Law Commons^™

“And Yet It Moves”—The First Amendment And Certainty, Ronald K.L. Collins

Articles

Surprisingly few, if any, works on the First Amendment have explored the relation between free speech and certainty. The same holds true for decisional law. While this relationship is inherent in much free speech theory and doctrine, its treatment has nonetheless been rather opaque. In what follows, the author teases out— philosophically, textually, and operationally—the significance of that relationship and what it means for our First Amendment jurisprudence. In the process, he examines how the First Amendment operates to counter claims of certainty and likewise how it is employed to demand a degree of certainty from those who wish to …

Patent Aversion: An Empirical Study Of Patents Collateral In Bank Lending, Xuan-Thao Nguyen, Erik Hille

Articles

The most valuable assets of many companies today are patents. If patents are valuable, why do banks operating across the United States refuse to lend against patents in commercial lending to reduce their risks? Lending is the primary function of banks. Yet banks have a strong aversion to accept patents as collateral, rendering the vast number of patents as idle assets. This empirical study is the first to identify the patent aversion problem as contrary to the frequent headlines of how valuable patents are to the economy. By carefully extracting relevant patent and security interest filings data and examining the …

The Puzzle In Financing With Trademark Collateral, Xuan-Thao Nguyen, Erik Hille

Articles

If trademarks are important corporate assets, do banks and nonbanks lend against trademarks? Or do lenders accept trademark collateral merely as part of a blanket lien? Do banks and nonbanks treat trademarks differently than patents in lending, including venture lending? This first empirical study will attempt to answer these questions. We extract and analyze security interest filings in trademarks and patents against the backdrop of secured transactions law and banking regulations. Based on the data, it seems banks and nonbanks have an aversion for trademark collateral and, by practice, treat most trademarks as idle assets. We also argue that the …

Freedom In Structure: Helping Foreign-Trained And International Graduate Students Develop Thesis Statements By Component, Elizabeth R. Baldwin

Articles

This article explains how foreign-trained and international graduate students can use a thesis development template to find and articulate narrow, novel, non-obvious, and useful claims for their final, academic papers in law. These students, in particular, are in need of clear direction and methods for crafting well-developed claims (or thesis statements), given that many are non-native speakers of English who trained in different legal and educational systems with different expectations about what constitutes good academic writing—in any genre, let alone law. Through the use of a thesis development template (adapted from writing advice by Joseph M. Williams and Eugene Volokh), …

Amending Codes Of Judicial Conduct To Impose Campaign Contribution And Expenditure Limits On Judicial Campaigns, Hugh D. Spitzer, Philip A. Talmadge

Articles

Every judicial campaign year, millions of dollars pour into individual court races around the country. The bulk of that money is donated by lawyers, businesses, and others with financial interests in how judges, especially appellate judges, decide cases. United States Supreme Court rulings on political contributions and spending have hamstrung the ability of states to control larges-cale expenditures in judicial races. This essay reviews empirical research by political scientists who have documented the effect of large campaign donations on how judges decide cases and on the public's perception of court impartiality. It describes how legislatures and courts have addressed (or …

President Trump's Emerging Maritime Policy, Craig H. Allen

Articles

President Donald Trump was elected on a pledge to make America great again. Although he did not enter office with a comprehensive national maritime policy, the elements of such a policy have begun to emerge. Since taking office on January 20, 2017, Trump and the Republican controlled 115th Congress have enacted broad tax reforms and significantly increased defense spending, the first step toward rebuilding the US Navy to 355 ships. The 115th Congress also invoked the Congressional Review Act of 1996 to overturn 14 rules issued by federal agencies during President Obama's term.

Protecting Offshore Areas From Oil And Gas Leasing: Presidential Authority Under The Outer Continental Shelf Lands Act And The Antiquities Act, Robert T. Anderson

Articles

For over one hundred years, presidents of both parties have used executive power to protect America’s lands and waters. Until the second half of the twentieth century, however, little attention was given to protecting the marine ecosystem. Federal authority reaches out to two hundred miles or more in the oceans off the United States, covering an area known as the Outer Continental Shelf. Federal interest in the area historically focused on developing oil and gas reserves and ensuring that the area was open to trade and commerce. The area is also very important for indigenous subsistence uses and commercial and …

Consociationalism Vs. Incentivism In Divided Societies: A Question Of Threshold Design Or Of Sequencing?, Clark B. Lombardi, Pasarlay Shamshad

Articles

Scholarship on constitutional design for post-conflict or divided societies focuses a great deal of attention on two issues: (1) the processes and timing by which constitutional rules should be established and (2) whether constitutions should reflect a consociationalist or incentivist approach to governance. Scholars are increasingly willing to entertain the possibility that constitutions drafted during period of transition from civil war or authoritarianism need not, and often should not, answer immediately all questions that constitutions tend to answer; however, they tend to assume that the question of whether constitutions should be consociationalist or incentivist is one that should not be …

Democratizing Proof: Pooling Public And Police Body-Camera Videos, Mary D. Fan

Articles

There are two cultural revolutions in recording the police. From the vantage of police departments, there is the rapidly spreading uptake of police-worn body cameras. On the public side, community members are increasingly using their cell phone cameras to record the police. Together, these dual recording revolutions are generating important new questions and possibilities regarding the balance of power in producing proof and illuminating contested encounters. This Essay is about how pooling police body camera and public videos can address three emerging challenges in the police recording revolution. The first challenge is the controversy over failures to record contested encounters …

Lessons From Case Study Of Secured Transactions With Bitcoin, Xuan-Thao Nguyen

Articles

There has been some discussion about the flaws in using secured transactions law, Article 9 of the Uniform Commercial Code (U.C.C.), to govern commercial transactions involving Bitcoins as collateral. Flaws necessitate the urgency of immediately fixing of the existing law. In the case of Bitcoins there is still much to learn about the marketplace for secured transactions with Bitcoins as collateral. The rapid change in technology, the speed of new ideas proposed, the constant announcements of adoption and adaptation of smart contracts in transactions, the volatility in cryptocurrency value, the endless reports of scams, and the rise of dark pools …

Sovereign Patent Funds, Xuan-Thao Nguyen

Articles

No abstract provided.

Is The License Still The Product?, Robert W. Gomulkiewicz

Articles

The Supreme Court rejected the use of patent law to enforce conditional sales contracts in Impression Products v. Lexmark. The case appears to be just another step in the Supreme Court’s ongoing campaign to reset the Federal Circuit’s patent law jurisprudence. However, the decision casts a shadow on cases from all federal circuits that have enforced software licenses for more than 20 years and potentially imperils the business models on which software developers rely to create innovative products and to bring those products to market in a variety of useful ways.

For over two decades, we could say that …

A Long-Standing Debate: Reflections On Risk And Anxiety: A Theory Of Data Breach Harms By Daniel Solove And Danielle Keats Citron, Ryan Calo

Articles

This jointly-authored Article contributes mightily to our understanding of a critical aspect of privacy: harm. As Professors Solove and Citron carefully evidence, courts are reticent to countenance the harms that flow from a violation of privacy, even as they compensate similar harms in other contexts. Thus while exposing a plaintiff to an environmental or health risk may be compensable, few decisions vindicate victims of a data breach unless or until they experience actual identity theft. Courts have recognized subjective harms such as fear since the night W de S threw his fateful axe at M de S. But courts seldom …

The Flipside Of Michigan V. Epa: Are Cumulative Impacts Centrally Relevant?, Sanne H. Knudsen

Articles

This Article explores the flipside of Michigan--where the Court's logic can just as well support agencies in their public health and environmental protection efforts. In particular, taking Michigan as a blueprint, this Article argues that cumulative impacts are centrally relevant to environmental regulation and--like cost--deserve a systemic and meaningful role in agency decisionmaking, including in the threshold decision of when to regulate.

In doing so, this Article serves as a counterbalance to the weight of cost benefit rhetoric that would reduce environmental law off to a line item in a strained budget. In support of that thesis, this Article …

Investors' Paradox, Anita K. Krug

Articles

For the first time in an era, new investment products for smaller ("retail ") investors are emerging. These products are mutual funds that engage in the types of trading and investment activities that have long been the province of sophisticated investors. Accordingly, the new funds (called "alternative funds") promise to reduce the gulf between retail investors and their sophisticated counterparts, in terms of portfolio diversification and investment results.

This Article describes the complex mix of factors that spawned alternative funds and critically evaluates the funds' potential, the first scholarly work to do so. It additionally unearths the paradox that impedes …

International Lobbying Law, Melissa J. Durkee

Articles

An idiosyncratic array of international rules allows “consultants” to gain special access to international officials and lawmakers. Historically, many of these consultants were public-interest associations like Amnesty International. For this reason, the access rules have been celebrated as a way to democratize international organizations, enhancing their legitimacy and that of the rules they produce. But a focus on the classic public-law virtues of democracy and legitimacy produces a theory at odds with the facts: Many of these international consultants are now industry and trade associations like the World Coal Association, whose principal purpose is to lobby for their corporate clients. …

Letter From Jeffery M. Kadet And David L. Koontz To The Internal Revenue Serv. (June 5, 2018) On Notice 2018-43, 2018-2019 Priority Guidance Plan Regulatory And Ruling Guidance Concerning Various International Tax Issues, Jeffery M. Kadet, David L. Koontz

Articles

A principal focus of our suggestions is the modernization and updating of regulations as well as providing guidance that will affect the many multinational corporations (MNCs) whose operations take place partially or wholly within the U.S. Many of these MNCs have embarked on complicated and legalistic schemes whose primary purpose is to shift profits without any real operational changes and to record those profits within zero- and low-taxed foreign members. Importantly, this includes not only U.S.-based MNCs, but also the many inverted MNCs that structured their inversions to remain untouched by the §7874 anti-inversion rules.

Profit-Split Method: Time For Countries To Apply A Standardized Approach, Jeffery M. Kadet, Tommaso Faccio, Sol Picciotto

Articles

Now that the OECD has issued its final guidance on the action 10 profit-split method, individual countries must determine how they might consider and apply the profit-split method.

It’s true that some countries have large and well-staffed transfer pricing audit groups that include economists and other tax professionals knowledgeable in the application of transfer pricing principles and rules. However, those resources are never enough to match the legions of specialists that can be deployed by large multinational groups.

The situation is even worse elsewhere. Most countries not only have significant resource and personnel constraints, but they also simply do not …

Effects Of The New Sourcing Rule: Eci And Profit Sharing, David L. Koontz, Jeffery M. Kadet

Articles

For the first time in eons, Congress has seen fit to change a basic rule for the sourcing of income. The Tax Cuts and Jobs Act (P.L. 115-97) minced few words in its addition of a single sentence to section 863(b) that applies to sales or exchanges of inventory property (1) produced in whole or in part by the taxpayer in one country, and (2) sold or exchanged in another country. The United States can either be the country where the inventory property is produced or the country where it is sold.

With this change, income from the sale of …

Shipping Company Ordered To Pay Almost $1m For Demoting Whistleblower, Craig H. Allen

Articles

The US Department of Labor's (DOL) Administrative Review Board recently affirmed a DOL administrative law judge (ALJ) decision in favor of the former master of the Horizon Trader who had filed a complaint alleging that the Horizon violated the Seaman's Protection Act by discharging him in retaliation for making protected safety reports to the US Coast Guard and American Bureau of Shipping. In Loftus v. Horizon Lines, Inc. (DOL ARB Case No. 16-082), the board upheld the ALJ's award of $655,1998.90 in back pay plus interest; $10,000 in compensatory damages for emotional distress; $225,000 in punitive damages, and an unspecified …

“High” Standards: How The Tide Of Marijuana Legalization Sweeping The Country Ignores The Hidden Risks Of Edibles, Steve Calandrillo, Katelyn Fulton

Articles

As a tide of marijuana legalization sweeps across the United States, there is a surprising lack of scrutiny as to whether the benefits of recreational marijuana outweigh the risks. Notably, marijuana edibles present special risks to the population that are not present in smoked marijuana. States that have legalized recreational marijuana are seeing an increase in edible-related calls to poison control centers and visits to emergency rooms. These negative reactions are especially prevalent in vulnerable populations such as children, persons with underlying preexisting conditions, and out-of-state marijuana novices. Unfortunately, research on edible marijuana is scant and state regulatory regimes are …

Disruptive Lending For Innovations: Signaling Model And Banks Selection Of Startups Innovations, Xuan-Thao Nguyen, Erik Hille

Articles

Startups desperately need funding. But lending to startups is too risky for banks. How can banks lend to startups whose cash flow is negative, tangible assets are nonexistent, and most valuable assets are patents? In light of the uncertainties, what can banks do in lending for innovations? In this Article, we turn to economic theory to demonstrate how banks can make their selections of startups, ensuring their returns and encouraging innovations. Specifically, we create a signaling model with partial separating equilibria to demonstrate how banks can address the information asymmetry problem by relying on a truth-telling signal in assessing the …

Visual Rulemaking, Elizabeth G. Porter, Kathryn A. Watts

Articles

Visual politics are seeping into the technocracy. Rulemaking stakeholders—including agencies, the President, and members of the public—are deploying politically tinged visuals to push their agendas at every stage of high-stakes, often virulently controversial, rulemakings. These images, GIFs, and videos usually do not make it into the official rulemaking record, so this new “visual rulemaking” world has not been discussed much by scholars or others.

In this article, we explore the new visual rulemaking culture that emerged in Obama’s presidency, providing examples and discussing relevant policy implications. Although we recognize some risks, we argue that, on balance, visual rulemaking is a …

Indigenous Rights To Water & Environmental Protection, Robert T. Anderson

Articles

This article examines the rights of Indian nations in the United States to adequate water supplies and environmental protection for their land and associated resources. Part I of this article provides a brief background on the history of federal-tribal relations and the source and scope of federal obligations to protect tribal resources. Part II reviews the source and nature of the federal government’s moral and legal obligations to Indian tribes, which are generally referred to as the trust responsibility. Indian reserved water rights and the difficulty tribes experience in protecting habitat needed for healthy treaty resources is discussed in Part …

Sourcing Rule Change: Manufacturing And Competitiveness, Jeffery M. Kadet

Articles

In this article, Kadet explains how the Tax Cuts and Jobs Act favors foreign-based manufacturers selling through a U.S. sales branch over comparable U.S. manufacturers, and he recommends legislative fixes.