Law Commons^™

The Supreme Court And The Timing Of Deductions For Accrual-Basis Taxpayers, Erik M. Jensen

Faculty Publications

This article examines the Supreme Court's two decisions in the late 1980s dealing with the timing of deductions, United States v. Hughes Properties (1986) and United States v. General Dynamics Corp. (1987), and finds those decisions wanting. Indeed, it is hard to understand why the Court exercised its discretionary jurisdiction twice in such a short period when the cases involved technicalities that seemed to overwhelm the generalist justices and when subsequent disputes with similar factual situations would be affected by statutory changes.

Commentary: The Extraordinary Revival Of Dred Scott, Erik M. Jensen

Faculty Publications

In a widely reprinted 1987 speech, Justice Thurgood Marshall characterized the Supreme Court's decision in Dred Scott v. Sandford as accurately reflecting the Founders' views on many subjects, including race. The author argues that Dred Scott was dead wrong on almost all counts-as many contemporaneous commentators, including Abraham Lincoln, understood. It was not helpful to our understanding of history and constitutional law for Justice Marshall to have resuscitated this horribly misguided decision.

Taxation, The Student Athlete, And The Professionalization Of College Athletics, Erik M. Jensen

Faculty Publications

It has become common to hear critics argue that big-time college athletes are being exploited by their institutions and that they should be paid fair market value for their services. This article argues that such a policy, if adopted, could have some unexpected consequences for the colleges. The traditional justification for not taxing athletic income (basically meaning, for most big-time schools, that from football and basketball) is that the participants are student athletes, that the activities are related to the colleges’ overall educational purposes, and that the athletic revenue is therefore not subject to the tax on unrelated business income. …

Monroe G. Mckay And American Indian Law: In Honor Of Judge Mckay’S Tenth Anniversary On The Federal Bench, Erik M. Jensen

Faculty Publications

This essay, written in honor of Judge Monroe G. McKay's tenth anniversary as a member of the United States Court of Appeals for the Tenth Circuit, considers the difficulty of justifying a separatist policy for the American Indian; examines the opinions authored by Judge McKay in American Indian law cases; and discusses the McKay opinions and the issue of separation.

Hughes Properties And General Dynamics: The Supreme Court, The All Events Test, And The 1984 Tax Act, Erik M. Jensen

Faculty Publications

This article discusses United States v. Hughes Properties, a 1986 case in which the Supreme Court blessed an accrual-basis taxpayer's current deduction for amounts guaranteed as payoffs on progressive slot machines but for which no winner had yet been determined. The author notes that, had the case been governed by section 461(h) of the Internal Revenue Code, as it was amended by the 1984 Tax Reform Act, the deductions would have been deferred. He speculates about the Supreme Court's willingness to decide an issue rendered moot by subsequent legislation, and ponders the effect that the decision in Hughes Properties will …

The Deduction Of Future Liabilities By Accrual-Basis Tax­Payers: Premature Accruals, The All Events Test, And Eco­Nomic Performance, Erik M. Jensen

Faculty Publications

Written during the Paleozoic era, this article considers the timing of deductions by accrual-basis taxpayers. The article considers timing problems under pre-1984 prior law, where the benefit of a deduction for a future obligation could provide grossly inflated tax benefits; the limitations of the all events test as the sole determinant of timing; and the effect of statutory changes made by the Tax Reform Act of 1984, which require that a deduction be deferred until "economic performance" has occurred.

The Uneasy Justification For Special Treatment Of Like-Kind Exchanges, Erik M. Jensen

Faculty Publications

This article considered the traditional justifications for nonrecognition treatment for like-kind exchanges, as provided in section 1031 of the Internal Revenue Code, and found them wanting. The article nevertheless concluded that, even though the justifications are imperfect, section 1031 has some plausibility to it, at least as applied to traditional, simultaneous exchanges.

Note, The Standard Of Proof Of Causation In Legal Malpractice Cases, Erik M. Jensen

Faculty Publications

This note argues that the use of a but for standard of causation in legal malpractice cases - i.e., that the plaintiff must show that but for the malpractice he or she would have prevailed in the underlying action - is too stringent, making recovery unreasonably difficult. The note therefore argues for implementation of a lost substantial possibility of recovery standard. This is just a student note, and an old one at that, but a lot of courts and commentators have cited it. In any event, modesty and self-restraint seem to play little role when authors are deciding what to …

The Penumbral Public Domain: Constitutional Limits On Quasi-Copyright Legislation, Aaron K. Perzanowski

Faculty Publications

This Article attempts to reconcile the breadth of the modern Commerce Clause with the notion of meaningful and enforceable limits on Congress' copyright authority under Article I, Section 8, Clause 8.

The Article aims to achieve two objectives. First, it seeks to outline a general approach to identifying and resolving inter-clause conflicts, sketching a methodology that has been lacking in the courts' sparse treatment of such conflicts. Second, it applies that general framework to the copyright power in order to outline the scope of constitutional prohibitions against quasi-copyright protections. In particular, this application focuses on the federal anti-bootlegging statutes and …

The Magnificence Of The Disaster: Reconstructing The Sony Bmg Rootkit Incident, Deirdre Mulligan, Aaron K. Perzanowski

Faculty Publications

Late in 2005, Sony BMG released millions of Compact Discs containing digital rights management technologies that threatened the security of its customers' computers and the integrity of the information infrastructure more broadly. This Article aims to identify the market, technological, and legal factors that appear to have led a presumably rational actor toward a strategy that in retrospect appears obviously and fundamentally misguided.

The Article first addresses the market-based rationales that likely influenced Sony BMG's deployment of these DRM systems and reveals that even the most charitable interpretation of Sony BMG's internal strategizing demonstrates a failure to adequately value security …

Article 85: If Someone Is Wrongfully Detained Or Convicted, What Recourse Does He Have? What Compensation Is He Entitled To? Is This Monetary, And If So, Where Does The Money Come From? What Should The Court Take Into Consideration When Deciding On Compensation?, Robert C. Bliss

War Crimes Memoranda

No abstract provided.

Bail In The 21st Century: Is There A Role For Ankle Monitors, Electronic Supervision, And The Like Within International Criminal Justice In Light Of Long Pre-Trial Detention?, David Selby

War Crimes Memoranda

No abstract provided.

After The 1991 Gulf War Ended, The Shiite Population In Southern Iraq And The Kurdish Population In Northern Iraq Revolted Against The Iraqi Government... : Deliberate Attacks, Imams From These Mosques Were Providing Medical Treatment And Shelter To Injured Civilians And Insurgents..., Emily J. Peters

War Crimes Memoranda

. 3) Iraqi troops entered hospitals in Basrah and Karbala and summarily murdered any males between the age of 12 and 70. Iraqi troops also murdered, tortured, and raped medical personnel who had provided treatment to insurgents. 4) Ali Hassan Al Majid rounded up male civilians (of fighting age) and ordered them to drink petrol. After these men drank the petrol, Al Majid ordered his troops to fire or personally fired himself tracer bullets into the victims so that the petrol would ignite and the victim would explode. This tactic was used to intimidate people into offering information about insurgent …

Can An Alleged Superior Officer Be Convicted Under Command Repsonsibility Even If He Was Deprived Of His Authority But Still Held A Formal Command Position? What Is Meant By “Effective Control” Under The Doctrine Of Command Repsonsibility?, Zachery Lampell

War Crimes Memoranda

No abstract provided.

Can The International Criminal Court Accept A Referral From The United Nations Security Council Of The Murder Of Former Lebanese Prime Minister Rafik Hariri?, Madhusha Dissanayake

War Crimes Memoranda

No abstract provided.

In The Interest Of Conserving Tribunal Resources, What Concrete Limits Can A Trial Chamber Put On The Parties To Reduce The Length Of Their Cases, Limit Cross-Examination, And Impose A Date Certain For Completion Of Trial?, Michelle Oliver

War Crimes Memoranda

No abstract provided.

Does The Principle Of Lex Mitior Limit The Iraqi High Tribunal’S Ability To Impose The Death Sentence On Those Found Guilty Of Capital Crimes?, Meredith Wood Bowen

War Crimes Memoranda

No abstract provided.

Do Any Of The Following Acts, Which Occurred During Iraq’S Invasion And Occupation Of Kuwait, Constitute Crimes Under The Iht Statute: (1) The Removal Of Food, Medical Supplies, And Medical Equipment From Kuwait To Iraq; (2) The Destruction Of Kuwaiti Assets And Infrastructures; And (3) The Destruction Of Kuwaiti Oil Wells And Oil Refineries, And The Deliberate Release Of Oil Into The Persian Gulf?, Andrew M. Katz

War Crimes Memoranda

No abstract provided.

How Will International Criminal Procedural Law Supplement Uncertainties Or Gaps In Cambodian Criminal Procedural Law During The Course Of The Cec Proceedings; And What Are The Major Impediments In Implementing International Procedural Safeguards On A Domestic Level?, Sarah Schauerte

War Crimes Memoranda

No abstract provided.

Evidentiary Challenges Due To The Lapse Of Thirty Years: Investigations Conducted By Ngo’S, The Role Of Hearsay Evidence, Forensic Evidence As An Important Feature, As Well As National And International Jurisprudence On Such Factors, Kathleen Rudis

War Crimes Memoranda

No abstract provided.

Many Legal Scholars And Defense Attorneys Appearing Before The Iht Have Argued That, Under Relevant Principles Of International Law, A State Cannot Recognize The Consequences Of An Illegal Action…, Brian J. Field

War Crimes Memoranda

No abstract provided.

What Is The Purpose Of The Pre-Trial Chamber’S Confirmation Hearing?, Kevin Hussey

War Crimes Memoranda

No abstract provided.

What Course Of Action May Or Must The Trial Chamber Take If, At The End Of The Trial, It Is Not Satisfied That All Of The Elements Of The Crime Charged Have Been Proven Beyond A Reasonable Doubt But It Is Satisfied That The Evidence Proves Beyond A Reasonable Doubt All The Elements Of A Different, But Related, Crime., Traci M. Donovan

War Crimes Memoranda

No abstract provided.

What May/Must The Trial Chamber Do If All Of The Elements Of The Charged Offense Are Not Proven Beyond A Reasonable Doubt But All Of The Elements Of An Uncharged, But Related, Offense Are Proven Beyond A Reasonable Doubt?, Christopher Kringel

War Crimes Memoranda

No abstract provided.

What Precautions And Remedies May A Trial Chamber Exercise When Defense Counsel Fails To Appear?, Kyle David Miller

War Crimes Memoranda

What precautions and remedies may a trial chamber exercise when defense counsel fails to appear? If the purpose of a defendant is to delay the proceedings, is replacing counsel tantamount to acceding to such delay? Why are tribunals reluctant to rely on co-counsel serving as lead counsel? Should duty counsel be appointed? Should the international courts use a public-defender system to avoid such problems? Do national bars have a duty to honor punishments doled out by the international tribunals? Is there any practical effect?

What Minimum Standards Must The Iht Follow When Assigning Pulic Defenders In Place Of Privately Retained Defense Counsel So That The Defendant’S Right To A Fair Trial Is Not Prejudiced?, Thihan Nyun

War Crimes Memoranda

No abstract provided.

As For Self-Representation In The International Criminal Court, Is There An International Right To Self-Representation In War Crimes Trials, Or Should Defense Counsel Be Imposed From The Outset Of The Trial At The Icc? How Should The Icc Deal With A Defendant-Lawyer Who Uses Self-Representation To Disrupt The Orderly Trial Proceedings?, Chelan Bliss

War Crimes Memoranda

No abstract provided.

One Of The Likely Defendants Before The Extraordinary Chambers, Mr. Ieng Sary, Received A Pardon By The King Of Cambodia In Relation To His 1979 Conviction For Genocide. The U.N. And Cambodia Have Agreed That [The Eccc] Should Decide The Scope Of This Pardon.., Conor Mclaughlin

War Crimes Memoranda

No abstract provided.

Are Civilian Informants From Al Dujayl Liable Before The Iht?, Kevin Pendergast

War Crimes Memoranda

No abstract provided.

Did The Forcible Transfer, Active Concealment, Torture And Murder Of Non-Combatant Kuwaiti Citizens And Third Party Nationals In August Of 1991 To March Of 1992 Constitute Any Crime Within The Jurisdiction Of The Iraqi High Tribunal? Did The Capture, Torture And Public Murder Of Captive Coalition Troops By Iraqi Troops During The 1991 War Constitute A Crime Within The Jurisdiction Of The Iraqi High Tribunal? Did The Seizure And Placement Of Non-Combatant Foreigners In Direct Proximity To Military Targets Constitute A Crime Within The Jurisdiction Of The Iraqi High Tribunal?, Gregory S. Mcneal

War Crimes Memoranda

No abstract provided.