Law Commons^™

Reflection, Reality, And A Real Audience: Ideas From The Clinic, Dana M. Malkus

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For a variety of reasons too numerous and complex to recount here, law teachers are increasingly expected to provide law students with more feedback and assessment. This is especially true for those who teach “doctrinal” courses. As a clinician, frequent feedback and assessment are common and essential parts of my teacher-student relationships. I believe the clinical model provides at least three simple—but important—lessons that can inform all law teaching.

United States Of America: The Burden Of Proof In Tax Matters, Henry Ordower

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This United States report responds to a questionnaire that the general reporters prepared for the 2011 meeting of the European Association of Tax Law Professors in Uppsala, Sweden, June 3-5, 2011. The report describes and analyzes the U.S. law on burden of proof and burden of production in tax matters in the context of tax law procedure, including the settlement function of appeals and information reporting, uncertain tax positions (Form UTP) and foreign accounts of U.S. taxpayers. This report also addresses the interplay of burden of proof and the anti-abuse provisions, including the “economic substance” clarification in section 7701(o) and …

Implausible Injuries: Wal-Mart V. Dukes And The Future Of Class Actions And Employment Discrimination Cases, Marcia L. Mccormick

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In 2001, a class action suit was brought against Wal-Mart, where plaintiffs sought to certify a class of every woman who did work for the giant retailer or had worked for it since 1998, seeking relief related to promotion and pay policies. Plaintiffs alleged that they were all discriminated against on the basis of sex. The Supreme Court agreed with Wal-Mart, finding that the class did not meet requirements for class actions set by Rule 23. This article explores the reasoning behind the Supreme Court’s split decision that the class did not meet the commonality standard, which relied significantly on …

Bramble Bush Revisited: Karl Llewellyn, The Great Depression, And The First Law School Crisis, 1929-1939, Anders Walker

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This article recovers the plight of legal education during the Great Depression, showing how debates over practical training, theoretical research and the appropriate length of law school all emerged in the 1930s. Using Bramble Bush author Karl Llewellyn as a guide, it strives to make three points. One, Depression-era critics of law school called for increased attention to practical skills, like today, but also a more interdisciplinary curriculum – something current reformers discount. Two, the push for theoretical, policy-oriented courses in the 1930s set the stage for claims that law graduates deserved more than a Bachelor of Laws degree, bolstering …

More On Veils: Reply To Levitt And Mueller, Chad Flanders

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I thank Justin Levitt and Derek Mueller for their thoughtful replies to my article, which have helped me (at least) to understand my own position better. I also thank the Florida Law Review for giving me the opportunity to briefly respond to them. I can't (and probably couldn't) give detailed or persuasive answers to their questions; instead, I want to flag some issues that they bring up, and which deserve fuller consideration than I was able to give in my article.

Constitutional Limitations On Closing The Gender Gap In Employment, Marcia L. Mccormick

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Despite our country’s efforts to eliminate it, there remain pay and achievement gaps between men and women in the workplace. This article summarizes legal approaches to close the gap, constitutional developments that have slowed government’s power to address the inequality, worrisome trends in recent cases, and the implications of these. This article proposes a future of utilizing congress’s taxing power to address inequalities.

Identifying (With) Disability: Using Film To Teach Employment Discrimination, Elizabeth Pendo

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Building on a prior article about using film to teach health law, this Essay is intended to share my experience using the film Philadelphia as a method of enhancing coverage and discussion of the employment provisions of the Americans with Disabilities Act (ADA), and to provide an opportunity for recognition of, and identification with, the experiences of people with disabilities.

Identifying (With) Disability: Using Film To Teach Employment Discrimination, Elizabeth Pendo

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Building on a prior article about using film to teach health law, this Essay is intended to share my experience using the film Philadelphia as a method of enhancing coverage and discussion of the employment provisions of the Americans with Disabilities Act (ADA), and to provide an opportunity for recognition of, and identification with, the experiences of people with disabilities.

Shareholder Derivative Litigation’S Historical And Normative Foundations, Ann M. Scarlett

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Scholars and judges often say that the United States imported the shareholder derivative action from England, but that is not entirely accurate. What the United States imported from the English Court of Chancery was the necessary parties rule and its exceptions. During the 1800s, U.S. courts recognized an exception to the necessary parties rule that permitted representative lawsuits, but the contours of these actions differed from such actions in England. Today, these lawsuits would be classified as class actions and shareholder derivative actions in the United States. The shared history of these two forms of representative litigation has long been …

Reimagining Merit As Achievement, Aaron N. Taylor

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Higher education plays a central role in the apportionment of opportunities within the American meritocracy. Unfortunately, narrow conceptions of merit limit the extent to which higher education broadens racial and socioeconomic opportunity. This article proposes an admissions framework that transcends these limited notions of merit. This “Achievement Framework” would reward applicants from disadvantaged backgrounds who have achieved beyond what could have reasonably been expected. Neither race nor ethnicity is considered as part of the framework; however, its nuanced and contextual structure would ensure that racial and ethnic diversity is encouraged in ways that traditional class-conscious preferences do not. The overarching …

What Is The Value Of Participation?, Chad Flanders

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In the days after the 2012 presidential election, the pictures became drearily familiar: long lines at polling places from Election Day; people waiting four, five, even six hours in order to vote.¹ The causes? Not enough polling booths. Not enough election workers. Voting machines that did not work, or were too old. Early voting days that were off, then on, then off again. The results? Confusion. Frustration. What might have been an inspiring picture, had it been the first election in some recently democratized country, instead turned into an embarrassment. Even Russia-a famously dysfunctional polity-got into the act. In …

The Lawyer's Toolbox: Teaching Students About Risk Allocation, Dana Malkus, Scott Stevenson, Eric J. Gouvin, Usha Rodrigues

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This Article is the transcript of a panel presented at Emory’s Third Biennial Conference on Transactional Education. The panel focuses on techniques for teaching risk allocation as part of transactional skills classes. The panelists describe their approaches to teaching risk allocation, from syllabus design to final evaluations. How can a professor help students to understand the basic concepts of risk, the role risk plays in business and legal decisions, and how they can help clients manage risk. The techniques for teaching risk allocation include hypotheticals, visual aids, and hands-on assignments. The panelists each take their students down a different path …

Report On Usa, Stephen C. Thaman

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This chapter in the book on transnational inquiries and the protection of fundamental rights in criminal proceedings takes into account the particular, and perhaps unique situation in the United States (US) following the terrorist attacks of 11 September 2001. It explores the laws regulating inquiries by foreign governments who seek evidence in the US to use in criminal proceedings overseas, but primarily the protections recognized by US statutes and jurisprudence when US officials gather evidence abroad. In this respect, the chapter focuses on protections during interrogations, searches, interceptions of confidential communications, and examinations of witnesses and explores when the protection …

Helping Your Client Create And Grow A Successful Nonprofit Organization: A Checklist For The ‘Non’ Nonprofit Attorney, Dana M. Malkus

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The following feature is an abridged version of “Helping Your Client Create and Grow a Successful Nonprofit Organization,” an article which appeared in volume 67 of the Journal of The Missouri Bar in October 2011. The purpose of the original article was to provide Missouri attorneys with information and tools designed to enable them to offer pro bono legal assistance to start-up and established nonprofit organizations.

What Brady V. N.F.L. Teaches About The Devolution Of Labor Law, Michael C. Duff

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In this essay I argue that the Eight Circuit got things very wrong when it found, in Brady v. National Football League, that a district court’s injunctions issued against the NFL in connection with player-filed antitrust suits were barred by the Norris LaGuardia Act of 1932 (NLGA). I argue that the Court’s misreading of the NLGA strikes at the “statutory music” of labor law so dramatically as to represent a judicial unmooring from it. I chronicle other recent important, but relatively minor, judicial departures from the music. I also discuss a major but less recent departure – the employer lockout. …

Can We Please Stop Talking About Neutrality? Koppelman Between Scalia And Rawls, Chad W. Flanders

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In his essay, Religious Liberty as Liberty, Douglas Laycock cautioned against what he would later dub “the Puritan mistake,” which is the mistake, as he put it, of looking at whether religion is a good (or bad) thing rather than seeing religious liberty as “first and foremost a guarantee of liberty.” We should not, Laycock warned, let our understanding of the religion clauses be driven by what we think, substantively, about the value of religion. It should be driven, instead, by an interest in protecting the freedom of religion, and not religion per se.

Although Andy Koppelman positions himself in …

The Case Against The Case Against The Death Penalty, Chad W. Flanders

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Despite the continuing belief by a majority of Americans that the death penalty is morally permissible, thedeath penalty has few academic defenders. This lack of academic defenders is puzzling because of the strong philosophical justification the death penalty finds in traditional theories of punishment. The three major theories of punishment (the deterrent, the retributive, and the rehabilitative), far from showing that the deathpenalty is not justified, tend to provide good reasons to favor of the death penalty. Indeed, every attempt to show that the major theories of punishment rule out the death penalty either involves smuggling in other assumptions that …

State Power To Define Jurisdiction, Samuel P. Jordan, Christopher Kennedy Bader

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States should have much broader authority to decline jurisdiction over federal claims. The normative considerations supporting this doctrine of “reverse abstention” have been developed in previous work. But what of the Constitution? The traditional reading, reflected in existing precedent, asserts that the Supremacy Clause, Article III, and perhaps Article I operate together to create an inflexible obligation for state courts to hear federal claims. This reading is misguided. The Supremacy Clause contains no jurisdictional obligation of its own force, but only gives supreme effect to other validly enacted federal laws. And no other clause provides the authority to impose such …

The Corporate Income Tax: United States Of America Report, Henry Ordower

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In the context of a European project describing variations in the structure of the corporate income tax, this paper briefly describes the United States corporation income tax and contextualizes it within the broader category of business entity taxation. The paper identifies the various tax models that the United States uses for business entities and discusses the historical delinking of limited liability protection for owners and managers from traditional double taxation.

Preserving The Corporate Tax Base Through Tax Transparency, Henry Ordower

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International corporate tax competition continues to exert pressure on legislatures to reduce corporate tax rates as well as the rate imposed on shareholders. To combat this pressure, this commentary recommends eliminating the corporate income tax. Instead corporations should become tax transparent so that a full taxon corporate income is imposed on corporate owners but collected initially at corporate level through a required withholding tax at the maximum rate applicable to individuals. Contemporary data processing capacity enables corporations to track share ownership and report to shareholders amounts withheld on their behalf so that they may include their shares of corporate income …

From Podcasts To Treasure Hunts— Using Technology To Promote Student Engagement, Marcia L. Mccormick

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Three influential calls for reform in legal education, the MacCrate Report, the Carnegie Report, and most recently the Stuckey Report, have all recommended that professors use teaching methods to provide greater opportunities for students to practice problem solving skills and receive feedback on their performance. Being a lawyer is much more than memorizing rules; students need to be able to understand the big picture and use the details to problem solve. This article details how to use audio and written podcast summaries to help students see the big picture in a subject and how each smaller topic fits together into …

Utopian Visions Toward A Grand Unified Global Income Tax, Henry Ordower

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Over the past several decades, many countries that historically relied on progressive taxes on income, wealth, and decedents’ estates for much governmental revenue have shifted to less progressive and regressive taxes on labor and consumption. Reasons for the shift are many but include international tax competition as world economies have become increasing global. This paper assumes that progressive taxes remain the best and fairest choice for providing governmental revenue, so that a fundamental change in the scope of the progressive income tax is essential to protect progressivity.

The paper argues that the rapid growth of international cooperation on economic and …

Kite: Irs Wins Qtip Battle But Loses Annuity War, Kerry A. Ryan

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In Kite, the Tax Court held that a 10-year deferred annuity constituted adequate and full consideration for a transfer of family partnership interests, even though the transferor died before receiving any payments. The court also held that the liquidation of a qualified terminable interest property trust and subsequent sale of its assets constituted a disposition of the qualifying income interest for life, resulting in a deemed transfer of the entire trust under section 2519. Ryan discusses those holdings and two more issues that were not raised in the Tax Court proceeding but are clearly implicated by the Kite facts.

Making State Merit Scholarship Programs More Equitable And Less Vulnerable, Aaron N. Taylor

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Since the 1993 arrival of Georgia’s Helping Outstanding Pupils Educationally (HOPE) Program, meritscholarships have become popular tools for states seeking to maximize human capital within their borders. However, research has concluded both that the bulk of merit scholarships goes to students with the least financial need and the popularity of these programs has led to a de-emphasis on need-based scholarshipfunding in some states. These trends are even more worrisome when these programs are funded by lottery revenue, as is the case with HOPE. Lotteries are inherently regressive because the people who play (and pay related taxes) tend to be poor …

Strange Traffic: Sex, Slavery & The Freedom Principle, Anders Walker

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This article uses the recent prosecution of a sex trafficking case in rural Missouri to argue three points. One, the federal law of trafficking is currently being used in unanticipated ways, including the apprehension of individuals who pay for sex. Two, trafficking invites creative use precisely because it provides prosecutors with a more salient justification for punishment than either legal moralism or harm; a rhetorical plea to anti-slavery that enjoys a longstanding but under-theorized role in criminal law rhetoric. Three, anti-slavery’s recurrence in criminal law rhetoric underscores a larger doctrinal point, namely that H.L.A. Hart’s version of the harm principle …

The Roberts Court And The Law Of Human Resources, Matthew T. Bodie

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The rise of human resources departments parallels the increase in the myriad statutory and regulatory requirements that govern the workplace. The Supreme Court's decisions in labor and employment law cases are largely monitored and implemented by HR professionals who must carry out these directives on a daily basis. This article looks at the Roberts Court's labor and employment law cases through the lens of human resources. In adopting an approach that is solicitous towards HR departments and concerns, the Roberts Court reflects a willingness to empower these private institutional players. Even if labor and employment law scholars do not agree …

Larry From The Left: An Appreciation, Matthew T. Bodie, Grant M. Hayden

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This essay approaches the scholarship of the late Professor Larry Ribstein from a progressive vantage point. It argues that Ribstein's revolutionary work upended the "nexus of contracts" theory in corporate law and provided a potential alternative to the regulatory state for those who believe in worker empowerment and anti-cronyism. Progressive corporate law scholars should look to Ribstein's scholarship not as a hurdle to overcome, but as a resource to be tapped for insights about constructing a more egalitarian and dynamic economy.

Participation As A Theory Of Employment, Matthew T. Bodie

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The concept of employment is an important legal category, not only for labor and employment law, but also for intellectual property law, torts, criminal law, and tax. The right-to-control test has dominated the debate over the definition of “employee” since its origins in the master-servant doctrine. However, the test no longer represents our modern notion of what it means to be an employee. This change has played itself out in research on the theory of the firm, which has shifted from a model of control to a model of participation in a team production process. This Article uses the theory …

Micro-Symposium On Orin Kerr's 'A Theory Of Law', Laura Appleman, Shawn Bayern, Adam D. Chandler, Robert Cheren, Miriam A. Cherry, Ross E. Davies, Lee Anne Fennell, Paul A. Gowder, Caitlin Hartsell, Kieran Healy, Robert A. James, Jeffrey H. Kahn, Orin S. Kerr, Jacob T. Levy, Jeffrey M. Lipshaw, Orly Lobel, Geoffrey A. Manne, Chad M. Oldfather, Ronak Patel, Jeffrey A. Pojanowski, Alexandra J. Roberts, Kent Scheidegger, Arthur Stock, Anders Walker

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For more than a century, careful readers of the Green Bag have known that “[t]here is nothing sacred in a theory of law...which has outlived its usefulness or which was radically wrong from the beginning...The question is What is the law and what is the true public policy?” Professor Orin Kerr bravely, creatively, and eloquently answered that question in his article, “A Theory of Law,” in the Autumn 2012 issue of the Green Bag. Uniquely among all theories of law that I know of, Kerr’s answer to the fundamental question of law and true public policy enables all scholars to …

The Gamification Of Work, Miriam A. Cherry

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In the language of cyberspace, introducing elements of fun or game-playing into everyday tasks or through simulations is known as the process of “gamification.” The idea that people could be working while they play a video game – in some instances without even knowing that they are working – is becoming part of our reality. Gamification is an important element of what in previous writing I have termed “virtual work,” that is, work that is taking place wholly online, in crowdsourcing arrangements, or in virtual worlds. The gamification of work is an important trend with important implications for employment law. …