Law Commons^™

Pop & Perjury: The Irs Valuation War With The Estate Of Michael Jackson, Beckett Cantley, Geoffrey Dietrich

The University of New Hampshire Law Review

When Michael Jackson died unexpectedly in Los Angeles, California, on June 25, 2009, his career and earnings were nearing an all-time low. Plagued by past sexual abuse allegations, scandals, and questionable health, Michael Jackson’s personal finances were purported to be in complete disarray. However, following his unexpected death, the value of his estate, which was reported to be near to nothing, swelled as the world remembered his beloved contributions to the world and began to purchase accordingly. Sales of Michael Jackson’s music began to soar high. The estate’s value soared even higher as it signed licensing agreements and released new …

Undead Dicta Or Haunted Holdings? A Closer Look At The Zombie Subjective Intent Partnership Formation Cases, Joseph K. Leahy

The University of New Hampshire Law Review

Undead precedents haunt the partnership formation caselaw. But just how dangerous are they? It depends on what type of zombies they are—walking-dead dicta or haunted holdings. Asking a court to ignore bad dicta is nowhere near as difficult for litigants as asking a court to overrule an entire line of cases.

This article takes a closer look at the undead partnership formation cases that were previously identified in a companion article and concludes that nearly all such cases fall into the less-scary category of undead dicta, rather than truly dangerous category of zombie holdings.

Taxing Systemic Risk, Eric D. Chason

The University of New Hampshire Law Review

A tax on the harmful elements of finance—a tax on systemic risk—would raise revenue and also lower the likelihood of future crisis. Financial institutions, which pay the tax, would try to minimize its cost by lowering their systemic risk. In theory, a tax on systemic risk is perfect policy. In practice, however, this perfect policy is unattainable. Tax laws need clear definitions to be administrable. Our current understanding of systemic risk is too abstract and too metaphorical to serve as a target for taxation.

Despite the absence of a clear definition of systemic risk, academics and policy makers continue to …

The Non-Uniform Commercial Code: The Creeping, Problematic Application Of Article 9 To Determine Outcomes In Foreclosure Cases, Morgan L. Weinstein

The University of New Hampshire Law Review

[Excerpt] “This article will discuss the operation of two portions of the Uniform Commercial Code (“U.C.C.”) on mortgage foreclosure law. Article 3 of the U.C.C. governs negotiable instruments, whereas Article 9 governs secured transactions. For decades, courts have utilized Article 3 to determine the rights of lenders and their assigns to enforce mortgage promissory notes and to foreclose mortgages thereon. However, certain jurisdictions do not utilize the U.C.C. in foreclosure cases, whereas other jurisdictions have recently begun to look to Article 9 instead. This article argues that the Uniform Commercial Code should receive more uniform application, with Article 3 as …

The Arc And Architecture Of Private Enforcement Regimes In The United States And Europe: A View Across The Atlantic, Jason Rathod, Sandeep Veheesan

The University of New Hampshire Law Review

The United States and Europe have traditionally taken very different approaches to the regulation of harmful conduct. Previously, European nations relied almost entirely on the public enforcement of laws, whereas the United States relied on a mix of public and private actors. In the United States, private rights of action have played a central role deterring illegal conduct—and, in fact, provided greater deterrence than public enforcers in some areas of law. They have also allowed injured parties to obtain compensation. Despite their very different histories, the private enforcement systems in the United States and Europe are showing signs of convergence …

Mission Impracticable: The Impossibility Of Commercial Impracticability, Jennifer Camero

The University of New Hampshire Law Review

[Excerpt] “Residents of Chicago’s Streeterville neighborhood certainly cannot forget the recent financial crisis thanks to a gaping hole in their midst. That hole is to be the home of the Spire, the tallest building in the Northern Hemisphere, at 2,000 feet high with 1,194 residences ranging in price from $750,000 for a studio to $40 million for the penthouse. The developer, Shelbourne Development Group, Inc., began construction in 2007 using its own funds. It also obtained “starter” funds from Bank of America via a loan agreement that required Shelbourne to demonstrate proof of a construction loan by November 1, 2008. …

California – Land Of “Lawless Taxation” And The “Midnight Special”: Outlier Or Leader In A Growing Trend?, Mystica M. Alexander

The University of New Hampshire Law Review

[Excerpt] “Taxpayers in California recently found themselves the target of a retroactive grab for revenue by the Franchise Tax Board (FTB) in what has called an act of “lawless taxation” by the state of California. The source of the conflict was the Qualified Small Business Stock credit that had been in place in California since 1993. The tax credit, which was designed to encourage innovation and investment in California-based enterprises, allowed business owners who had at least eighty percent of their assets and employees in California to take a credit of fifty percent of the capital gain realized on a …

Global Expansion Of National Securities Laws: Extraterritoriality And Jurisdictional Conflicts, Junsun Park

The University of New Hampshire Law Review

[Excerpt] “As securities fraud has grown increasingly transnational, it has become necessary to expand the reach of anti-fraud provisions to persons and entities participating in global securities markets. So far, however, no single antifraud provision exists to govern the entire global marketplace. Although each country strives to combat international securities fraud by using its own regulatory regime, problems can develop when extraterritorial application of national securities laws leads to regulatory overlapping or conflicts. In light of these problems, it is necessary to set forth clear guidelines for determining whether national securities laws can apply extraterritorially and, if so, how far …

The Majority Approach To Arbitration Waiver: A Workable Test Or A License For Litigants To Play Games With The Courts?, James Savage

The University of New Hampshire Law Review

[Excerpt] “The freedom of parties to agree to arbitrate their disputes is enshrined by contract law and federal law. By inserting a mandatory arbitration clause in a contract, both parties agree that, should a dispute arise between them, they will not bring the matter to court. Instead, they agree to submit any disputes to a mutually-agreed-to third party, such as the American Arbitration Association; this third-party acts like a judge and resolves the dispute. Arbitration has many advantages, such as reducing the cost and increasing the efficiency of dispute resolution. Because of these reduced costs and greater efficiency, businesses can …

A Framework For Analyzing Attorney Liability Under Section 10(B) And Rule 10b-5, Gary M. Bishop

The University of New Hampshire Law Review

[Excerpt] “Lawyers who make their living representing securities issuers face a myriad of challenges. Securities lawyers must navigate and master an intricate body of statutory, regulatory, and case law at both the state and the federal level and ensure that their clients comply with the law. The compliance requirement, however, is not limited to the issuer clients. Defrauded investors will often seek recovery of their losses from both the issuer of the failed investment securities and from the lawyers who represent the issuer, which only exacerbates the complexity of the securities lawyer’s work. These securities fraud actions against lawyers raise …

A Little Common Sense Is A Dangerous Thing: The Inherent Inconsistency Between Ksr And Current Official Notice Policy, Eli M. Sheets

The University of New Hampshire Law Review

[Excerpt] “The question of whether an invention is an obvious variation of existing technology is one that has troubled courts for decades. From its roots in nineteenth century case law to the recent Supreme Court decision KSR v. Teleflex, Inc., the doctrine of obviousness has waxed and waned—moving through a variety of judicially-created tests to a current state that is still far from perspicuous.

This paper will examine obviousness through a particular lens: the U.S. Patent and Trademark Office (“USPTO,” “PTO”) tool known as “official notice”—the practice of declaring a patent application’s claims unpatentable as obvious based on undocumented reasoning, …

Bringing To Heel The Elephants In The Economy: The Case For Ending “Too Big To Fail”, Ann Graham

The University of New Hampshire Law Review

[Excerpt] “Financial institutions labeled “Too Big To Fail” (TBTF) are those whose insolvency could shake the foundations of the U.S. financial system and our economy. The term “too big to fail” became part of our popular vocabulary in the wake of federal bank regulatory intervention to prevent the failure of Continental Illinois National Bank in 1984. After the banking and savings-and-loan crisis of the 1980s, the pros and cons of the TBTF policy were extensively debated. Despite Congressional efforts to limit application of TBTF, the doctrine has returned with renewed vigor during the current crisis. Responding on an ad hoc …

Controlling Patent Prosecution History, Thomas G. Field Jr.

The University of New Hampshire Law Review

[Excerpt] “One of the most salient effects of patent prosecution history arises in the context of the doctrine of equivalents. Under that doctrine, although patent claims may be found to be broader than their literal scope, territory surrendered during prosecution cannot be encompassed as equivalent. Nor can territory forfeited by initial failure to claim be captured under the doctrine of equivalents. Most attorneys who prosecute applications are apt to be aware of such problems and to take measures to avoid them.”

Egyptian Goddess, Inc. V. Swisa, Inc.: A Dramatic Change In The Law Of Design Patents?, Evan Szarenski

The University of New Hampshire Law Review

[Excerpt] “On September 22, 2008, the Federal Circuit, sitting en banc, handed down the most important decision in design patent law in nearly twenty-five years. Egyptian Goddess, Inc. v. Swisa, Inc. (Egyptian Goddess III) abolished the point-of-novelty test first set out in Sears, Roebuck & Co. v. Talge and adopted by the Federal Circuit in Litton Systems, Inc. v. Whirlpool Corp. The point-of novelty test required patent holders to prove that an accused design appropriated the element which sets the patented design apart from the prior art—in addition to the ordinary-observer standard’s requirement of having substantially the same appearance—in order …

Enforcing Intellectual Property Rights: A Methodology For Understanding The Enforcement Problem In China, Justin Mccabe

The University of New Hampshire Law Review

[Excerpt] “Intellectual property rights are neither protected nor enforced in strict uniformity throughout the world. However, it can be said that in most developed countries, intellectual property is preciously guarded, as evidenced by a plethora of intellectual property statutes, penalties for infringement, and consistent attempts to convince less developed nations to adopt strong—or stronger—intellectual property protections. Despite continued vigilance by developed countries in bringing about increased international harmony among intellectual property regimes, some developing countries sustain questionable enforcement policies. What the driving force is behind intellectual property enforcement policies—or more appropriately, the lack thereof—is a matter of disagreement. In order …

Minority Shareholders And Direct Suits In Closely Held Corporations Where Derivative Suits Are Impractical: Durham V. Durham, Jason M. Tanguay

The University of New Hampshire Law Review

[Excerpt] “Suppose A, B, and C are the sole shareholders and directors of a corporation. A and B have used corporate funds for their own personal use and such use has depleted the corporation’s assets. C now wishes to commence a legal proceeding to recover the damages. Should C be forced to recover through a derivative suit brought on behalf of the corporation just because the depletion of the corporate assets affected all of the shareholders and not just C? Not necessarily.

In Durham v. Durham, the Supreme Court of New Hampshire permitted a minority shareholder, in a closely held …

Wherefore Art Thou Guidelines? An Empirical Study Of White-Collar Criminal Sentencing And How The Gall Decision Effectively Eliminated The Sentencing Guidelines, S. Patrick Morin

The University of New Hampshire Law Review

[Excerpt] “Until the passage of the U.S. Federal Sentencing Guidelines in 1984, federal judges had relatively wide discretion in sentencing federal offenders up to the statutory maximum. This judicial discretion led to a disparity in the sentences of similarly situated offenders, particularly in white-collar cases. The Guidelines attempted to eliminate this disparity by establishing maximum and minimum sentences for certain offenses based on the characteristics of the crime. An important feature of the Guidelines system was its mandatory nature, which decreased and structured the judiciary‘s discretion within bounds set by Congress.

The mandatory application of the Guidelines resulted in stiff …

Fuzzy Logic And Corporate Governance Theories, Z. Jill Barclift

The University of New Hampshire Law Review

[Excerpt] “Fuzzy logic is a theory that categorizes concepts or things belonging to more than one group. A methodology that explains how things function in multiple groups (not fully in one group or another) offers advantages when no one definition or membership in a group accounts for belonging to multiple groups. The principal/agent model of corporate governance has some characteristics of fuzzy logic theory.

Under traditional agency theory of corporate governance, shareholders, directors, and senior corporate officers each belong to groups having multiple attributes. In the principal/agent model of corporate governance, shareholders are owners or principals; directors are shareholders and …

Holmes And The Bald Man: Why Rule Of Reason Should Be The Standard In Sherman Act Section 2 Cases, William J. Michael

The University of New Hampshire Law Review

[Excerpt] "It has been argued that the antitrust laws’ legislative history supports the notion that the laws were meant to prohibit anticompetitive price cuts – regardless of whether they are below cost. Thus, predatory pricing claims used to turn simply on whether the allegedly predatory price was intended to harm rivals. In fact, liability for predatory price discrimination was found without requiring probable or actual monopolization. Yet some cases brought early under Section 2 suggest that below cost pricing was indicative of, if not proof of, the type of conduct Section 2 prohibits. The results under this old scheme were …

Regional Headquarters Schemes By China’S Ministry Of Commerce And The Shanghai Municipal Government: Differences, Limitations, And Possible Combinations, Benjamin Kroymann

The University of New Hampshire Law Review

[Excerpt] "As large multinational companies (“MNCs”) are continuously extending their Chinese market presence, many are considering moving their Asian-Pacific Headquarters to China. In an attempt to attract MNCs’ Regional Headquarters to Mainland China, the Chinese central government is not only faced with competition from regional hubs, such as Singapore and Hong Kong, but also from internal rivals, such as the Shanghai and Beijing municipal governments.

This article analyzes recently passed regulations on the establishment of Regional Headquarters by MNCs in China at the national and the municipal level. The focus will be on Shanghai’s set of regulations, issued in 2002 …

Live Smoke Free Or Die: The Battle For Smoke Free Restaurants In New Hampshire, Jody Hodgdon

The University of New Hampshire Law Review

[Excerpt] "The need for a strict statutory scheme prohibiting or effectively segregating tobacco smoke in restaurants and public buildings in New Hampshire is compelling. One evening, during the summer of 2003, I took my wife and daughter to a restaurant in New Hampshire for dinner. When the time came to be seated, the waiter asked if we preferred to be seated in the smoking or non-smoking section. At our request, he led us to the non- smoking section. Over the course of dinner, I considered the irony of why the restaurant even had a non-smoking section. Smoke was coming over …

Understanding New Hampshire’S Rule 4.2 As Applied To Corporate Litigants: An Explanation And Suggestions For Improvement, Heather Menezes

The University of New Hampshire Law Review

[Excerpt] “Consider this scenario: an attorney represents a client in litigation against a corporation. The attorney gets a call from an employee of that corporation and the employee says, “Everything in your complaint is absolutely correct.” However excited the attorney is to speak with this person, the Rules of Professional Conduct constrain whom the attorney can talk to if a corporation is involved in the pending litigation. In New Hampshire, any attorney can quickly find that Rule 4.2 prohibits contact with a represented party.1 But is this corporate employee a represented party? Even after reading the comment to the rule …

Enforcing Internationally Recognized Human Rights Violations Under The Alien Tort Claims Act: An Analysis Of The Ninth Circuit’S Decision In Doe V. Unocal Corp., Joshua E. Kastenberg

The University of New Hampshire Law Review

[Excerpt] "On September 18, 2002, the Ninth Circuit Court of Appeals ruled that a United States based corporation can be held civilly liable for “aiding and abetting” the internationally recognized human rights violation of forced labor. This case, Doe v. Unocal Corp.1 (Doe II), is significant for its ramifications to human rights litigation in United States courts as well as to future liability for multinational corporations conducting commerce in foreign states. The uniqueness of this case is found in its precedent. No prior federal court has held a corporation liable for human rights violations under the Alien Tort Claims Act. …

An Overview Of Progress In The International Regulation Of The Pharmaceutical Industry, Joan Costa-Font, Aaron Burakoff Harvard University; University Of Barcelona

The University of New Hampshire Law Review

[Excerpt] “The pharmaceutical industry, a significant source of healthcare throughout the world, has several features that distinguish it from the rest of the health industry. In the last half-century, new technology, better technological know-how, and overall economic growth have led to widespread and rapid growth in the pharmaceutical sector. Advancements in pharmaceutical research and development have led to the production of drugs that can routinely combat afflictions that, only years ago, were untreatable or even fatal. Since 1970, the average share of Gross Domestic Product (GDP) on pharmaceutical goods has increased in most Organization for Economic Cooperation and Development (OECD) …

A Method For Modeling Low-Probability, High- Consequence Risk Events: Vessel Traffic On The Lower Mississippi River, George Wooddell, Robert Gramling, Craig J. Forsyth

The University of New Hampshire Law Review

[Excerpt] "A variety of commodities, from chlorine to corn and petroleum to passengers, are transported on the lower Mississippi River regularly. Corn, wheat and coal are the most commonly carried commodities. From a human health and safety perspective, these are relatively benign products in that a vessel accident and spill of these are not directly hazardous to people, whatever other ecological disturbances may ensue. However, over eighty million tons of petroleum products are transported on the river annually. Over a million tons of liquid natural gas traverse the river through the center of New Orleans. Additionally, over 400,000 tons of …