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Full-Text Articles in Law

Overcoming Overdisclosure: Toward Tax Shelter Detection, Joshua D. Blank Sep 2009

Overcoming Overdisclosure: Toward Tax Shelter Detection, Joshua D. Blank

Faculty Scholarship

Every year, thousands of taxpayers and their advisors mail special disclosure forms that reveal details of potentially abusive tax strategies to the Office of Tax Shelter Analysis of the Internal Revenue Service in Ogden, Utah. The mandatory disclosure regime has been widely praised as one of the government's most effective weapons in its war on tax shelters. In contrast to this largely positive portrayal, however, this Article argues that the current tax shelter disclosure law is incomplete. While the primary aim of current law is to deter non-disclosure of information by taxpayers and advisors, my claim is that the ...


Courts And The Patent System, Dan L. Burk, Mark A. Lemley Jul 2009

Courts And The Patent System, Dan L. Burk, Mark A. Lemley

Faculty Scholarship

Innovation and patent law work differently in different industries. To some degree, the courts’ interpretations of patent and trademark law accommodate those differences. It is not much of an exaggeration to say that the patent system must bend or break: a patent system that is not flexible enough to account for these industry differences is unlikely to survive, let along accomplish its stated goals. We believe the system has the flexibility to do both, but this will require the courts to better recognize and use the policy levers they have been given.


What's Wrong With Shaming Corporate Tax Abuse, Joshua D. Blank Apr 2009

What's Wrong With Shaming Corporate Tax Abuse, Joshua D. Blank

Faculty Scholarship

The public spotlight has emerged as a potential instrument for stopping corporations from pursuing shady tax shelters. The inadequacy of the exclusive use of monetary penalties and targeted statutory fixes has recently led politicians and academics to suggest that the federal government consider an approach to the corporate tax abuse problem that has been used in other contexts for thousands of years - public shaming. This Article considers the merits of public shaming as a deterrent of corporate tax abuse. While several commentators have focused on the potential advantages of shaming sanctions as a response to corporate tax abuse, this Article ...


Moving To The Right, Perhaps Sharply To The Right, Erwin Chemerinsky Jan 2009

Moving To The Right, Perhaps Sharply To The Right, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.


The Evolution Of J.D. Programs – Is Non Traditional Becoming More Traditional?: Introduction, Bryant G. Garth Jan 2009

The Evolution Of J.D. Programs – Is Non Traditional Becoming More Traditional?: Introduction, Bryant G. Garth

Faculty Scholarship

No abstract provided.


Managing Migration Through Crime, Jennifer M. Chacón Jan 2009

Managing Migration Through Crime, Jennifer M. Chacón

Faculty Scholarship

In recent years, an increasing number of scholars and commentators have turned their attention to the criminalization of migration in the United States. These scholars have focused largely on the incorporation of criminal law methodologies into the realm of civil immigration enforcement and adjudication. In contrast, this Essay centralizes the criminal prosecutions of migration-related offenses. Part I describes the ways in which the regulation of migration has increasingly become a subject of the criminal law, and discusses the explosion of migration-related criminal prosecutions over the past few years. Part II provides several examples of the use of criminal prosecutions in ...


Teaching That Speech Matters: A Framework For Analyzing Speech Issues In Schools, Erwin Chemerinsky Jan 2009

Teaching That Speech Matters: A Framework For Analyzing Speech Issues In Schools, Erwin Chemerinsky

Faculty Scholarship

The Supreme Court's recent decision in Morse v. Frederick continues a pattern of judicial unwillingness to protect student speech. A key flaw in the Court's approach is in failing to draw a distinction between government control over the curriculum (and even student speech in curricular activities) and student speech outside the school's curriculum. Deference to school officials is appropriate in the former, but not in the latter. Unfortunately, the Court's approach, as reflected in its last few decisions concerning student speech, has been uncritical deference to schools and far too little protection of student speech.


The Meaning Of Bush V. Gore: Thoughts On Professor Amar’S Analysis, Erwin Chemerinsky Jan 2009

The Meaning Of Bush V. Gore: Thoughts On Professor Amar’S Analysis, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.


Foreword: Why Write?, Erwin Chemerinsky Jan 2009

Foreword: Why Write?, Erwin Chemerinsky

Faculty Scholarship

What is the purpose of legal scholarship? The foreword to the University of Michigan Law Review's book review issue provides an excellent occasion for addressing this question. This in turn requires considering who are the audiences for legal scholarship and what should count as legal scholarship. This essay offers thoughts and suggestions on these important topics.


The Arbitration–Litigation Relationship In Transnational Dispute Resolution: Empirical Insights From The U.S. Federal Courts, Christopher A. Whytock Jan 2009

The Arbitration–Litigation Relationship In Transnational Dispute Resolution: Empirical Insights From The U.S. Federal Courts, Christopher A. Whytock

Faculty Scholarship

This Article explores two dimensions of the relationship between transnational arbitration and litigation. First, what is the relationship between arbitration and litigation as alternative methods of transnational dispute resolution? Some scholars argue that arbitration has largely replaced litigation as a method of transnational dispute resolution; but others suggest that this view may overestimate the ascendance of arbitration and underestimate the continued importance of litigation. Second, what is the role of domestic courts in the transnational arbitration system? While some observers argue that transnational arbitration can operate independently from domestic legal institutions, others emphasize arbitration’s reliance on domestic courts, especially ...


Myth Of Mess? International Choice Of Law In Action, Christopher A. Whytock Jan 2009

Myth Of Mess? International Choice Of Law In Action, Christopher A. Whytock

Faculty Scholarship

Choice of law is a mess—or so it is said. According to conventional wisdom, choice-of-law doctrine does not significantly influence judges’ choice-of-law decisions. Instead, these decisions are primarily motivated by biases in favor of domestic over foreign law, domestic over foreign litigants, and plaintiffs over defendants. They are also highly unpredictable.
This Article argues that these "mess" claims do not accurately describe at least one domain of choice of law—international choice of law—and it demonstrates what is at stake in this debate for global governance. Part I provides a brief overview of choice-of-law doctrine in the United ...


Legal Origins, Functionalism, And The Future Of Comparative Law, Christopher A. Whytock Jan 2009

Legal Origins, Functionalism, And The Future Of Comparative Law, Christopher A. Whytock

Faculty Scholarship

Functionalism is historically one of the most influential approaches to comparative law, and perhaps also the most controversial. This Article argues that legal origins scholarship – though produced primarily by economists, not legal scholars – has a close affinity with the functionalist approach to comparative law. As such, legal origins scholarship puts into relief the promises and perils, the strengths and weaknesses, of functionalism. Legal origins scholarship therefore deserves the careful and critical attention of comparative legal scholars as they deliberate over the place of functionalism in their field’s future.

This Article, contributed to a symposium on “Evaluating Legal Origins Theory ...


Domestic Courts And Global Governance, Christopher A. Whytock Jan 2009

Domestic Courts And Global Governance, Christopher A. Whytock

Faculty Scholarship

Domestic court decisions often make headlines around the world. For example, recent U.S. Supreme Court decisions about the International Court of Justice and the rights of foreign detainees held by the United States at Guantanamo Bay have attracted international attention. However, the role of domestic courts in the world extends far beyond headlines. Seemingly routine decisions on issues such as personal jurisdiction, forum non conveniens, choice of law, extraterritoriality, and arbitration have implications for global governance. Legal scholarship divides these issues into doctrinal categories like civil procedure, conflict of laws, and international law. But by doing so, it misses ...


Stories Absent From The Courtroom: Responding To Domestic Violence In The Context Of Hiv And Aids, Jane K. Stoever Jan 2009

Stories Absent From The Courtroom: Responding To Domestic Violence In The Context Of Hiv And Aids, Jane K. Stoever

Faculty Scholarship

The presence of HIV or AIDS in domestic violence can change how someone experiences abuse. HIV/AIDS may influence the nature of violent acts and the type of power and control exerted, and it can transform the effect of violence by elevating the level of danger and the consequences of violent acts. Based on public health studies and my clients’ experiences, I have identified eight categories of ways HIV/AIDS is used in domestic violence, including threats to publicize a survivor’s HIV-positive status to others as a way of exerting control; an abusive partner’s interference with an HIV-positive ...


Mistake Of Fact Or Mistake Of Criminal Law? Explaining And Defending The Distinction, Kenneth W. Simons Jan 2009

Mistake Of Fact Or Mistake Of Criminal Law? Explaining And Defending The Distinction, Kenneth W. Simons

Faculty Scholarship

This article makes six points. First, under any plausible normative perspective, the distinction between mistake (and ignorance) of criminal law and mistake of fact must at least sometimes be drawn. Second, the fundamental distinction is between a mistake about the state's authoritative statement of what is prohibited ("M Law"), and a mistake about whether that prohibitory norm is instantiated in a particular case ("M Fact"). Third, when an actor makes a mistake about an evaluative criterion whose content the fact-finder has discretion to elaborate, it is impossible both to allow this discretion and to faithfully realize a jurisdiction's ...


The Restatement (Third) Of Torts And Traditional Strict Liability: Robust Rationales, Slender Doctrines, Kenneth W. Simons Jan 2009

The Restatement (Third) Of Torts And Traditional Strict Liability: Robust Rationales, Slender Doctrines, Kenneth W. Simons

Faculty Scholarship

The traditional strict liability doctrines - liability for abnormally dangerous activities, for wild animals, for abnormally dangerous animals, and for intruding livestock - can largely be explained by a small set of rationales. The Restatement Third Draft offers six principal economic and fairness-based rationales for strict rather than negligence liability: providing the injurer an incentive to optimize (1) the level of care and (2) the level of the activity; and recognizing the justice of requiring the injurer to pay when his activity (3) creates a nonreciprocal risk, (4) affords him a nonreciprocal benefit, (5) is the exclusive cause of the harm, or ...


Photographs Of Public Domain Paintings: How, If At All, Should We Protect Them?, R. Anthony Reese Jan 2009

Photographs Of Public Domain Paintings: How, If At All, Should We Protect Them?, R. Anthony Reese

Faculty Scholarship

A photograph of an original painting that reproduces it as faithfully as possible can make the painting’s image available to a much wider audience than can visiting the museum where the painting hangs. If the painting is in the public domain, then a photographer needs no copyright permission to photograph it, but the question arises whether copyright protects the resulting photograph. In 1998, the court in the Bridgeman Art Library case answered that question in the negative. That decision has been subject to some resistance from museums and art reproduction photographers. And because museums, even without any copyright protection ...


The Privatization Of Public Legal Rights: How Manufacturers Construct The Meaning Of Consumer Law, Shauhin A. Talesh Jan 2009

The Privatization Of Public Legal Rights: How Manufacturers Construct The Meaning Of Consumer Law, Shauhin A. Talesh

Faculty Scholarship

This article demonstrates how the content and meaning of California’s consumer protection laws were shaped by automobile manufacturers, the very group these laws were designed to regulate. My analysis draws on and links two literatures that examine the relationship between law and organizations but often overlook one another: political science studies of how businesses influence public legal institutions, and neo-institutional sociology studies of how organizations shape law within their organizational field. By integrating these literatures, I develop an “institutional-political” theory that demonstrates how organizations’ construction of law and compliance within an organizational field shapes the meaning of law among ...


The Relationship Between The Isp Safe Harbors And The Ordinary Rules Of Copyright Liability, R. Anthony Reese Jan 2009

The Relationship Between The Isp Safe Harbors And The Ordinary Rules Of Copyright Liability, R. Anthony Reese

Faculty Scholarship

In 1998, Congress added Section 512 to the U.S. Copyright Act, creating a set of safe harbors that protect online service providers (OSPs), under certain conditions, from liability for copyright infringement that might occur in the course of specified online activities. Some commentators have viewed two of these safe harbors, sections 512(c) and 512(d), as departing from the ordinary copyright regime by protecting OSPs from claims of direct infringement by the OSP itself, but following the ordinary copyright regime by allowing secondary liability claims against an OSP for infringements committed by users of the OSP’s services ...


Chronicling The Complexification Of Negotiation Theory And Practice, Carrie Menkel-Meadow Jan 2009

Chronicling The Complexification Of Negotiation Theory And Practice, Carrie Menkel-Meadow

Faculty Scholarship

The essay reviews the content of twenty-five years of the Harvard Program on Negotiation's Negotiation Journal, identifying themes and issues explored on its pages in the past, the current issues challenging the field’s scholars and practitioners, and the issues likely to confront us in the future. It argues that while we in the field hoped for simple, elegant, and universal theories of negotiation and conflict resolution, the last twenty-five years have demonstrated the increasing complexification of negotiation theory and practice, from increased numbers of parties and issues, and dilemmas of intertemporal commitments, ethics, accountability, and relationships of private ...


Are There Systemic Ethics Issues In Dispute System Design? And What We Should [Not] Do About It: Lessons From International And Domestic Fronts, Carrie Menkel-Meadow Jan 2009

Are There Systemic Ethics Issues In Dispute System Design? And What We Should [Not] Do About It: Lessons From International And Domestic Fronts, Carrie Menkel-Meadow

Faculty Scholarship

This paper reviews ethical issues that occur when systems of dispute resolution are designed for organizations, institutions and situations of iterated disputing and grievances. It explores the state of the art of the field and suggests that ethics codes can be both inductively and deductively derived. After reviewing some ethics issues in both domestic (US) and international contexts, some key ethics issues are described but it is also suggested that the field is too new and under "professionalized" for the formal development of an ethics codes at this point, though some general principles of good practices can be identified.


Maintaining Adr Integrity, Carrie Menkel-Meadow Jan 2009

Maintaining Adr Integrity, Carrie Menkel-Meadow

Faculty Scholarship

On the occasion of the 30th Anniversary of the Center for Public Resources-International Institute for Conflict Prevention & Resolution, Professor Menkel-Meadow considers the issues in maintaining high quality and integrity in the use of ADR methods, including mediation, negotiation and arbitration. The initial goals of the ADR movement are contrasted to some recent developments and challenges to these goals, with a focus on some key issues to watch in the future -- "sham" processes, misuse of processes for adversarial gain, unethical uses, incompetent parties, lawyers and neutrals and dilution of the original goals of quality and "tailored" dispute resolution.


The Next Generation: Creating New Peace Processes In The Middle East, Carrie Menkel-Meadow, Irena Nutenko Jan 2009

The Next Generation: Creating New Peace Processes In The Middle East, Carrie Menkel-Meadow, Irena Nutenko

Faculty Scholarship

This essay describes how Israeli students in a course on mediation and consensus building taught in an Israeli university law department by an American law professor and an Israeli instructor analyzed and studied the conflict in the Middle East. It describes the suggestions they made for process design for the next stages of whatever peace process might emerge for the region. In light of the students’ suggestions, the authors present some ideas as to how different approaches to reconciliation and peace might be used, managed, and coordinated.


The Status Of Part-Time Evening Programs?: Introduction, Carrie Menkel-Meadow Jan 2009

The Status Of Part-Time Evening Programs?: Introduction, Carrie Menkel-Meadow

Faculty Scholarship

No abstract provided.


Adapting Governance To Climate Change: Managing Uncertainty Through A Learning Infrastructure, Alejandro E. Camacho Jan 2009

Adapting Governance To Climate Change: Managing Uncertainty Through A Learning Infrastructure, Alejandro E. Camacho

Faculty Scholarship

Though legislatures and agencies are considering how to prevent further climate change, some adverse effects from a warming climate are already inevitable. Adapting to these effects is essential, but regulators and scholars have largely neglected this need. This Article evaluates the capacity of natural resource governance to cope with the effects of climate change, and provides a framework for Congress to help it do so.

The Article identifies unprecedented uncertainty as the paramount impediment raised by climate change, and demonstrates how existing fragmented governance is poorly adapted to deal with this challenge. Drawing on lessons from prior regulatory experiments, it ...


Antitrust And Patent Law As Component Parts Of Innovation Policy, Christopher R. Leslie Jan 2009

Antitrust And Patent Law As Component Parts Of Innovation Policy, Christopher R. Leslie

Faculty Scholarship

We have two conceptions of the relationship between antitrust and patent: in tension or complementary. In reality, both conceptions have an element of truth; the relationship is multidimensional. The relationship between antitrust law and patent law involves a series of trade-offs: How much should competition be suppressed in the short run in order to encourage innovation in the long run? Are there instances and industries where intellectual property rights are unnecessarily expansive, such that competition is suppressed more than needed to incentivize innovation? These trade-offs between antitrust and patent take place in the context of broader innovation policy.

Instead of ...


Private Immigration Screening In The Workplace, Stephen Lee Jan 2009

Private Immigration Screening In The Workplace, Stephen Lee

Faculty Scholarship

Although public law scholars have long addressed the problems of accountability generated by private decision-making and "privatization," they have largely ignored this phenomenon in the immigration context. Our ignorance is increasingly indefensible. Millions of employers - private parties - are required by law to screen their workers for unauthorized immigrants, and growing evidence suggests that they use their screening power to ignore workplace protections and to otherwise exploit these workers. This article is the first attempt to apply the insights generated by the privatization literature to immigration law. It argues that our nation's employers have emerged as private immigration screeners who ...


Constitutional Avoidance And Anti-Avoidance By The Roberts Court, Richard L. Hasen Jan 2009

Constitutional Avoidance And Anti-Avoidance By The Roberts Court, Richard L. Hasen

Faculty Scholarship

At the (apparent but not real) end of the October 2008 Supreme Court term, the Court took diametrically opposing positions in a pair of sensitive election law cases. In Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO), the Court avoided deciding a thorny question about the constitutionality of a provision of the Voting Rights Act. The Court did so through a questionable application of the doctrine of “constitutional avoidance.” That doctrine (also known as the “avoidance canon”) encourages a court to adopt one of several plausible interpretations of a statute in order to avoid deciding a tough constitutional ...


The Democracy Canon, Richard L. Hasen Jan 2009

The Democracy Canon, Richard L. Hasen

Faculty Scholarship

Beginning in the 19th century and through the 2008 presidential elections, American state courts have consistently applied a rule of thumb, which I term the "Democracy Canon," to interpret certain state election statutes. According to one early formulation, "[a]ll statutes tending to limit the citizen in the exercise of [the right of suffrage] should be liberally construed in his favor." Despite its pedigree, the canon thus far has been ignored by Legislation and Election Law scholars and appears to have no independent vitality in federal courts. Moreover, the canon has played an unrecognized role in some of the most ...


Bush V. Gore And The Lawlessness Principle: A Comment On Professor Amar, Richard L. Hasen Jan 2009

Bush V. Gore And The Lawlessness Principle: A Comment On Professor Amar, Richard L. Hasen

Faculty Scholarship

This brief essay responds to Professor Akhil Amar's Dunwoody Lecture at the University of Florida, "Bush, Gore, Florida, and the Constitution." In some ways, Professor Amar follows the well-trodden path of liberal critics of the Supreme Court’s opinion in Bush v. Gore in arguing that: (1) the Florida Supreme Court did not violate Article II of the Constitution in ordering a partial recount of votes; (2) the U.S. Supreme Court majority failed to respect Congress’s role in resolving disputes over Electoral College votes; (3) the Court’s equal protection holding which ended the Florida recount promoted ...