2016), Geoffrey R. Stone

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No abstract provided.

Digital Self-Ownership: A Publicity-Rights Framework For Determining Employee Social Media Rights, Susan Park, Patricia S. Abril

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No abstract provided.

The Sec, Administrative Usurpation, And Insider Trading, Adam C. Pritchard

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The history of insider trading law is a tale of administrative usurpation and legislative acquiescence. Congress has never enacted a prohibition against insider trading, much less defined it. Instead, the SEC has led in defining insider trading, albeit without the formality of rulemaking, and subject to varying degrees of oversight by the courts. The reason why lies in the deference that the Supreme Court gave to the SEC in its formative years. The roots of insider trading law are commonly traced to the SEC’s decision in Cady, Roberts & Co. Cady, Roberts was only made possible, however, by the …

Technical Standards And Lawsuits Involving Accommodations For Health Professions Students, Samuel R. Bagenstos

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This article will discuss the legal obligations of medical schools to accommodate applicants and students with disabilities. The article begins by describing the problem of denial of medical education to such students, a problem that results from both discrimination in admissions and denial of accommodations to incumbent students with disabilities. The article then discusses the disability rights legislation that prohibits discrimination against—and requires reasonable accommodation of—qualified medical students with disabilities. It concludes by reviewing a number of lawsuits involving requests for accommodation and how disability rights law was applied in those cases.

The Second Circuit And Social Justice, Matthew Diller, Alexander A. Reinert

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The Second Circuit is renowned for its landmark rulings in fields such as white collar crime and securities law — bread and butter issues growing out of Wall Street’s preeminence in the financial landscape of the nation. At the same time, the Second Circuit has a long tradition of breaking new ground on issues of social justice. Unlike some circuit courts which have reputations in the area of social justice built around one or two fields, such as the Fifth Circuit’s pioneering role in civil rights litigation or the Ninth Circuit’s focus on immigration, there is no one area of …

An Argument Against Civil Marriage, J. David Bleich

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The article argues against the legal recognition of civil marriage, particularly in the context of same-sex marriage as upheld by the Supreme Court in Obergefell v. Hodges. The author contends that legal recognition of same-sex marriage conflates moral approval with legal neutrality, leading to potential conflicts between individual conscience and state mandates. Drawing on Talmudic principles and historical legal precedents, the article advocates for the abolition of civil marriage and proposes an alternative system of designating "close friends" for legal purposes to avoid such conflicts.

An Empirical Study Of Implicit Takings, James E. Krier, Stewart E. Sterk

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Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law “on the ground” – in the state and lower federal courts, who together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2,000 reported decisions over the period 1979 through June 2012, attempts to fill that void.The study establishes that the Supreme Court’s categorical rules govern almost no cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action other …

Not Too Separate Or Unequal: Marriage Penalty Relief After Obergefell, Mitchell L. Engler, Edward D. Stein

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Joint tax returns have generated controversy for many years. Married couples with the same joint income pay the same tax under our current system regardless of the earnings distribution between the spouses. This approach primarily rests on the idea that married couples share resources and operate as a single economic unit. Critics typically challenge this assumption and lament how marriage might significantly change a couple's taxes. Depending on their earnings breakdown, a couple's taxes could be reduced (a marital bonus for uneven-earners) or increased (a marital penalty for even-earners). These possibilities exist because the joint brackets are typically larger-but not …

What Remains "Real" About The Law And Literature Movement?: A Global Appraisal, Richard H. Weisberg

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The article explores the enduring relevance and global expansion of the Law and Literature movement, emphasizing its unique contribution to legal discourse by analyzing how narratives reveal the operation of law, the interpretations of legal authorities, and the identifiable causes of legal errors. It argues that literary jurisprudence provides a distinct methodology for understanding jurisprudence, challenging traditional legal scholarship and offering insights into systemic injustices and pathways to justice.

What’S Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas

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Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random. This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race. Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment. But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment. It also has unintended …

Multinational Firms And Tax Havens, Anna Gumpert, James R. Hines Jr., Monika Schnitzer

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Multinational firms with operations in high-tax countries can benefit the most from reallocating taxable income to tax havens, though this is sufficiently difficult and costly that only 20.4% of German multinational firms have any tax haven affiliates. Among German manufacturing firms, a 1 percentage point higher foreign tax rate is associated with a 2.3% greater likelihood of owning a tax haven affiliate. This is consistent with tax avoidance incentives and contrasts with earlier evidence for U.S. firms. The relationship is less strong for firms in service industries, possibly reflecting the difficulty of reallocating taxable service income.

The New Labor Law, Kate Andrias

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Labor law is failing. Disfigured by courts, attacked by employers, and rendered inapt by a global and fissured economy, many of labor law’s most ardent proponents have abandoned it altogether. And for good reason: the law that governs collective organization and bargaining among workers has little to offer those it purports to protect. Several scholars have suggested ways to breathe new life into the old regime, yet their proposals do not solve the basic problem. Labor law developed for the New Deal does not provide solutions to today’s inequities. But all hope is not lost. From the remnants of the …

An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk

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Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions ovcr the period 1979 through 2012, attempts to fill that void. This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action …

American Bar Association Resolution 112: Championing Public Access To The Law., Nina A. Mendelson

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In August 2016, the American Bar Association House of Delegates reaffirmed the fundamental democratic principle of public access to the law. ABA Resolution 112 calls on Congress to enact legislation ensuring a basic level of public access, without charge, to all regulatory law. Such legislation would address serious current obstacles to the public’s ability to see the law.

Human Development As An Intellectual Property Metric, J. Janewa Osei-Tutu

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No abstract provided.

Thoughts On Treasury's White Paper On Eu State Aid, Jeffrey M. Kadet

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The U.S. Department of the Treasury on August 24 issued a White Paper that expresses its concerns about the European Commission’s efforts to apply the European Union’s State aid restrictions to multinational enterprises’ profit-shifting structures. This article comments on two aspects of the white paper that are technically correct, but require a little more explanation for readers to understand their significance. These two aspects are:

First, the article clarifies that the general comments that the White Paper makes about “call[ing] into question the ability of Member States to honor their bilateral tax treaties” might be true, but the specifics of …

The Contours Of Constitutional Approval, Nicholas Stephanopoulos, Mila Versteeg

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Information-Dissemination Law: The Regulation Of How Market-Moving Information Is Revealed, M. Todd Henderson, Kevin S. Haeberle

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Lux In Arcana: Decoding The Right To Be Forgotten In Digital Archives, Patricia S. Abril, Eugenio Pizarro Moreno

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On 13 May 2014, the European Court of Justice ruled that search engines such as Google had a duty to respect EU citizens' right to be forgotten. That is, the search engines-deemed "controllers" of information under the Directive-were obligated in some circumstances to remove or de-list links from search results that pertain to information that infringes on an individual's rights under the Directive. In the fall of 2015, the Spanish Supreme Court found itself obligated to determine the application of the digital right to be forgotten in a different context: This time in a digital newspaper archive. However, since …

From Integrationism To Equal Protection: Tenbroek And The Next 25 Years Of Disability Rights, Samuel R. Bagenstos

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If there is one person who we can say is most responsible for the legal theory of the disability rights movement, that person is Jacobus tenBroek. Professor tenBroek was an influential scholar of disability law, whose writings in the 1960s laid the groundwork for the disability rights laws we have today. He was also an influential disability rights activist. He was one of the founders and the president for more than two decades of the National Federation of the Blind, one of the first-and for many years undisputedly the most effective-of the organizations made up of people with disabilities that …

Jurisdiction And Resentencing: How Prosecutorial Waiver Can Offer Remedies Congress Has Denied, Leah Litman, Luke C. Beasley

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This Essay is about what prosecutors can do to ensure that prisoners with meritorious legal claims have a remedy. The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes draconian conditions on when prisoners may file successive petitions for post-conviction review (that is, more than one petition for post-conviction review). AEDPA’s restrictions on post-conviction review are so severe that they routinely prevent prisoners with meritorious claims from vindicating those claims.

Effects Of Australia's Maal And Dpt On Internet-Based Businesses, Antony Ting, Tommaso Faccio, Jeffrey M. Kadet

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Australia has received considerable attention as a result of its unilateral actions to discourage multinational profit shifting. Those actions include the 2015 enactment of the Multinational Anti-Avoidance Law and the Australian Treasury’s May 2016 proposal for a diverted profits tax. This article considers how those actions might affect non-Australian multinational entities that conduct internet platform services for, and earn revenues from, Australian customers if those MNEs take no action. It also reviews structural alternatives.

As will be seen from the example set out in the article, the Australian royalty withholding tax is a major portion of the possible tax increases …

Profit-Shifting Structures: Making Ethical Judgments Objectively, Part 2, Jeffrey M. Kadet, David Koontz

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MNCs and their advisors have seemingly taken ethics out of the mix when considering the profit-shifting tax structures they have so prolifically and enthusiastically implemented over the past several decades. There may be a variety of reasons for this. First, U.S. tax law is a self-assessment system, meaning that in most cases taxpayers compute and pay tax without advance approval of their tax positions from the IRS. No third party technical test or propriety standard has to be passed on the front end for any tax strategy or structure. Second, direct personal benefits accrue to management and advisors from implementing …

Personalizing Negligence Law, Omri Ben-Shahar, Ariel Porat

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No abstract provided.

Balance-Of-Powers Arguments, The Structural Constitution, And The Problem Of Executive "Underenforcement", Eric A. Posner

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Rational Basis Review And Fda Regulation: Why The Two Do Not Mix, Richard A. Epstein

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Developmental Jurisprudence, Emily Buss

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How To Study Constitution-Making: Hirschl, Elster, And The Seventh Inning Problem, Tom Ginsburg

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The Double-Edged Sword Of State Constitutional Law, Richard A. Epstein

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No abstract provided.