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Legislating Morality: The Duty To The Tax System Reconsidered, Watson Dec 2003

Legislating Morality: The Duty To The Tax System Reconsidered, Watson

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Four years ago, I presented a paper at a symposium on professionalism jointly sponsored by the University of Kansas Law School and the Kansas Bar Association. That paper espoused the view (contrary to what appears to be the popular view among tax scholars) that tax lawyers owe no special duty to the "tax system" other than to abide by the law and the applicable standards of professional conduct. During the four-year interim since my last visit to Kansas, however, we have witnessed the deleterious effect of the IRS Restructuring and Reform Act of 1998 (RRA '98) on IRS enforcement and …


Understanding Price-Based Antidilution Protection: Five Principles To Apply When Negotiating A Down-Round Financing, Robert P. Bartlett Nov 2003

Understanding Price-Based Antidilution Protection: Five Principles To Apply When Negotiating A Down-Round Financing, Robert P. Bartlett

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As most venture capital investors are aware, the economic downturn of the past two years—and the concomitant decrease in private company valuations—has created an opportunity for significant returns on new venture investments seldom seen since the early 1990s. Yet while the investment opportunities of the current economic environment may have attractive financial valuations, they frequently come with the added cost of significant transactional complexity. In particular, the issuance of securities by a private company at a price that is below the price previously paid by the company's investors (typically referred to as a “down-round” financing) may trigger one or more …


Daubert & Danger: The "Fit" Of Expert Predictions In Civil Commitments, Alex Scherr Nov 2003

Daubert & Danger: The "Fit" Of Expert Predictions In Civil Commitments, Alex Scherr

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The opinions of experts in prediction in civil commitment hearings should help the courts, but over thirty years of commentary, judicial opinion, and scientific review argue that predictions of danger lack scientific rigor. The United States Supreme Court has commented regularly on the uncertainty of predictive science. The American Psychiatric Association has argued to the Court that "[t]he professional literature uniformly establishes that such predictions are fundamentally of very low reliability." Scientific studies indicate that some predictions do little better than chance or lay speculation, and even the best predictions leave substantial room for error about individual cases. The sharpest …


I Am Glad I Got To Know Him, David Shipley Oct 2003

I Am Glad I Got To Know Him, David Shipley

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This article is part of a number of articles in tribute to L. Ray Patterson, which appear in 11 J. Intel Prop i (2003).


Race-Conscious Affirmative Action By Tax Exempt 501(C)(3) Corporations After Grutter And Gratz, David A. Brennen Oct 2003

Race-Conscious Affirmative Action By Tax Exempt 501(C)(3) Corporations After Grutter And Gratz, David A. Brennen

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Part I of this Article examines how the Equal Protection Clause limits the government's ability to engage in race-based affirmative action. Part I focuses on how constitutional law analysis has evolved in light of the Supreme Court's recent decisions in Grutter v. Bollinger and Gratz v. Bollinger. Part II provides a brief description of tax law's public policy limitation. This part shows how the IRS, though not required to do so, has generally followed Equal Protection Clause jurisprudence when applying the public policy limitation to race-based activity by private tax exempt 501(c)(3) institutions. Part III discusses how the Supreme …


The (Un)Favorable Judgment Of History: Deportation Hearings, The Palmer Raids, And The Meaning Of History, Harlan G. Cohen Oct 2003

The (Un)Favorable Judgment Of History: Deportation Hearings, The Palmer Raids, And The Meaning Of History, Harlan G. Cohen

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As Americans respond to the events of September 11, 2001, they are being forced to contemplate their place in American history-past, present, and future. This has become particularly stark in the fight over secret deportation hearings. Following September 11, Attorney General John Ashcroft announced that the deportation hearings of "special interest" aliens would be closed to the public. Applying Richmond Newspapers's two-pronged logic-and-experience test, the Third and Sixth Circuits subsequently split over the constitutionality of the blanket closure. At the heart of their disagreement was the scarce history of deportation hearings and whether such hearings had been closed in the …


Bankruptcy And Recovery Of Tort Damages, George Kuney Oct 2003

Bankruptcy And Recovery Of Tort Damages, George Kuney

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No abstract provided.


Materiality Guidance In The Context Of Insider Trading: A Call To Action, Joan M. Heminway Oct 2003

Materiality Guidance In The Context Of Insider Trading: A Call To Action, Joan M. Heminway

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This article reflects upon certain negative effects associated with the ambiguity of the current legal standard for materiality in the insider trading context and suggests and demonstrates an approach to mitigating these negative effects. Specifically, after describing and illustrating the concept of materiality and its application in the insider trading context, this article identifies and assesses applicable regulatory policies, showing that these policies do not dictate an imprecise definition of materiality. Next, the article explains certain negative impacts on stockholder value emanating from the lack of predictability and certainty in interpreting and applying the existing materiality standard, including negative impacts …


Evaluating The Risks Of Market Swaps, Maurice Stucke Oct 2003

Evaluating The Risks Of Market Swaps, Maurice Stucke

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An asset swap between two competitors can be (i) per se illegal under Section 1 of the Sherman Act or (ii) a potentially legitimate sale of assets under Section 7 of the Clayton Act. The case law and antitrust commentary vary as to which standard should be applied, and the impication can be significant for the business entities contemplating the deal. This article outlines five factors to assist in evaluating the asset swap's legality under the federal antitrust laws, and the critical determination of which standard to apply to a potentially high risk transaction.


"Stop Me Before I Vote For This Judge Again": Judicial Conduct Organizations, Judicial Accountability, And The Disciplining Of Elected Judges, Alex B. Long Oct 2003

"Stop Me Before I Vote For This Judge Again": Judicial Conduct Organizations, Judicial Accountability, And The Disciplining Of Elected Judges, Alex B. Long

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No abstract provided.


Nanotechnology And Regulatory Policy: Three Futures, Glenn Harlan Reynolds Oct 2003

Nanotechnology And Regulatory Policy: Three Futures, Glenn Harlan Reynolds

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This Article outlines the basic characteristics of nanotechnology as it is currently understood and will briefly describe some of the technical - and social - consequences likely to arise as nanotechnology matures. Next, it examines three potential approaches for regulating nanotechnology and the likely consequences of each. The Article concludes with suggestions for further study, as well as a list of "dos" and "don'ts" for regulating nanotechnology.


The Ada's Reasonable Accommodation Requirement And Innocent Third Parties, Alex B. Long Oct 2003

The Ada's Reasonable Accommodation Requirement And Innocent Third Parties, Alex B. Long

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No abstract provided.


Resigning As Dean: Stepping Down Or Stepping Up?, David E. Shipley Oct 2003

Resigning As Dean: Stepping Down Or Stepping Up?, David E. Shipley

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I am sure that I will enjoy being a regular law professor again, but there are some aspects of being Dean that I will miss. There are also some parts of the job I am happy to leave to my successor. Let me start with the things I am happy are no longer my responsibility.


Jurisdiction To Tax Income And Consumption In The New Economy: A Theoretical And Comparative Perspective, Walter Hellerstein Sep 2003

Jurisdiction To Tax Income And Consumption In The New Economy: A Theoretical And Comparative Perspective, Walter Hellerstein

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The collection of rules that falls under the rubric of "jurisdiction to tax" has aptly been described as "a body of law in search of a theory." Although this Article lays no claim to advancing such a theory, it does seek to provide a broad theoretical perspective on jurisdiction-to-tax issues raised by income and consumption taxation in the new economy. It is designed to suggest ways of thinking about the fundamental questions involved, questions that are often obscured by a preoccupation with the application of specific jurisdiction-to-tax rules to individualized fact patterns in particularized contexts. In short, this Article is …


The American Challenge To International Law: A Tentative Framework For Debate, Harlan G. Cohen Jul 2003

The American Challenge To International Law: A Tentative Framework For Debate, Harlan G. Cohen

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The United States often appears hypocritical in its commitment to International Law. It supports Nuremberg, Yugoslavia, and Rwandan tribunals, but opposes the International Criminal Court. It supports the creation of the United Nations, but seeks unilateral action in Iraq. This Essay explores these seeming contradictions in American stances toward international law. It argues that while such apparent hypocrisy might be explained by mere pragmatism, ideas prevalent in American foreign policy history seem to point in a more dangerous direction, that such divergent actions may actually be informed by a coherent, specifically American conception of international law. In particular, this Essay …


An Institutional Analysis Of Lawyer Regulation: Who Should Control Lawyer Regulation - Courts, Legislatures, Or The Market, Benjamin H. Barton Jul 2003

An Institutional Analysis Of Lawyer Regulation: Who Should Control Lawyer Regulation - Courts, Legislatures, Or The Market, Benjamin H. Barton

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No abstract provided.


Random Walks, Non-Cooperation Games, And The Complex Mathematics Of Patent Pricing, F. Russell Denton, Paul J. Heald Jul 2003

Random Walks, Non-Cooperation Games, And The Complex Mathematics Of Patent Pricing, F. Russell Denton, Paul J. Heald

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Current patent valuation methods have been described charitably as “inappropriate,” “crude,” “inherently unreliable,” and a “guesstimate.” This article provides a more rational and systematic tool than any we have found in the existing literature or relevant case law. We believe our approach to patent valuation will be useful in improving investment decisions, in facilitating licensing negotiations, and in reducing error costs in litigation. An improved valuation metric also promises to make patents easier to take as collateral and to reduce the amount of “Blue Sky” in mergers and acquisitions involving high tech corporations. To the extent that valuation problems have …


Federal Taxation (2002 Eleventh Circuit Survey), David A. Brennen Jul 2003

Federal Taxation (2002 Eleventh Circuit Survey), David A. Brennen

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During 2002 federal courts in the United States decided nineteen cases that directly impact federal tax law in the Eleventh Circuit. These cases involve a variety of tax law matters including Federal Insurance Contributions Act ("FICA") payroll tax, estate and gift tax, IRS authority to levy and assess tax, and discharges in bankruptcy. Other tax-related matters addressed by courts in 2002 that impact tax law in the Eleventh Circuit include inventory recapture in an S-corporation conversion, attorney fees for the prevailing party in a tax dispute, and injunctions against tax preparers. By far the most important tax case decided in …


Planning For Conflicts Of Interest In Land Use Decisionmaking: The Use Of Alternate Members Of Planning And Zoning Boards, Patricia E. Salkin Apr 2003

Planning For Conflicts Of Interest In Land Use Decisionmaking: The Use Of Alternate Members Of Planning And Zoning Boards, Patricia E. Salkin

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No abstract provided.


Misreading A Canonical Work: An Analysis Of Mansfield's 1994 Study, Paul J. Heald Apr 2003

Misreading A Canonical Work: An Analysis Of Mansfield's 1994 Study, Paul J. Heald

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It would be hard to overestimate the influence of Edwin Mansfield's 1994 empirical study for the International Finance Corporation (an arm of the World Bank) of American business executives' attitudes toward low levels of intellectual property protection in developing nations. His paper is ubiquitously cited for the proposition that if developing countries raise their level of intellectual property protection (especially patents), they will attract foreign investment and technology transfer. In the spirit of the honoree of this symposium, I take a skeptical new look at a canonical work and conclude that the developing world should be very suspicious of the …


Buying Assets In Tennessee: An Annotated Model Tennessee Asset Purchase Agreement, Joan M. Heminway, Angela Humphreys Hamilton Apr 2003

Buying Assets In Tennessee: An Annotated Model Tennessee Asset Purchase Agreement, Joan M. Heminway, Angela Humphreys Hamilton

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The coauthors have constructed a model asset purchase agreement, annotated with footnotes on substantive law and legal drafting issues. This model is intended to be used as a research piece, teaching tool, and practitioner resource. This agreement is part of a series of acquisition agreements and related ancillary contracts and instruments published by Transactions: Tennessee Journal of Business Law beginning in 2003.


Save Martha Stewart? Observations About Equal Justice In U.S. Insider Trading Regulation, Joan M. Heminway Apr 2003

Save Martha Stewart? Observations About Equal Justice In U.S. Insider Trading Regulation, Joan M. Heminway

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Martha Stewart is the subject of a civil enforcement action alleging violations of U.S. securities laws and regulations governing insider trading. The facts, as we now know them, suggest that the considerable governmental resources spent in pursuit of Martha Stewart (which are out of proportion to the apparent financial magnitude of any illegal trading activity) result from an express decision to single her out for potential criminal prosecution or civil enforcement based on some personal characteristic or characteristics. After describing the basic structure of insider trading regulation in the United States, this paper identifies potential structural sources of selective enforcement …


Legal, Political, And Ethical Hurdles To Applying International Human Rights Law In The State Courts Of The United States (And Arguments For Scaling Them), Penny White Apr 2003

Legal, Political, And Ethical Hurdles To Applying International Human Rights Law In The State Courts Of The United States (And Arguments For Scaling Them), Penny White

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No abstract provided.


Why Rite Aid Is Wrong, Don Leatherman Apr 2003

Why Rite Aid Is Wrong, Don Leatherman

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No abstract provided.


A Response And Retort, Penny White Apr 2003

A Response And Retort, Penny White

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No abstract provided.


Race And The Georgia Courts: Implications Of The Georgia Public Trust And Confidence Survey For Batson V. Kentucky And Its Progeny, George W. Dougherty, Randy Beck, Mark D. Bradbury Apr 2003

Race And The Georgia Courts: Implications Of The Georgia Public Trust And Confidence Survey For Batson V. Kentucky And Its Progeny, George W. Dougherty, Randy Beck, Mark D. Bradbury

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Put simply, there is a perception among many Georgians that the court system treats minorities worse than whites. This Essay considers implications of the Georgia findings for a line of United States Supreme Court decisions designed to prevent racial discrimination by trial lawyers in the selection of trial juries.


What's Wrong With Eldred? An Essay On Copyright Jurisprudence, L. Ray Patterson Apr 2003

What's Wrong With Eldred? An Essay On Copyright Jurisprudence, L. Ray Patterson

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With few exceptions, the U.S. Supreme Court has rendered wise copyright decisions consistent with the Copyright Clause. Unfortunately, Eldred v. Ashcroft adds to the exceptions. The difference is that the former are positive law, and the latter natural law, decisions.


Telling Miller's Tale, Glenn Harlan Reynolds Apr 2003

Telling Miller's Tale, Glenn Harlan Reynolds

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The case of United States v. Miller, 307 U.S. 174 (1939), is often cited in gun-control arguments and arguments over the meaning of the Second Amendment. In this Article, we take a close look at Miller, and the arguments made before the Supreme Court. When the decision is read closely and the arguments available (and not available) to the Court are taken into account, the decision is best understood as leaving open the opportunity for courts to adopt the Standard Model reading of the Second Amendment. What Miller plainly does not do is deny that an individual's right to keep …


Rescuing The Confrontation Clause, Penny White Apr 2003

Rescuing The Confrontation Clause, Penny White

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No abstract provided.


Racial Discrimination In Jury Selection: Professional Misconduct, Not Legitimate Advocacy, Lonnie T. Brown, Jr. Apr 2003

Racial Discrimination In Jury Selection: Professional Misconduct, Not Legitimate Advocacy, Lonnie T. Brown, Jr.

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This Article examines the paradox between the adversary and disciplinary systems' outward condemnation of discrimination in jury selection and their apparent simultaneous inward acceptance of such conduct as legitimate advocacy.