Law Commons^™

Press Exceptionalism, Sonja R. West

Scholarly Works

Thanks to advances in mass communication technology, it is now easier and cheaper for all of us to share information with each other. This new ability allows us to act in ways that often seem “press-like.” We might, for example, tweet a warning to our friends about a traffic jam or blog about an upcoming election. Armed with nothing more than a smart phone or a laptop, each of us can share information about matters of public interest to a potentially broad audience in a timely manner — thus engaging in the very activities that were once considered the exclusive …

Dysfunction Junction: Reasonable Cause And Good Faith Reliance On Tax Advisors With Conflicts Of Interest, Michelle M. Kwon

Scholarly Works

Taxpayers who underpay their taxes may be liable for accuracy-related penalties if the underpayment is attributable to negligence or the careless, reckless, or intentional disregard of rules or regulations. Understatements of tax liability resulting from participation in certain types of tax avoidance transactions are also subject to penalties. Accuracy-related penalties may be imposed even with respect to innocent mistakes if the discrepancy between a taxpayer's correct and reported tax liability is sufficiently large.

Taxpayers may, however, avoid accuracy-related penalties by relying on a reasonable cause defense. The reasonable cause defense may be satisfied by relying on professional tax advice even …

Abi Commission Testimony November 7, 2013, George Kuney

Scholarly Works

There are two areas that I believe should be the focus of Chapter 11 reform: reducing reorganization costs in small to middle-market cases and instituting a uniform structure and process for § 363 sales of substantially all the assets of a debtor. Essentially, I think that the plan process in all cases needs to be streamlined and sped up to decrease transactions costs, and the 363 sale process needs to be slowed down to promote more robust disclosure and exposure of the assets in question to the market.

The Forgotten Role Of Consent In Defamation And Employment Reference Cases, Alex B. Long

Scholarly Works

As has been well documented, the fear of defamation suits and related claims leads many employers to refuse to provide meaningful employment references. However, an employer who provides a negative reference concerning an employee enjoys a privilege in an ensuing defamation action if the employee has consented to the release of information concerning the employee’s job performance. Thus, many attorneys now advise prospective employers to have applicants sign consent agreements, permitting the prospective employer to conduct an investigation into the applicant’s work history and releasing from liability anyone who provides information about the employee’s work history. The Restatement (Second) of …

Foreword: The Second Amendment As Ordinary Constitutional Law, Glenn Harlan Reynolds

Scholarly Works

In recent years, the Second Amendment has gone from a subject of scholarly and political debate with no real judicial role, to a clearly established individual right that is being enforced in lower courts. This Essay, the foreword to a forthcoming Tennessee Law Review symposium on the Second Amendment, explores how that happened, and what is likely to come next.

The Beneficent Monopolist, Maurice Stucke, Allen Grunes

Scholarly Works

In examining Comcast's proposed acquisition of Time Warner Cable (TWC), we assess three of the arguments Comcast likely will make to the Department of Justice and FCC. Comcast will likely argue that its acquisition of TWC is unlikely to lessen competition because: (a) the broadband market is becoming more competitive: Google has introduced Google Fiber in a number of markets, and mobile broadband offered by wireless providers like AT&T and Sprint is competitive with fixed broadband; (b) Netflix and traditional media companies have sufficient clout to negotiate with Comcast and the government should not intervene on their behalf; and (c) …

Complicity And Collection: Religious Freedom And Tax, Jennifer Carr

Scholarly Works

This Article focuses on how the Religious Freedom Peace Tax Fund Bill might be improved so that members of Congress enact it. The bill would allow war tax resisters who qualify as pacifists to direct their tax money to a separate fund not to be used for military spending. At present, the IRS is expending time and resources trying to track down tax resisters, which results in loss of revenue for the government. This Article argues that passage of an amended version of the Religious Freedom Peace Tax Fund Bill would eliminate the tension between the IRS and war tax …

Overcoming Barriers To The Protection Of Viable Fetuses, Randy Beck

Scholarly Works

I start this Article from the premise that the Court was correct in Roe v. Wade concerning the significance of fetal viability. I assume for the sake of argument that viability is a momentous point in pregnancy and that “logical and biological justifications” support a compelling state interest in protecting the lives of fetuses that have crossed the viability threshold. The goal of this Article is to highlight factors that individually and in concert significantly hinder legislative attempts to preserve the lives of viable fetuses, and to identify measures that, if permitted by the courts, could facilitate the pursuit of …

The Filibuster And The Framing: Why The Cloture Rule Is Unconstitutional And What To Do About It, Dan T. Coenen

Scholarly Works

The U.S. Senate’s handling of filibusters has changed dramatically in recent decades. As a result, the current sixty-vote requirement for invoking cloture of debate does not produce protracted speechmaking on the Senate floor, as did predecessors of this rule in earlier periods of our history. Rather, the upper chamber now functions under a “stealth filibuster” system that in practical effect requires action by a supermajority to pass proposed bills. This Article demonstrates why this system offends a constitutional mandate of legislative majoritarianism in light of well-established Framing-era understandings and governing substance-over-form principles of interpretation. Having established the presence of a …

Habeas Corpus Proceedings In The High Court Of Parliament In The Reign Of James I, 1603-1625, Donald E. Wilkes Jr.

Scholarly Works

English parliamentary habeas corpus proceedings have been neglected by scholars. This Article ends that neglect. This Article focuses on the parliamentary habeas corpus proceedings that occurred in the reign of King James. The Article corrects several misunderstandings relating to the history of the writ of habeas corpus in England and to the history of the English Parliament (which in the seventeenth century commonly was referred to as the High Court of Parliament).

Part I of the Article provides answers to questions concerning the historical background and context of the parliamentary habeas corpus proceedings in the High Court of Parliament during …

Book Review, Economic Foundations Of International Law, By Eric A. Posner And Alan O. Sykes, Timothy L. Meyer

Scholarly Works

This essay reviews Eric Posner’s and Alan Sykes’ Economic Foundations of International Law. In the last ten years or so, economic analysis of international law has established itself as a mainstream discipline, providing insights into why international law is structured as it is, the conditions under which it is effective, and how it might be improved. Economic Foundations consolidates and extends these insights. As such, the book is destined to be a starting place for economic analysis of international law. The book is divided into five parts. Part I provides an introduction to international law and the tools necessary to …

Unconstitutionality And The Rule Of Wide-Open Cross-Examination: Encroaching On The Fifth Amendment When Examining The Accused, Ronald L. Carlson, Michael S. Carlson

Scholarly Works

When Georgia adopted a new evidence code on January 1, 2013, it embraced the rule on scope of cross-examination which local courts have traditionally followed. This is the wide-open rule which permits the cross-examiner to range across the entire case, no matter how limited the direct exam. Subjects foreign to the direct can be freely explored, limited only by the rule of relevancy.

Commentators have associated the majority, more limited cross-examination methodology with American jurisprudence and the wide-ranging approach with English courts. Reflecting this divide, the Supreme Court of South Dakota recognized "two principal schools of thought" when it comes …

The Great Writ Hit: The Curtailment Of Habeas Corpus In Georgia Since 1967, Donald E. Wilkes Jr.

Scholarly Works

A welcome development, the landmark Georgia Habeas Corpus Act of 1967 modernized and vastly expanded the availability of postconviction habeas corpus relief in the Georgia court system. Since the early 1970s, however, there has been an unfortunate trend of imposing crippling restrictions on use of the Georgia writ of habeas corpus to obtain postconviction relief. Six restrictive Georgia habeas statutes, enacted between 1973 and 2004, have, among other things, reduced the number of claims which may be asserted in postconviction habeas proceedings, curtailed appeals of postconviction habeas decisions denying relief, and created a maze of procedural barriers to obtaining postconviction …

Michael J. Sandel, What Money Can't Buy: The Moral Limits Of Markets, Maurice Stucke

Scholarly Works

No abstract provided.

Representing Entities: The Value Of Teaching Students How To Draft Board Resolutions And Other Similar Documentation, Joan Macleod Heminway

Scholarly Works

This edited transcript comprises a panel presentation and related Q&A at "Educating the Transactional Lawyer of Tomorrow," Emory University School of Law's biennial transactional law conference held June 6-7, 2014. The transcript includes Professor Heminway's talk and a separate presentation by Professor Marcia Narine on "How to Make Transactional Law Less Terrifying and a Bit More Interesting." The panel, "Transactional Drafting: Beyond Contracts," features approaches to teaching transactional business law courses.

Professor Heminway's presentation addresses the benefits of teaching the drafting of board resolutions, minutes, and consents in corporate finance and corporate governance courses. She describes how teaching law students …

Employer Retaliation Policies And The Retaliation Catch-22, Alex B. Long

Scholarly Works

No abstract provided.

Business Lawyering In The Crowdfunding Era, Joan Macleod Heminway

Scholarly Works

Crowdfunding is all the rage in conversations about small business finance. Yet, as with many other rapidly developing business innovations, practicing lawyers were, perhaps, secondary players in the development of business models for crowdfunding. The advent of crowdfunding (and crowdfund investing, in particular) has exposed fault lines in business lawyering. This short Article defines the crowdfunding era, highlights a few examples of observed lawyering lapses, and, in concluding, offers a brief, preliminary assessment of possible sources of these dislocations and best practices. The conclusion also expresses a related cautionary note about the need for lawyers to redouble their efforts at …

Securitization Of Aberrant Contract Receivables, Thomas E. Plank

Scholarly Works

Originators of traditional receivables, such as automobile loans, use securitization and structured finance debt transactions to obtain financing at lower net costs than traditional secured financing. The typical securitization or structured finance debt transaction combines (i) a sale of receivables to a separate, bankruptcy remote, special purpose legal entity (an “SPE”) and (ii) a loan to the SPE secured by the receivables. This combination produces lower net financing costs because the SPE’s lender can obtain repayment of its loan from the receivables while avoiding the costs that the Bankruptcy Code imposes on direct secured lenders to originators that could become …

The Doctrine Of Legal Writing - Book Review Of Linda H. Edwards's Readings In Persuasion: Briefs That Changed The World, Lucille A. Jewel

Scholarly Works

In legal education, the word “doctrinal” is most often used to refer to courses such as Contracts, Torts, Property, and Criminal Procedure. Doctrinal has long been used as a descriptive adjective, but also as a word of exclusion. We often hear that legal writing courses are not substantive and not as significant as doctrinal courses. Linda Edwards’s new book, Readings in Persuasion: Briefs that Changed the World, persuasively challenges this view.

This paper evaluates what we mean when we use the term doctrinal in a legal education context and considers six powerful descriptors for the doctrine of legal writing, all …

Respecting Parents' Fundamental Rights In The Adoption Process: Parents Choosing Parents For Their Children, Teri Dobbins Baxter

Scholarly Works

The Supreme Court has a long history of recognizing parents’ fundamental right to direct the upbringing of their children. While courts have recognized that this right requires deference to parents’ decisions regarding education, religion, and medical decisions, little attention has been paid to parents’ fundamental rights in the adoption process. Specifically, relatively few courts or scholars have addressed parents’ right to choose adoptive parents if the biological parents voluntarily agree to terminate their rights and place the child for adoption. Because choosing adoptive parents for their child is an exercise of the right to control the care and custody of …

The Ohio State University Dispute Resolution In Special Education Symposium Panel, Dean Rivkin

Scholarly Works

No abstract provided.

Will Ticket Scalpers Meet The Same Fate As Spinal Tap Drummers? The Sale And Resale Of Concert And Sports Tickets, Gregory M. Stein

Scholarly Works

When a concert or sporting event sells out, the performer appears popular and the venue enjoys the opportunity to maximize profits from the sale of parking, merchandise, food, and beverages. For these and other reasons, event sponsors often underprice tickets. This underpricing creates commercial opportunities for ticket resellers, who purchase in bulk at the lower price and resell the tickets at a profit, and also for intermediaries such as StubHub. Legal and technological efforts to squelch ticket resales have largely failed, leaving the secondary ticket market stronger than ever.

This secondary ticket market is economically efficient, but it also creates …

Teaching Transactional Skills Using Real Clients From Clinic To Classroom, Brian Krumm, Shelley Dunck

Scholarly Works

No abstract provided.

A Primer On Professionalism For Doctrinal Professors, Paula Schaefer

Scholarly Works

Legal education reform advocates agree that law schools should integrate “professionalism” throughout the curriculum. Ultimately, it falls to individual professors to decide how to incorporate professionalism into each course. This can be an especially difficult task for doctrinal professors. The law — and not the practice of law — is the focus of most doctrinal casebooks. Law students typically do not act in role as lawyers in these classes, so they are not compelled to resolve professional dilemmas in class, as students would be in a clinic or simulation-based course. As a result, it takes some additional preparation and thought …

How Can Competition Agencies Use Behavioral Economics?, Maurice Stucke

Scholarly Works

No abstract provided.

The Hyperregulatory State: Women, Race, Poverty And Support, Wendy A. Bach

Scholarly Works

Vulnerability and dependency theory offers a rich and promising vision for those who seek to conceptualize and build a more responsive state. In theorizing a road to a supportive state, however, what would it mean to take up the challenge of intersectionality? What would it mean to center the analysis around key aspects of the relationship between legal institutions and the poor, disproportionately women and families of color who have no choice but to avail themselves of what remains of a shredded social safety net? The Hyperregulatory State argues that, for women who have no choice but to avail themselves …

The Lawyer's Monopoly — What Goes And What Stays, Benjamin H. Barton

Scholarly Works

We live in a time of unprecedented changes for American lawyers, probably the greatest changes since the Great Depression. That period saw the creation of the lawyer’s monopoly through a series of regulatory modifications. Will we see the same following the Great Recession? Formally, no. This Article predicts that formal lawyer regulation in 2023 will look remarkably similar to lawyer regulation in 2013. This is because lawyer regulators will not want to rock the boat in the profession or in law schools during a time of roil.

Informally, yes! We are already seeing a combination of computerization, outsourcing, and nonlawyer …

Indie Lawyering: A New Model For Solo And Small Firm Practice, Lucille A. Jewel

Scholarly Works

Indie lawyering is a new style of lawyering that uses technology to connect the individual practitioner with individual clients and collaboratively solve legal problems in a community-centered way.

How Congress Killed Investment Crowdfunding: A Tale Of Political Pressure, Hasty Decisions, And Inexpert Judgments That Begs For A Happy Ending, Joan Macleod Heminway

Scholarly Works

In April 2012, President Obama signed into law the Capital Raising Online While Deterring Fraud and Unethical Non-Disclosure Act (the “CROWDFUND Act”) as Title III of the Jumpstart Our Business Startups Act. The U.S. Securities and Exchange Commission (“SEC”) was compelled to promulgate enabling regulation to effectuate the CROWDFUND Act. That rulemaking has been slow in coming.

During this period of delay, commentators have routinely denounced the postponement and expressed fear that the SEC’s rulemaking would unduly limit investment crowdfunding. This Article demonstrates, however, that it is principally the U.S. Congress that has limited the capacity of the CROWDFUND Act …

Incompetent But Deportable: The Case For A Right To Mental Competence In Removal Proceedings, Fatma E. Marouf

Scholarly Works

Important strides are currently being made toward increasing procedural due process protections for noncitizens with serious mental disabilities in removal proceedings, such as providing them with competency hearings and appointed counsel. This Article goes even further, arguing that courts should recognize a substantive due process right to competence in removal proceedings, which would prevent those found mentally incompetent from being deported. Recognizing a right to competence in a quasi-criminal proceeding such as removal would not be unprecedented, as most states already recognize this right in juvenile adjudication proceedings. The Article demonstrates that the same reasons underlying the prohibition against trial …