Law Commons^™

Beps - A Primer On Where It Came From And Where It’S Going, Jeffrey M. Kadet

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Governments throughout the world have been losing many billions of dollars of tax revenues from “legal” tax avoidance conducted by many multinational groups (MNEs) through aggressive structuring of operations and transactions that often lack economic reality so as to earn profits that are subjected to zero or low-taxation. The success of this “legal” tax avoidance motivated the G-20 and the OECD to initiate the two-year Base Erosion and Profit Shifting (BEPS) project, which took place from 2013 to 2015.

This discussion of the BEPS project is intended to give the reader an understanding of the project’s origin, its objectives, and …

Reply To Five Critics Of Why Tolerate Religion?, Brian Leiter

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Charging On The Margin, Paul Crane

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Institutional Flip-Flops, Eric A. Posner, Cass R. Sunstein

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The Distributive Deficit In Law And Economics, Richard H. Mcadams, Lee Anne Fennell

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Innovation And Inequality: The Separability Thesis, Richard A. Epstein

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Class Action Myopia, Maureen Carroll

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Over the past two decades, courts and commentators have often treated the class action as though it were a monolith, limiting their analysis to the particular class form that joins together a large number of claims for monetary relief This Article argues that the myopic focus on the aggregated-damages class action has led to undertheorization of the other class-action subtypes, which serve far different purposes and have far different effects, and has allowed the ongoing backlash against the aggregated-damages class action to affect the other subtypes in an undifferentiated manner. The failure to confine this backlash to its intended target …

International Human Rights; International Human Rights Law, James W. Nickel

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Does Meaning Matter?, David A. Strauss

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A Response to Professor Fallon

Wellness International Network V. Sharif: Minimizing The Jurisdictional Impact Of Stern Through Consent Of Bankruptcy Litigants, Ishaq Kundawala

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Without conducting an official poll, it can safely be said that a majority of lawyers, judges, and scholars agree the nature and scope of bankruptcy jurisdiction is quite confusing and at times uncertain. There has always been—and perhaps always will be—a tug-of-war between the legislative and judicial branches of government over the proper scope of bankruptcy jurisdiction, with one side expanding the reach of bankruptcy jurisdiction legislatively and the other side limiting that reach judicially. This poses a classic separation of powers struggle between the two branches, which has certainly played out in recent bankruptcy jurisprudence.

When Congress created the …

Monroe Freedman: Prophet Of Biblical Justice, Timothy W. Floyd

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Professor Monroe Freedman’s distinctive view of legal ethics was individual autonomy. Professor Freedman’s provocative Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, and his even more provocative answers, have drawn criticism as being too focused on individual autonomy.

Certainly, Monroe had a profound respect for individual dignity and autonomy, and he readily asserted that respect for individual autonomy was central to his view of legal ethics. In what follows, however, I will suggest that his emphasis on dignity and autonomy were derived from an even deeper commitment to justice. More particularly, Monroe Freedman had a passion for …

Challenges And Opportunities Of The Expiring Columbia River Treaty, Barbara Cosens

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Women On State Boards And Commissions: Is Idaho Where It Wants To Be?, Brenda Bauges

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The Legislative History Of The Mccarran Amendment: An Effort To Determine Whether Congress Intended For State Court Jurisdiction To Extend To Indian Reserved Water Rights, Dylan R. Hedden-Nicely

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The year 1976 marked a sea change in federal policy regarding the treatment of American Indian tribes and their water rights. In that year, the Supreme Court of the United States was called upon to determine the scope of the McCarran Amendment, a rider on a federal appropriations bill that waived the sovereign immunity of the United States in state court general stream adjudications "where it appears that the United States is the owner or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise." The Supreme Court, in what has …

Medicaid Planning In Idaho, John A. Miller

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Once Upon A Transaction: Narrative Techniques And Drafting, Karen J. Sneddon

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A granddaughter joins the family business as a partner. An entrepreneur licenses his newest product. Two parties decide to settle a dispute. A charitable idea materializes as a private foundation. A parent's belief in the power of education is perpetuated by a trust agreement. Each of these events forms a narrative. A transaction is more than the scratch of pens across signature pages or the click of keys to email an executed document. A transaction is itself a story. These stories, made with provisions and clauses, result in the formation of contracts, agreements, and wills. Conceptualizing transactions as narratives benefits …

Balancing Judicial Independence And Accountability In A Transitional State: The Case Of Thailand, David Pimentel

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Balancing judicial independence against judicial accountability is a classic problem, but the debate has often taken place without reference to specific legal cultures and traditions, and there is compelling reason to believe that the “right” balance may be different in different societies. Thailand is in transition, so the models of established Western democracies may be ill-suited to the problems and issues of the Thai judiciary. Moreover, independence and accountability are not ends in themselves, but means to the same end: that of fair, impartial, and effective justice. Independence can help, primarily by bolstering the “judicial courage” exercised by judges called …

A Nearly Perfect System For Convicting The Innocent, Albert W. Alschuler

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The Sin Of Turning Away From Reality: An Interview With Father Krzysztof Charamsa, David Paternotte, Mary Anne Case, Sarah Bracke

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Innovation And Inequality: Conservative And Libertarian Perspectives, Elizabeth Kregor

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Presidential War Powers As An Interactive Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith

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There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allow the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be distinct legal issues. This Article, by contrast, considers these two bodies of law together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels between the structure …

Obama’S Aumf Legacy, Curtis A. Bradley, Jack L. Goldsmith

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In the fifteen years since the Authorization for Use of Military Force (AUMF) was enacted on September 18,2001, the Taliban has been removed from power but not eliminated; Osama Bin Laden has been killed and the senior leaders of Al Qaeda as of 9/11 have been captured,killed, or driven underground, although Al Qaeda remains a threat; numerous Al Qaeda affiliates have sprung up around the globe, most notably in Iraq, Yemen, Syria, and Somalia; and most ominously, the Islamic State has arisen from the ashes of Al Qaeda in Iraq to become what the Director of National Intelligence has described …

Because And Effect: Another Take On Inclusive Communities, Lee Anne Fennell

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The Columbia River Treaty: An Opportunity For Modernization Of Basin Governance, Barbara Cosens

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Protecting The Free-Range Kid: Recalibrating Parents' Rights And The Best Interest Of The Child, David Pimentel

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Entity Exit: Rights, Remedies, And Bounded Rationality, Mark Anderson

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Water Law Reform In The Face Of Climate Change: Learning From Drought In Australia And The Western United States, Barbara Cosens

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Western societies have developed three approaches to governance of common pool resources such as water: 1) The division of the resource into private property; (2) government regulation; and 3) local self-organization. This article asserts that all three are needed in varying combinations to rise to the challenge presented by the impact of climate change on water supply and demand. Drought presents a preview of potential future climate scenarios and Australia and the western United States are both responding to its harshness through innovation in water governance. These experiments present an opportunity to compare the approaches of Australia and the western …

Eighth Amendment's Lost Jurors: Death Qualification And Evolving Standards Of Decency, Aliza Plener Cover

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The Supreme Court’s inquiry into the constitutionality of the death penalty has overlooked a critical “objective indicator” of society’s “evolving standards of decency”: the rate at which citizens are excluded from capital jury service under Witherspoon v. Illinois due to their conscientious objections to the death penalty. While the Supreme Court considers the prevalence of death verdicts as a gauge of the nation’s moral climate, it has ignored how the process of death qualification shapes those verdicts. This blind spot biases the Court’s estimation of community norms and distorts its Eighth Amendment analysis.

This Article presents a quantitative study of …

Adaptive Governance Of Water Resources Shared With Indigenous Peoples: The Role Of Law, Barbara Cosens

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Adaptive governance is an emergent phenomenon resulting from the interaction of locally driven collaborative efforts with a hierarchy of governmental regulation and management and is thought to be capable of navigating social-ecological change as society responds to the effects of climate change. The assertion of Native American water rights on highly developed water systems in North America has triggered governance innovations that resemble certain aspects of adaptive governance, and have emerged to accommodate the need for Indigenous water development and restoration of cultural and ecological resources. Similar innovations are observed in the assertion of Indigenous voices in Australia. This presents …

Avoiding Decline: Fostering Resilience And Sustainability In Midsize Cities, Barbara Cosens

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Eighty-five percent of United States citizens live in urban areas. However, research surrounding the resilience and sustainability of complex urban systems focuses largely on coastal megacities (>1 million people). Midsize cities differ from their larger counterparts due to tight urban-rural feedbacks with their immediate natural environments that result from heavy reliance and close management of local ecosystem services. They also may be less path-dependent than larger cities due to shorter average connection length among system components, contributing to higher responsiveness among social, infrastructural, and ecological feedbacks. These distinct midsize city features call for a framework that organizes information and …