Law Commons^™

Reply Brief For Petitioner. Paske V. Fitzgerald, 136 S.Ct. 536 (2015) (No. 15-162), 2015 U.S. S. Ct. Briefs Lexis 3941, 2015 Wl 6748880, Eric Schnapper, Margaret A. Harris

Court Briefs

QUESTIONS PRESENTED McDonnell Douglas Corp. v. Green established a common method of analyzing evidence of an unlawful discriminatory motive. If a plaintiff establishes a prima facie case of discrimination, the defendant must articulate a legitimate, non-discriminatory purpose for the disputed action; where the defendant has done so, the plaintiff has the burden of demonstrating that the proffered purpose was a pretext for discrimination. This Court has repeatedly explained that the burden of establishing a prima facie case is “not onerous.” United States Postal Service Board of Governors v. Aikens held, in the context of a case which had gone to …

Petition For A Writ Of Certiorari. Frew V. Traylor, 136 S.Ct. 1159 (2016) (No. 15-483), 2015 U.S. S. Ct. Briefs Lexis 3632, 2015 Wl 6083505, Eric Schnapper, Timothy B. Garrigan, Timothy David Craig, Jane Swanson

Court Briefs

QUESTIONS PRESENTED Litigation regarding the legal responsibilities of large institutions, such as schools or prisons, is frequently resolved by consent decree. The widespread use of such consent decrees regularly gives rise to inter-related disputes about how to interpret provisions of those decrees, and about when the decrees themselves have been satisfied and may thus be dissolved. In the instant case the Fifth Circuit, expressly disagreeing with the standards applied in the Sixth and Ninth Circuits, interpreted in a narrow manner, and then ordered dissolution of, key provisions earlier agreed to by Texas that protect the rights of millions of indigent …

Brief For Respondents. Tyson Foods, Inc. V. Bouaphakeo, 136 S.Ct. 1036 (2016) (No. 14-1146), 2015 Wl 5634431, David C. Frederick, Derek T. Ho, Matthew A. Seligman, Robert L. Wiggins Jr., Scott Michelman, Scott L. Nelson, Allison M. Zieve, Eric Schnapper

Court Briefs

QUESTIONS PRESENTED

1. Whether, in this class and collective action for wage-and-hour violations arising out of an employer's failure properly to compensate employees for time spent donning and doffing protective equipment and walking between sites where work was performed, the district court abused its discretion in granting certification where plaintiffs proceeded to prove the amount of work they did using individual timesheet evidence and representative proof concerning donning, doffing, and walking times in accordance with Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946).

2. Whether a class or collective action may be certified when it contains members …

Petition For A Writ Of Certiorari. Paske V. Fitzgerald, 136 S.Ct. 536 (2015) (No. 15-162), 2015 U.S. S. Ct. Briefs Lexis 2659, 2015 Wl 4651685, Eric Schnapper, Margaret A. Harris

Court Briefs

QUESTIONS PRESENTED McDonnell Douglas Corp. v. Green established a common method of analyzing evidence of an unlawful discriminatory motive. If a plaintiff establishes a prima facie case of discrimination, the defendant must articulate a legitimate, non-discriminatory purpose for the disputed action; where the defendant has done so, the plaintiff has the burden of demonstrating that the proffered purpose was a pretext for discrimination. This Court has repeatedly explained that the burden of establishing a prima facie case is “not onerous.” United States Postal Service Board of Governors v. Aikens held, in the context of a case which had gone to …

Petition For A Writ Of Certiorari. Rochow V. Life Insurance Company Of North America, 136 S. Ct. 480 (2015) (No. 15-163), 2015 U.S. S. Ct. Briefs Lexis 2657, Eric Schnapper, Erik W. Scharf, John J. Cooper

Court Briefs

QUESTION PRESENTED When a benefit plan, in violation of ERISA, wrongfully denies or delays payment of a benefit, the court may award relief because of the improper delay in the payment of that benefit. The question presented is: Should 'the amount of a remedy based on the improper delay in the payment of a benefit be based on: (1) only the amount needed to redress the loss that the beneficiary sustained as a result of the wrongful delay (the rule in the Sixth Circuit), (2) either the amount needed to redress the loss that the beneficiary sustained as a result …

Brief Amicus Curiae For The National Employment Lawyers Association In Support Of Petitioner. Green V. Brennan, 136 S.Ct. 1769 (2016) (No. 14-613), 2015 Wl 4381189, Roberta L. Steele, Eric Schnapper

Court Briefs

No abstract provided.

Attacking Profit Shifting: The Approach Everyone Forgets, Jeffrey M. Kadet

Articles

No abstract provided.

Expansion Of The Profit-Split Method: The Wave Of The Future, Jeffrey M. Kadet

Articles

Recognizing the reality that multinational corporations are centrally managed and not groups of entities that operate independently of one another, the OECD base erosion and profit-shifting project is considering expanded use of the profit-split method. This article provides background on why expanded use of the profit-split method is sorely needed. In particular, resource-constrained tax authorities in many countries are unable to administer or intelligently analyze and contest transfer pricing results presented by multinational groups. Most importantly, this article suggests a simplified profit-split approach using set concrete and objective allocation keys for commonly used business models that should be welcomed by …

Fair Approaches For Taxing Previously Untaxed Foreign Income, Jeffrey M. Kadet

Articles

In connection with any transition to a new international tax system, we need an approach that effectively deals with the trillions of dollars of previously untaxed foreign income held by CFCs. There is logic and fairness in applying a rate on those earnings that is less than the 35 percent home country rate because the rules of the game are being changed significantly.

Many U.S. multinationals have had legitimate commercial reasons for retaining their earnings overseas. For these, I can happily accept whatever rate Congress chooses, whether it is at the lower 3.5 percent level of TRA 2014, the 14 …

Will Bringing Sales Onshore In The U.K. Lead To Higher Taxes?, Tommaso Faccio, Jeffrey M. Kadet

Articles

The authors discuss changes to the scope of the U.K. royalty withholding tax announced in the 2016 U.K. budget, which, along with the new diverted profits tax, could cause significant increases in U.K. tax paid by multinationals. As will be seen from the example set out in the article, the U.K. royalty withholding tax announced in the 2016 U.K. budget is a major portion of this increase. This will have a major impact on the economics of profit-shifting structures involving revenues that require on-the-ground sales, marketing, and other support activities in the U.K. The U.K.’s actions should be closely examined …

Reply Brief. Hildebrand V. Allegheny County (No. 14-363), 2014 U.S. S. Ct. Briefs Lexis 3445, Eric Schnapper, Marjorie E. Crist

Court Briefs

No abstract provided.

Exploring Precedent, Mary Whisner

Librarians' Articles

Ms. Whisner looks at the concept of precedent in the case law arena and discusses how to handle cases from parallel and lower courts, including unpublished decisions. She offers tips to help make decisions when using precedent, including consulting secondary sources and key numbers.

Unearthing The Lost History Of Seminole Rock, Sanne H. Knudsen, Amy J. Wildermuth

Articles

This Article documents the untethering of Bowles v. Seminole Rock [325 U.S. 410 (1945)]. It shows how, in the 1960s and 1970s, alongside an expanding administrative state, the doctrine transformed into a more mechanical and highly deferential form of agency deference. It further shows that this transformation is marked by a consistent lack of scholarly or judicial reflection on its underpinnings.

In doing so, this Article provides new depth to the emerging critiques of Seminole Rock deference and lends critical support for reexamination of the doctrine.

Private Data, Public Safety: A Bounded Access Model Of Disclosure, Mary D. Fan

Articles

A growing volume of crucial information for protecting public health and safety is controlled by private-sector entities. The data are private in two senses—both proprietary and secluded from scrutiny. Controversies over corporate secrecy, such as sealed settlements that hide deaths due to product defects or nondisclosure of potentially hazardous substances, illustrate how corporate privacy and public safety can conflict.

Courts are conflicted about when to defer to companies’ claims of the right to keep information private when important public interests are implicated by the data that companies refuse to disclose.

This Article proposes allowing what it terms “bounded access” to …

Leaky Covenants-Not-To-Compete As The Legal Infrastructure For Innovation, Robert W. Gomulkiewicz

Articles

The flow of information that naturally occurs when employees change firms plays a vital role in spurring innovation. Numerous law review articles have explored how covenants-not-to-compete (“non-competes”) can impede this important information flow. In 1999 Professor Ronald Gilson published an influential article concluding that California’s ban on non-competes led to the rise of California’s Silicon Valley and the comparative decline of Massachusetts’ high technology corridor known as Route 128. Despite the scholarly praise for California’s approach, most states enforce non-competes that are reasonable.

That may change, however, because many states are re-evaluating their non-compete laws to avoid Gilson’s cautionary tale …

Robotics And The Lessons Of Cyberlaw, Ryan Calo

Articles

Two decades of analysis have produced a rich set of insights as to how the law should apply to the Internet’s peculiar characteristics. But, in the meantime, technology has not stood still. The same public and private institutions that developed the Internet, from the armed forces to search engines, have initiated a significant shift toward developing robotics and artificial intelligence.

This Article is the first to examine what the introduction of a new, equally transformative technology means for cyberlaw and policy. Robotics has a different set of essential qualities than the Internet and accordingly will raise distinct legal issues. Robotics …

Overtaxing The Working Family: Uncle Sam And The Childcare Squeeze, Shannon Weeks Mccormack

Articles

Today, many working parents are caught in a “childcare squeeze”: While they require two incomes just to make ends meet, they end up spending a strikingly large percentage of their income on childcare so that they can work away from the home. Worse still, some parents find themselves “squeezed out” of the market entirely, unable to earn the additional income their family requires because they cannot find jobs that pay enough to offset soaring childcare expenses. This Article argues that the tax laws have played an important role in aggravating these hardships. Currently, the Internal Revenue Code treats the childcare …

Have Fun With Strategic Planning, Kellye Y. Testy

Articles

No abstract provided.

Water Rights, Water Quality, And Regulatory Jurisdiction In Indian Country, Robert T. Anderson

Articles

In the seminal Indian water rights case, Winters v. United Slates (1908), the Court posed this question: "The Indians had command of the lands and the waters-command of all their beneficial use, whether kept for hunting, 'and grazing roving herds of stock,' or turned to agriculture and the arts of civilization. Did they give up all this?" The Court's answer was no, and since then a large body of law has developed around Indian water rights, although the primary focus has been on the amount of water reserved for various tribal purposes. While Indian nations use property rights theories to …

"Nowhere To Run; Nowhere To Hide": The Reality Of Being A Law Library Director In Times Of Great Opportunity And Significant Challenges, Penny A. Hazelton

Articles

Edited remarks presented at a program on January 5, 2015 at the Association of American Law Schools Annual Meeting in Washington, DC.

Corporate Social Responsibility Versus Business And Human Rights: Bridging The Gap Between Responsibility And Accountability, Anita Ramasastry

Articles

This article explores the evolution of business and human rights (BHR) from a lawyer’s perspective and examines how it is contextually and conceptually different from corporate social responsibility (CSR) in its aims and ambitions. While CSR emphasizes responsible behavior, BHR focuses on a more delineated commitment in the area of human rights. BHR is, in part, a response to CSR and its perceived failure. This has led to a gap with two disciplines or strands of discourse that are diverging rather than converging. This article explores how the quest for accountability shapes a very different narrative for BHR, which takes …

‘Truth And Reconciliation’: A Critical Step Toward Eliminating Race And Gender Violations In Tenure Wars, Tamara F. Lawson, Angela Mae Kupenda

Articles

“All is fair in love and war,” and . . . tenure battles? However, even in war there are rules of engagement. In “tenure wars” rules apply too. The American Bar Association requires law schools to employ clear rules of engagement in “tenure wars,” akin to how the United Nations collectively proscribes rules of war between nation states as well as punishes violations committed on the battlefield. When innocent nations are attacked by illegal acts of aggression, a coalition of the willing allies within the United Nations defends against the aggression.

Even if all is fair in love, war, and …

The Lost "Art" Of The Patent System, Sean M. O'Connor

Articles

Patent systems emerged in the early modern period of the West to incentivize development and dissemination of skills-based artisanal innovations. This approach appears to have been adopted by the Framers in drafting the Intellectual Property Clause.

Only later, in the Industrial Revolution, did ‘‘science’’ and ‘‘technology’’ begin to displace ‘‘art’’ as the perceived object of the U.S. patent system. This was in large part because of the emergence of the concept of ‘‘technology’’ itself as science-based innovation in artisanal and mechanized production.

The loss of an ‘‘art’’-based concept of the patent system is arguably causing some of the confusion over …

When Private Property Rights Collide With Growth Management Legislation, Steve P. Calandrillo, Chryssa V. Deliganis, Andrea Woods

Articles

Over the past century, ever-expanding urban and suburban growth in the United States has offered a clear sign of America’s economic vitality, but it has not come without unique challenges of its own. Indeed, efforts to promulgate “smart growth” legislation as an antidote to suburban “sprawl” have proliferated in the past three decades, but it is time we ask ourselves whether their benefits outweigh their unintended consequences. States and local governments that once enthusiastically touted such legislation are beginning to confront unforeseen obstacles–and litigation–that raise the need for immediate reform.

This Article explores the impact of growth management acts on …

In Vitro Fertilization And The Law: How Legal And Regulatory Neglect Compromised A Medical Breakthrough, Steve P. Calandrillo, Chryssa V. Deliganis

Articles

The rise of assisted reproductive technology like in vitro fertilization (“IVF”) as a method of human reproduction represents a remarkable medical achievement. Live births and success rates have increased dramatically in the past decade, so much so that many fertility clinics now “guarantee” a baby to clients who sign up.

But with successes come inevitable downsides. Everyone knows that the price tag is steep, but given the demand, relatively few individuals are deterred. More insidious are the increased birth-defect risks associated with reproductive technologies. For some time it was assumed that these risks were due to the fact that individuals …

Making "Smart Growth" Smarter, Steve P. Calandrillo, Chryssa V. Deliganis, Andrea Woods

Articles

The “smart growth” movement has had a significant influence on land use regulation over the past few decades, and promises to offer the antidote to suburban sprawl. But states and local governments that once enthusiastically touted smart growth legislation are beginning to confront unforeseen obstacles and unintended consequences resulting from their new policies.

This Article explores the impact of growth management acts on private property rights, noting the inevitable and growing conflicts between the two sides that legislatures and courts are now being asked to sort out. It assesses the problems with creating truly intelligent urban growth, ranging from political …

Adversarial Science, Sanne H. Knudsen

Articles

Adversarial science—sometimes referred to as "litigation science" or "junk science"—has a bad name. It is often associated with the tobacco industry's relentless use of science to manufacture uncertainty and avoid liability. This Article challenges the traditional conception that adversarial science should be castigated simply because it was developed for litigation. Rather, this Article urges that adversarial science is an important informational asset that should, and indeed must, be embraced.

In the ecological context, adversarial science is vital to understanding the ecological effects of long-term toxic exposure. Government trustees and corporate defendants fund intensive scientific research following major ecological disasters like …

Reforming Copyright Interpretation, Zahr K. Said

Articles

This Article describes two dimensions of largely unacknowledged and unconstrained realms of interpretive complexity that judges face. First, judges make decisions about sources of interpretive authority somewhere on an axis, one end of which would vest interpretive authority entirely in the text and the other entirely in the context, around or beyond the text. This Article terms this spectrum of judicial decision-making the Text/Context axis. Second, judges must decide what interpretive mode to use in approaching the text, and here they make decisions somewhere along an axis where one end represents analysis or exegesis of the works and the other …

Obergefell'S Squandered Potential, Peter Nicolas

Articles

No abstract provided.

In The Name Of Patent Stewardship: The Federal Circuit’S Overreach In Commercial Law, Xuan-Thao Nguyen

Articles

While the U.S. Court of Appeals for the Federal Circuit has admirably commandeered its stewardship of patent law-Congress bestowed the Federal Circuit with exclusive jurisdiction over patent appeals since 1982-the court has unabashedly extended its reach, unwelcomed, into commercial law. Camouflaged in the name of patent stewardship, the Federal Circuit's foray into commercial law has yielded unexpected and unjustifiable results. This Article argues that, paradoxically, to maintain its stewardship of patent law, the Federal Circuit should not invoke patent law to rationalize its decisions concerning commercial law, which have dramatically altered established commercial law. This encroachment into commercial law, which …