Law Commons^™

The Reenactment And Inaction Doctrines In State Tax Litigation, Steve R. Johnson

Scholarly Publications

This installment of Interpretation Matters discusses two related canons of statutory interpretation and illustrates their use in state and local tax controversies. Assume that a state revenue agency or court construes a tax statute and that the construction is later challenged in another case. Between the two cases, the state legislature reenacts the provision without changing it or the legislature takes no action to amend the provision to overturn the construction in the first case. Some courts treat the reenactment without change, or even the inaction, as evidence that the legislature agreed with the construction in the first case, so …

Substance And Form In State Taxation, Steve R. Johnson

Scholarly Publications

In the interpretation of tax statutes, a venerable principle is that “taxation should move in an atmosphere of practical realities rather than amid the intricate and wooden concepts” of legal formalities. That principle is familiar in federal taxation, and it holds no less sway in state and local taxation. Indeed, the idea that the substance of a transaction usually controls over the form of the transaction is not confined to taxation; it is a principle of U.S. law generally.

The principle commands that the underlying reality of the events usually determines tax consequence; the forms or labels attached to the …

Criminal Justice Federalism And National Sex Offender Policy, Wayne A. Logan

Scholarly Publications

This paper, part of a symposium, examines the federal government's sustained effort to recast state policies regarding sex offender registration and community notification laws. While commentators have typically focused on federal Commerce Clause-based incursions on state criminal justice authority, with registration and notification the U.S. has invoked the Spending Clause, a less controversial yet more invasive strategy, driving outcomes nationwide, not merely within the federal system alone. As a result, borrowing from Justice Harlan, the U.S. has "fasten[ed] on the States federal notions of criminal justice" in a major way.

After providing an overview of the historic reluctance of the …

Using Empirical Research To Design Government Citizen Participation Processes: A Case Study Of Citizens' Roles In Environmental Compliance And Enforcement, David Markell, Tom R. Tyler

Scholarly Publications

No abstract provided.

The Low Road To Cy Pres Reform: Principled Practice To Remove Dead Hand Control Of Charitable Assets, Rob Atkinson

Scholarly Publications

In recent decades many scholars have called for reduction of dead hand control of charitable assets. These scholars have recommended the "high road" to reform: sweeping, wholesale revision of legal doctrines by either courts or legislatures. These calls, for all their merit, have gone virtually unheeded. In the face of that apparent impasse, this article recommends a different route, a "low road," to reform: an immediately available set of strategies for removing dead hand control, strategies that can be deployed, in particular cases, right now. The net effect of this piecemeal, practical approach should be to move us, albeit in …

Obedience As The Foundation Of Fiduciary Duty, Rob Atkinson

Scholarly Publications

No abstract provided.

Will The Tax Man Cometh To Coach Rodriguez?, Jeffrey H. Kahn, Douglas A. Kahn

Scholarly Publications

No abstract provided.

Give The Tax Court Transfer Power And Plenary Civil Tax Jurisdiction, Steve R. Johnson

Scholarly Publications

A recent decision again raises questions about the powers that the Tax Court does and should possess. In Mobley v. Commissioner, No. 07-2019 (6th Cir. July 8, 2008), Doc 2008-14970, 2008 TNT 132-13, the Sixth Circuit affirmed a procedural decision of the Tax Court. The Tax Court dismissed a petition because it lacked jurisdiction, and it rejected the taxpayers’ request to transfer the case to a district court. The Tax Court concluded, and the Sixth Circuit agreed, that the Tax Court lacks transfer power. Under 28 U.S.C sections 1631 and 610, the power to transfer cases is conferred only upon …

Notice And Expectation Under Bounded Uncertainty: Defining Evolving Property Rights Boundaries Through The Public Trust And Takings, Hannah J. Wiseman

Scholarly Publications

No abstract provided.

The Right Ones For The Job: Divining The Correct Standard Of Review For Curtilage Determinations In The Aftermath Of Ornelas V. United States, Jake Linford

Scholarly Publications

No abstract provided.

Confronting Evil: Victims' Rights In An Age Of Terror, Wayne A. Logan

Scholarly Publications

This Article examines a unique facet of the victims' rights movement: the use of victim impact evidence in the prosecution of individuals accused of mass killings. The Article provides the first detailed analysis of victim impact evidence employed in the capital trials of those responsible for the bombings in Oklahoma City (168 deaths) and the U.S. Embassy in Kenya (213 deaths), as well as the events of September 11 (almost 3000 deaths), and explores the many difficulties its use presents. These difficulties, the Article argues, warrant attention not only with respect to future U.S. mass killing trials in civilian courts, …

The Identifiability Of Bias In Environmental Law, Shi-Ling Hsu

Scholarly Publications

The identifiability effect is the human propensity to have stronger emotions regarding identifiable individuals or groups than for abstract ones. The more information that is available about a person, the more likely this person’s situation will influence human decisionmaking. This human propensity has biased law and public policy against environmental and ecological protection because the putative economic victims of environmental regulation are usually easily identifiable workers that lose their jobs, while the beneficiaries—people who avoid a premature death from air or water pollution, people who would be saved by medicinal compounds available only in rare plant and animal species, and …

Pro Bono Publico: The Growing Need For Expert Aid, Hannah J. Wiseman

Scholarly Publications

No abstract provided.

Telling Differences: Observational Equivalence, Externalities, And Wrongful Convictions, Manuel A. Utset

Scholarly Publications

We must begin with the mistake and transform it into what is true. That is, we must uncover the sources of error; otherwise hearing what is true won’t help us. It cannot penetrate when something is taking its place. To convince someone of what is true, it is not enough to state it; we must find the road from error to truth.

Ludwig Wittgenstein, Remarks on Frazier's Golden Bough 1e (Rush Rhees ed., A.C. Miles trans., 1979 (emphasis in original).

Reporting On Palin: Negotiations In Political Theater, Erin Ryan

Scholarly Publications

This short essay uses negotiation theory as a lens to analyze the McCain campaign's efforts to manipulate its media coverage during the 2008 presidential election. It offers a timely consideration of the troubling dynamic that can arise between the media and the campaigns that they cover, which often approximates a formal negotiation. The essay compares the campaign's strategies for managing press coverage of its candidates to the well-researched techniques of competitive bargainers, including anchoring tactics, the scarcity effect, and psychological warfare. It reviews how reporters are uniquely hamstrung in coping with competitive bargaining tactics compared to ordinary negotiators, and tailors …

Administrative Law's Federalism: Preemption, Delegation And Agencies At The Edge Of Federal Power, Mark Seidenfeld, Brian Galle

Scholarly Publications

This Article critiques the practice of limiting federal agency authority in the name of federalism. Existing limits bind agencies even more tightly than Congress. For instance, although Congress can regulate to the limits of its commerce power with a sufficiently clear statement of its intent to do so, absent clear congressional authorization an agency cannot, no matter how clear the language of the agency’s regulation. Similarly, although Congress can preempt state law, albeit only when its intent to do so is clear, some commentators have read a line of Supreme Court decisions to hold that agencies cannot, except upon Congress’s …

Reinventing Eugenics: Reproductive Choice And Law Reform After World War Ii, Mary Ziegler

Scholarly Publications

No abstract provided.

In Search Of Robin Hood: Suggested Legislative Responses To Kelo, Mark Seidenfeld

Scholarly Publications

No abstract provided.

Brain Drain, Fernando R. Tesón

Scholarly Publications

No abstract provided.

Human Nature As A New Guiding Philosophy For Legal Education And The Profession, Lawrence S. Krieger

Scholarly Publications

No abstract provided.

Fundraising Tips For Deans With Intermediate Development Programs, Donald J. Weidner

Scholarly Publications

No abstract provided.

Sex Offender Registration And Community Notification Policy: Past, Present, And Future, Wayne A. Logan

Scholarly Publications

Based on a keynote address delivered in conjunction with the Journal's annual symposium, this paper examines several of the major legal and policy issues associated with sex offender registration and community notification laws. Particular attention is dedicated to the Adam Walsh Act, a federal law enacted in July 2006 that continues efforts by Congress to foster changes in state registration and notification regimes as a result of its Spending Clause authority. In addition to discussing the federalism implications of the AWA, the paper examines several of its most significant provisions, including those calling for empirical assessment of registration and community …

Note, Eugenic Feminism: Mental Hygiene, The Women's Movement, And The Campaign For Eugenic Legal Reform, 1900-1935, Mary Ziegler

Scholarly Publications

It is well for every woman, however, to think this matter through and to realize that any women’s movement that is correlated with sterility is doomed to fail and annihilation. What shall it profit us eugenically to have women delve in laboratories, or search the heavens, or rule the nations, if the world is to be peopled by scrubwomen and peasants? – Anna M. Blount, Eugenics, in Woman and the Larger Citizenship, 2847, 2904-05 (Shailer Mathews ed., 1913).

Part I of this article examines the evolution of eugenic thought and policy in the United States between 1880 and 1935, …

Sex Offender Registration And Community Notification Policy: Past, Present, And Future, Wayne A. Logan

Scholarly Publications

It’s a great honor to be with you here today and to provide the keynote address in this wonderful symposium examining issues relating to probation and parole. The panels have been remarkably rich and informative. That they should occur here in Massachusetts, where probation in particular originated in 1841, makes the proceedings today especially fitting.

Probation and parole, of course, are the epitome of state-indeed, community-based criminal justice. As recognized since the founding era, and repeatedly acknowledged by the U.S. Supreme Court, criminal justice in our federal union is mainly an undertaking of state and local governments, which process the …

Rules And Institutions In Developing A Law Market: Views From The United States And Europe, Erin O'Hara O'Connor, Larry E. Ribstein

Scholarly Publications

Developments in European choice of law seem to offer the United States a tantalizing opportunity for escape from the chaos of state-by-state choice-of-law rules. Specifically, the Rome Regulations provide the sort of uniform choice-of-law rules that have eluded the United States. Also, decisions of the European Court of Justice that permit firms to adopt home-country rules in some situations seem to facilitate jurisdictional choice by private parties. This top-down ordering of choice-of-law rules contrasts with the seemingly chaotic and decentralized system that prevails in the United States. However, decentralized American-style federalism might have something to offer Europe because choice of …

Corporations And The Market For Law, Erin O'Hara O'Connor, Larry E. Ribstein

Scholarly Publications

The state competition for corporate law has long been studied as a distinct phenomenon. Under the traditional view, corporations are subject to a unique choice-of-law rule, the “internal affairs doctrine” (IAD). This rule is explained as a historical accident, or by the special logistics of the corporate contract. The resulting market for corporate law appears to have special characteristics, particularly including the dominance of the single state of Delaware. This article challenges the traditional view. It shows that the corporate law market is best understood as a special application of the general market for law. Parties to many types of …

A Realistic Evaluation Of Climate Change Litigation Through The Lens Of A Hypothetical Lawsuit, Shi-Ling Hsu

Scholarly Publications

Several dozen cases that can be classified as "climate change litigation" have been filed worldwide, and legal scholars have already generated a considerable amount of writing on the phenomenon. The debate and scholarship has sometimes gotten ahead of itself, reflecting on the normative implications of outcomes that are still speculative at this point. This Article seeks to ground this debate by analyzing the actual legal doctrines that may serve as bases for liability, and seeks to make a realistic evaluation of the likelihood of success of these types of suits. Climate change litigation, in its various forms, raises issues of …

Rhetorical Atavism And The Narrative Of Progress In The Debate Over Marriage Equality, Courtney Megan Cahill

Scholarly Publications

No abstract provided.

Strategic Governance, Kelli A. Alces

Scholarly Publications

Creditors exercise significant power over financially distressed corporations, thereby pushing corporate managers further into the realm of unprofitable risk aversion. The heavy hand of creditor power and the threats creditors are able to make to managers’ professional stability and success misalign senior officers’ incentives by undermining their freedom to make wealth-maximizing decisions on behalf of the corporation. The importance of independent managerial decision making is paramount in the law of corporate governance and that independence has been inefficiently undermined by the exertion of oppressive creditor control. This Article resolves the problem by creating a mechanism to balance shareholder and creditor …

The American Way: A Swing State Epiphany, Erin Ryan

Scholarly Publications

After weeks of country-rending culture-warmongering in the final stretch of the presidential campaign, my neighbors brought over some cookies last night and offered something that reminded me why we, as a nation, will always come through these ordeals intact... This very short essay tells the story of a politically divided neighborhood in battleground southeast Virginia during the final days of the 2008 presidential election. It forecasts redemption for the fractured American electorate based on a deep kindness between politically opposed neighbors on the eve of the election.