Law Commons^™

Corpus Linguistics As A Tool In Legal Interpretation, Lawrence Solan, Tammy Gales

Faculty Scholarship

No abstract provided.

Two Cheers For The Foreign Tax Credit, Even In The Beps Era, J. Clifton Fleming Jr., Robert J. Peroni, Stephen E. Shay

Faculty Scholarship

Reform of the U.S. international income taxation system has been a hotly debated topic for many years. The principal competing alternatives are a territorial or exemption system and a worldwide system. For reasons summarized in this article, we favor worldwide taxation if it is real worldwide taxation – i.e., a non-deferred U.S. tax is imposed on all foreign income of U.S. residents at the time the income in earned. This approach is not acceptable, however, unless the resulting double taxation is alleviated. The longstanding U.S. approach for handling the international double taxation problem is a foreign tax credit limited to …

The Hostile Poison Pill, A. Christine Hurt

Faculty Scholarship

No abstract provided.

R&D Tax Incentives--Growth Panacea Or Budget Trojan Horse?, Stephen E. Shay, J. Clifton Fleming Jr., Robert J. Peroni

Faculty Scholarship

No abstract provided.

Et Tu, Android?: Regulating Dangerous And Dishonest Robots, Woodrow Hartzog

Faculty Scholarship

Consumer robots like personal digital assistants, automated cars, robot companions, chore-bots, and personal drones raise common consumer protection issues, such as fraud, privacy, data security, and risks to health, physical safety, and finances. They also raise new consumer protection issues, or at least call into question how existing consumer protection regimes might be applied to such emerging technologies. Yet it is unclear which legal regimes should govern these robots and what consumer protection rules for robots should look like.

This paper argues that the FTC's grant of authority and existing jurisprudence are well-suited for protecting consumers who buy and interact …

Designing And Improving A System Of Proactive Management-Based Regulation To Help Lawyers And Protect The Public, Susan Saab Fortney

Faculty Scholarship

Increasingly, lawyers and decision-makers are recognizing the limitations and consequences of current approaches to attorney regulation. Inspired by developments in other countries, regulators in the United States and Canada have started the process of exploring innovative approaches, including proactive management-based regulation. The term, proactive-management regulation (PMBR), was first used by Professor Ted Schneyer to refer to a regulatory approach designed to promote ethical law practice by assisting lawyers with practice management.

The seed for PMBR was first planted in the Australian state of New South Wales (NSW). It grew out of the legislation that allowed limited liability and non-lawyer ownership …

Conviction By Prior Impeachment, Anna Roberts

Faculty Scholarship

No abstract provided.

Minding Ps And Qs: The Political And Policy Questions Framing Health Care Spending, William M. Sage

Faculty Scholarship

Tracing the evolution of political conversations about health care spending and their relationship to the formation of policy is a valuable exercise. Health care spending is about science and ethics, markets and government, freedom and community. By the late 1980s the unique upward trajectory of post-Medicare U.S. health care spending had been established, recessions and tax cuts were eroding federal and state budgets, and efforts to harness market forces to serve policy goals were accelerating. From the initial writings on “managed competition,” through the failed Clinton health reform effort in the early 1990s, to the passage of the Affordable Care …

Defining Hate Speech, Andrew Sellars

Faculty Scholarship

There is no shortage of opinions about what should be done about hate speech, but if there is one point of agreement, it is that the topic is ripe for rigorous study. But just what is hate speech, and how will we know it when we see it online? For all of the extensive literature about the causes, harms, and responses to hate speech, few scholars have endeavored to systematically define the term. Where other areas of content analysis have developed rich methodologies to account for influences like context or bias, the present scholarship around hate speech rarely extends beyond …

Legislative Exactions And Progressive Property, Timothy M. Mulvaney

Faculty Scholarship

Exactions — a term used to describe certain conditions that are attached to land-use permits issued at the government’s discretion — ostensibly oblige property owners to internalize the costs of the expected infrastructural, environmental, and social harms resulting from development. This Article explores how proponents of progressive conceptions of property might respond to the open question of whether legislative exactions should be subject to the same level of judicial scrutiny to which administrative exactions are subject in constitutional takings cases. It identifies several first-order reasons to support the idea of immunizing legislative exactions from heightened takings scrutiny. However, it suggests …

Regulating Off-Label Promotion — A Critical Test, Christopher Robertson, Aaron S. Kesselheim

Faculty Scholarship

In 2012, the U.S. Court of Appeals for the Second Circuit handed down a landmark decision in the case of pharmaceutical sales representative Alfred Caronia. The Food and Drug Administration (FDA) had approved sodium oxybate (Xyrem) for treating narcolepsy, but Caronia promoted it for a wide range of nonapproved (off-label) indications, including insomnia, Parkinson’s disease, and fibromyalgia. Off-label use is common, especially in specialties such as oncology, in which it may even be considered the standard of care. However, surveys have revealed that supporting evidence is lacking for a majority of off-label uses of medical products.1 The uses Caronia …

Inefficient Efficiency: Crying Over Spilled Water, Vanessa Casado-Pérez

Faculty Scholarship

As the drought in Western states worsens, the agricultural sector is being criticized for failing to adopt technical responses, such as shifting to less water-demanding crops and state-of-the-art irrigation systems, in a timely manner. However, these responses can have the reverse effect: they can increase water consumption. Technological responses alone are insufficient to reduce water consumption if unaccompanied by changes in how the law defines and allocates water rights. This paper proposes a redefinition of water rights to ensure that changes in crops or irrigation techniques are socially efficient.

In the West, which uses the doctrine of prior appropriation to …

The Privacy Policymaking Of State Attorneys General, Danielle K. Citron

Faculty Scholarship

Accounts of privacy law have focused on legislation, federal agencies, and the self-regulation of privacy professionals. Crucial agents of regulatory change, however, have been ignored: the state attorneys general. This article is the first in-depth study of the privacy norm entrepreneurship of state attorneys general. Because so little has been written about this phenomenon, I engaged with primary sources — first interviewing state attorneys general and current and former career staff, and then examining documentary evidence received through FOIA requests submitted to AG offices around the country.

Much as Justice Louis Brandeis imagined states as laboratories of the law, offices …

Juvenile Competency And Pretrial Due Process: A Call For Greater Protections In Massachusetts For Juveniles Residing In Procedural Purgatory, Wendy J. Kaplan, Mark Rapisarda

Faculty Scholarship

While juvenile courts continue to balance and reevaluate the dual goals of community safety and rehabilitation of youth, juveniles who are not competent to stand trial have been left without sufficient procedural protections. This paper examines Massachusetts’ approach to juvenile competency, due process, and pretrial procedure, within a national context. The inadequacies of the Massachusetts juvenile competency laws are not unique. Currently there are nineteen states that either entirely lack juvenile-specific competency legislation or merely incorporate inapposite adult criminal statutes and standards into the juvenile context—making it difficult or impossible for those juvenile courts to dismiss or divert a delinquency …

“Government By Injunction,” Legal Elites, And The Making Of The Modern Federal Courts, Kristin Collins

Faculty Scholarship

The tendency of legal discourse to obscure the processes by which social and political forces shape the law’s development is well known, but the field of federal courts in American constitutional law may provide a particularly clear example of this phenomenon. According to conventional accounts, Congress’s authority to regulate the lower federal courts’ “jurisdiction”—generally understood to include their power to issue injunctions— has been a durable feature of American constitutional law since the founding. By contrast, the story I tell in this essay is one of change. During the nineteenth century and into the twentieth, many jurists considered the federal …

Gcc Vat: The Intra-Gulf Trade Problem, Richard Thompson Ainsworth, Musaad Alwohaibi

Faculty Scholarship

It seems reasonably clear that by January 1, 2018 events will be set in motion for the adoption of a community-wide 5% value added tax (VAT) in the six Member States of the Gulf Cooperation Council (GCC).

The GCC’s Framework VAT document is expected to be published by the end of October 2016. One of the clearest, consistently placed observations is that the Arabian VATs will be destination-based and modeled on a European credit-invoice design. Intra-Gulf business-to-business (B2B) transactions will be effectively zero-rated by the supplier, and the buyer’s VAT will be directed to the destination jurisdiction. It is not …

The Logic Of Contract In The World Of Investment Treaties, Julian Arato

Faculty Scholarship

No abstract provided.

Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin

Faculty Scholarship

After seventy years of trying, the Supreme Court has yet to agree on whether the Rules Enabling Act articulates a one or two part standard for determining the validity of a Federal Rule. Is it enough that a Federal Rule regulates “practice and procedure,” or must it also not “abridge substantive rights”? The Enabling Act seems to require both, but the Court is not so sure, and the costs of its uncertainty are real. Among other things, litigants must guess whether the decision to apply a Federal Rule in a given case will depend upon predictable ritual, judicial power grab, …

Eugenics, Jim Crow, And Baltimore's Best, Garrett Power

Faculty Scholarship

No abstract provided.

Restoring Hope For Heirs Property Owners: The Uniform Partition Of Heirs Property Act, Thomas W. Mitchell

Faculty Scholarship

For well over 125 years, many Americans have lost their tenancy-in-common property involuntarily in various legal proceedings. For example, courts throughout this country have often resolved partition actions, a legal proceeding in which a tenant in common seeks to exit a tenancy in common, by ordering a forced, partition sale of the property even when these courts could have ordered a remedy that would have preserved the property rights of the tenants in common. Though partition sales have negatively impacted a broad cross section of people in this country, the sales have particularly impacted poor and disadvantaged African-Americans, Hispanics, white …

Listening To The Laws: Finding The Legislative History Of Recent Kentucky Statutes Online, Kurt Metzmeier

Faculty Scholarship

While it is not possible sort of legislative history of a Kentucky statute that one traditionally does for a federal law because the Kentucky legislature does not publish full transcripts of legislative debates or the reports of committee hearings (the basic materials of a federal legislative history), this article shows how to use the state legislative website and videos taken and retained by the KET (the state public education channel) to do as well a job.

License Plate Reader Technology: Transportation Uses And Privacy Risks, Johanna Zmud, Jason Wagner, Maarit Moran, James P. George

Faculty Scholarship

NCHRP Report/Task 136: License Plate Reader Technology: Transportation Uses and Privacy Risks, presents a review of transportation uses of license plate reader (LPR) technology, relevant regulatory and judicial cases, and current trends in public opinion. Detailed case studies were completed for five transportation uses to assess current context, benefits, and challenges. Guidance on strategies and practices is provided to guide transportation agencies in balancing between beneficial uses of LPR data and the protection of individual privacy. These best practices should be understood as the minimum aspirations for an agency’s policies, procedures, and controls. Due to the unique requirements of individual …

(In)Valid Patents, Paul Gugliuzza

Faculty Scholarship

Increasingly, accused infringers challenge a patent’s validity in two different forums: in litigation in federal court and in post-issuance review at the Patent and Trademark Office (PTO). These parallel proceedings have produced conflicting and controversial results. For example, in one recent case, a district court rejected a challenge to a patent’s validity and awarded millions of dollars in damages for infringement. The Federal Circuit initially affirmed those rulings, ending the litigation over the patent’s validity. In a subsequent appeal about royalties owed by the infringer, however, the Federal Circuit vacated the entire judgment — including the validity ruling and damages …

The Role Of Design Choice In Intellectual Property And Antitrust Law, Stacey Dogan

Faculty Scholarship

When is it appropriate for courts to second-guess decisions of private actors in shaping their business models, designing their networks, and configuring the (otherwise non-infringing) products that they offer to their customers? This theme appears periodically but persistently in intellectual property and antitrust, especially in disputes involving networks and technology. In both contexts, courts routinely invoke what I call a “non-interference principle” — the presumption that market forces ordinarily bring the best outcomes for consumers, and that courts and regulators should not meddle in the process. This non-interference principle means, for example, that intermediaries need not design their networks to …

Accounting For Rising Corporate Profits: Intangibles Or Regulatory Rents?, James Bessen

Faculty Scholarship

Since 1980, US corporate valuations have risen relative to assets and operating margins have grown. The possibility of sustained economic rents has raised concerns about economic dynamism and inequality. But rising profits could come from political rents or, instead, from returns to investments in intangibles. Using new data on Federal regulation and data on lobbying, campaign spending, R&D, and organizational capital, this paper finds that both intangibles and political factors account for a substantial part of the increase in profits, but since 2000 political factors are more important. A difference-in-differences analysis finds that major expansions of regulation increase profits significantly.

Information Technology And Learning On-The-Job, James Bessen

Faculty Scholarship

Economists disagree how much technology raises demand for workers with pre-existing skills. But technology might affect wages another way: through skills learned on the job. Using instrumental variables on 9 panels of workers from 1989 to 2013, this paper estimates that workers who use information technology (IT) have wage growth that is about 2% greater than non-IT workers, all else equal, implying substantial learning. This effect persists over time, implying sustained productivity growth from IT. Also, it benefits workers both with and without college degrees. Because many more college-educated workers use IT, college wages grow faster, contributing to economic inequality.

Cnn Money Interviews Serge Martinez, My Chipotle Nightmare, Serge A. Martinez

Faculty Scholarship

Article on low-wage quoting professor Serge Martinez on low-wage workers.

Process Without Procedure: National Security Letters And First Amendment Rights, Hannah Bloch-Wehba

Faculty Scholarship

Each year, the FBI uses tens of thousands of NSLs to obtain “transactional records” related to telephone calls, emails, text messages, online forums, and other communicative activity. NSLs are usually accompanied by nondisclosure orders that prevent recipients from speaking about or acknowledging the requests. Although over 100,000 NSLs have been issued since 2001, there have been fewer than 10 known judicial challenges.

I argue that the absence of procedural safeguards within the NSL authority has created a de facto regime of automatic compliance with the requests, endangering First Amendment rights in the process. NSLs are explicitly directed at uncovering the …

Brief For Professors, Czyzewski V. Jevic Holding Corp. As Amicus Curiae, Laura Spitz

Faculty Scholarship

We urge that the decision of the Circuit Court should be affirmed because Petitioners were not injured or prejudiced by the settlement--they are not worse off than if the settlement had been rejected. Aside from that, the remaining issue is whether the bankruptcy court had discretion to approve the instant settlement even though it did not strictly follow the priority rule. We believe that the courts correctly decided not to apply the absolute priority rule under the circumstances of this case. We urge that the Rule need not be followed by a bankruptcy court in approving a settlement. Alternatively, if …

Blockchain (Distributed Ledger Technology) Solves Vat Fraud, Richard Thompson Ainsworth, Andrew Shact

Faculty Scholarship

At the World Economic Forum more than 800 executive and technology experts were asked when they thought a particular “tipping point” would be reached – when would we see a government collect tax with blockchain? The agreed date was 2023 (on average). A full 73% of the respondents however, expected the tipping point to have been reached by 2025.

This paper argues that the EU VAT will be an early adopter, if not the earliest adopter of blockchain. There are a number of reasons why. Blockchain will bring substantial efficiencies to VAT collection. It will reduce costs, and build critical …