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2008

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Full-Text Articles in Law

The Decline And Fall Of At&T: A Personal Recollection, Richard A. Posner Dec 2008

The Decline And Fall Of At&T: A Personal Recollection, Richard A. Posner

Articles

No abstract provided.


Enforcing Dividend Withholding On Derivatives, Reuven S. Avi-Yonah Nov 2008

Enforcing Dividend Withholding On Derivatives, Reuven S. Avi-Yonah

Articles

The United States imposes a 30 percent withholding tax on dividends paid to nonresident aliens. However, this tax is rarely paid by portfolio investors because they can swap into U.S. securities, receiving payments to match both capital gain and dividends. Treasury has ruled that swap payments have an origin in the taxpayer’s residence so there is no withholding obligation on payments that match dividends. The proposal would impose withholding tax on dividend equivalents on the ground that there is no policy justification for a distinction between dividends, substitute dividends under securities lending transaction (which are treated as dividends ...


The Professional Ethics Of Billing And Collections, Mark A. Hall, Carl E. Schneider Oct 2008

The Professional Ethics Of Billing And Collections, Mark A. Hall, Carl E. Schneider

Articles

Medicine is a Profession on which physicians rely for their livelihood and patients for their lives. If physicians do not charge for services, they cannot survive. If patients cannot afford those services, they cannot survive. No wonder many physicians have long agreed that fees are “one of the most difficult problems . . . between patient and physician.” For years comprehensive insurance subdued this problem, but currently widespread underinsurance and consumer-directed health care are reviving it. Even as the ranks of the uninsured continue to increase,the latest hope for controlling medical costs requires insured patients to pay for much more care out-of ...


The World Of The Framers: A Christian Nation?, Geoffrey R. Stone Oct 2008

The World Of The Framers: A Christian Nation?, Geoffrey R. Stone

Articles

No abstract provided.


Hedonic Adaptation And The Settlement Of Civil Lawsuits, Jonathan Masur, John Bronsteen, Christopher Buccafusco Oct 2008

Hedonic Adaptation And The Settlement Of Civil Lawsuits, Jonathan Masur, John Bronsteen, Christopher Buccafusco

Articles

This Essay examines the burgeoning psychological literature on happiness and hedonic adaptation (a person's capacity to preserve or recapture her level of happiness by adjusting to changed circumstances), bringing this literature to bear on the probability of pretrial settlement in civil litigation. The existing economic and behavioral models of settlement are incomplete because they do not incorporate the effect of adaptation on the sum for which a plaintiff is willing to accept an offer. When an individual first suffers a serious injury, she will likely predict that the injury will greatly diminish her future happiness. However, during the time ...


Rethinking 'Effective Remedies': Remedial Deterrence In International Courts, Sonja B. Starr Sep 2008

Rethinking 'Effective Remedies': Remedial Deterrence In International Courts, Sonja B. Starr

Articles

One of the bedrock principles of contemporary international law is that victims of human rights violations have a right to an "effective remedy." International courts usually hold that effective remedies must at least make the victim whole, and they sometimes adopt even stronger remedial rules for particular categories of human rights violations. Moreover, courts have refused to permit departure from these rules on the basis of competing social interests. Human rights scholars have not questioned this approach, frequently pushing for even stronger judicial remedies for rights violations. Yet in many cases, strong and inflexible remedial rules can perversely undermine human ...


Will The Tax Man Cometh To Coach Rodriguez?, Douglas A. Kahn, Jeffrey H. Kahn Aug 2008

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

Articles

There has been much in the news recently about coaches of major college sports teams moving to a new school and incurring an obligation to make payment to their old school under a buyout provision in their contract. The most recent example is the highly publicized move of Richard Rodriguez from West Virginia University to the University of Michigan. Coach Rodriguez had a contract with his former employer that required him to pay $4 million dollars to West Virginia if he left for another coaching position. After a suit was filed, it was reported that the parties agreed that the ...


The Mediator As Fugu Chef: Preserving Protections Without Poisoning The Process, Maureen Laflin Jul 2008

The Mediator As Fugu Chef: Preserving Protections Without Poisoning The Process, Maureen Laflin

Articles

No abstract provided.


Jesting Pilate, Carl E. Schneider Jul 2008

Jesting Pilate, Carl E. Schneider

Articles

I have two goals this month. First, to examine a case that's in the news. Second, to counsel skepticism in reading news accounts of cases. Recently, I was talking with an admirable scholar. He said that transplant surgeons sometimes kill potential donors to obtain their organs efficiently. He added, "This isn't just an urban legend - there's a real case in California." A little research turned up California v. Roozrokh. A little Googling found stories from several reputable news sources. Their headlines indeed intimated that a transplant surgeon had tried to kill a patient to get transplantable organs ...


A Coordinated Withholding Tax On Deductibility Payments, Reuven S. Avi-Yonah Jun 2008

A Coordinated Withholding Tax On Deductibility Payments, Reuven S. Avi-Yonah

Articles

Prof. Avi-Yonah proposes a 35 percent withholding tax on deductible payments made to a non-U.S. resident, in coordination with other OECD members. The tax is aimed at U.S. residents posing as foreign investors and would be refundable when the beneficial owner shows that the payments have been reported to tax authorities in the owner’s country of residence.


Teaching Ip From An Entrepreneurial Counseling And Transactional Perspective, Sean M. O'Connor Apr 2008

Teaching Ip From An Entrepreneurial Counseling And Transactional Perspective, Sean M. O'Connor

Articles

The traditional law school appellate case method is not well-suited to teaching students either the substance and process of counseling entrepreneurial clients or helping such clients create IP strategies that effectively advance their business vision. This Article describes the author’s creation of new courses and clinics to advance teaching IP in the emerging field of entrepreneurship and innovation law


Resolving Conflict In Non-Ideal, Complex Systems: Solutions For The Law-Science Breakdown In Environmental And Natural Resource Law, Barbara Cosens Apr 2008

Resolving Conflict In Non-Ideal, Complex Systems: Solutions For The Law-Science Breakdown In Environmental And Natural Resource Law, Barbara Cosens

Articles

In 2006, the U.S. Supreme Court decided a consolidated case concerning the scope of the U.S. Army Corps of Engineers' jurisdiction to require permits for dredge and fill of wetlands under section 404 of the Clean Water Act, issuing a plurality, two concurrences, and two dissents. Each opinion has a solid legal foundation, yet none truly makes sense if the science of the resource in question is considered. The opinions in Rapanos v. United States illuminate the struggle at the law-science interface. The problem is not due to either a failure in legal reasoning or a failure in ...


The Roberts Court, Stare Decisis, And The Future Of Constitutional Law, Geoffrey R. Stone Mar 2008

The Roberts Court, Stare Decisis, And The Future Of Constitutional Law, Geoffrey R. Stone

Articles

No abstract provided.


Jurisdictions And Causes Of Action: Commercial Considerations In Dealing With Bullying, Stress And Harassment Cases-Part Ii, Niall Neligan Mar 2008

Jurisdictions And Causes Of Action: Commercial Considerations In Dealing With Bullying, Stress And Harassment Cases-Part Ii, Niall Neligan

Articles

In the concluding part of this two part article, the author will
examine how the courts have developed rules for dealing with
tortious claims for psychiatric injuries arising out of bullying, stress
and harassment cases. The article will examine whether it is
desirable to consolidate and codify employment rights law in order
to provide clarity to prospective litigants. Finally, the author will
argue that if codification is required, then this will necessitate a
change in the nature of present jurisdictions for bringing claims
involving bullying, stress and harassment in the workplace.


Valuing Laws As Local Amenities, Anup Malani Mar 2008

Valuing Laws As Local Amenities, Anup Malani

Articles

The conventional approach to evaluating a law is to examine its effect on proximate behavior. To evaluate a new criminal law, for example, the conventional approach would look to changes in the crime rate. This Article proposes another method for evaluating laws, specifically, that they should be judged by the extent to which they raise housing prices and lower wages in the short run or raise the aggregate value of residential land in the long run. The logic is that the value of a law, much like the value of a lake or a public school, is capitalized into local ...


Finding Hidden Treasures In Special Collections, Stacy Etheredge Feb 2008

Finding Hidden Treasures In Special Collections, Stacy Etheredge

Articles

No abstract provided.


Condemnation Without Justification, Douglas A. Kahn Jan 2008

Condemnation Without Justification, Douglas A. Kahn

Articles

On August 6-8, 2007, Prof. Neil Buchanan posted in Michael Dorf’s blog (http://michaeldorf.org/; for the blog entry regarding the death tax, see http:// michaeldorf.org/2007/08/dishonest-tax-rhetoric-part-3- of-3.html) a three-part series on what he deemed to be examples of political use of terminology to describe tax issues in a manner that is likely to mislead the public. Prof. Buchanan described this practice as ‘‘dishonest tax rhetoric.’’ He awarded first, second, and third prizes for the most egregious examples of dishonest rhetoric. I, however, found no objection to the usages he considered to be the two ...


The Influence Of Law On Sea Power Doctrines: The New Maritime Strategy And The Future Of The Global Legal Order, Craig H. Allen Jan 2008

The Influence Of Law On Sea Power Doctrines: The New Maritime Strategy And The Future Of The Global Legal Order, Craig H. Allen

Articles

For much of the 2006-07 academic year, elements of the US Naval War College facilitated an elaborate process designed to provide the intellectual foundations for the Chief of Naval Operations (CNO) and his staff to draw upon in drafting a new maritime strategy. The process brought together experts from throughout the world to take part in workshops, strategic foundation "war" games, conferences and listening sessions.

It was my privilege as the Charles H. Stockton Chair of International Law to serve as legal advisor throughout the process. This article summarizes the contributions of the Naval War College International Law Department (ILD ...


When Deterrence And Death Mitigation Fall Short: Fantasy And Fetishes As Gap-Fillers In Border Regulation, Mary D. Fan Jan 2008

When Deterrence And Death Mitigation Fall Short: Fantasy And Fetishes As Gap-Fillers In Border Regulation, Mary D. Fan

Articles

Drawing on fieldwork and political theory with Lacanian psychoanalytic influences, this article analyzes how fantasy and fetishes help sustain strategies shown to be no solution to U.S. border control problems. More than a decade after the official launch of the border control paradigm of "prevention through deterrence," predicated on the assumption that ramping up walls, barriers, policing, and the human costs of border crossing would deter, there has been scant evidence of deterrence and much evidence of diversion of migrants to more dangerous crossing points where death rates have soared. Attempts to mitigate the cost to life have also ...


The Dangers Of The Digital Millennium Copyright Act: Much Ado About Nothing?, Steve P. Calandrillo, Ewa A. Davison Jan 2008

The Dangers Of The Digital Millennium Copyright Act: Much Ado About Nothing?, Steve P. Calandrillo, Ewa A. Davison

Articles

In 1998, Congress passed the Digital Millennium Copyright Act (DMCA), a landmark piece of legislation aimed at protecting copyright holders from those who might manufacture or traffic technology capable of allowing users to evade piracy protections on the underlying work. At its core, the DMCA flatly prohibits the circumvention of “technological protection measures” in order to gain access to copyrighted works, but provides no safety valve for any traditionally protected uses.

While hailed as a victory by the software and entertainment industries, the academic and scientific communities ties have been far less enthusiastic. The DMCA’s goal of combating piracy ...


Time Well Spent: An Economic Analysis Of Daylight Saving Time Legislation, Steve P. Calandrillo, Dustin E. Buehler Jan 2008

Time Well Spent: An Economic Analysis Of Daylight Saving Time Legislation, Steve P. Calandrillo, Dustin E. Buehler

Articles

Several nations implemented daylight saving time legislation in the last century, including the United States. The United States briefly experimented with year-round daylight saving time twice—during World War II and the energy crises in the 1970s. Agency studies and congressional hearings from the 1970s show several benefits of year-round daylight saving time, along with potential disadvantages. These studies are dated, and much has changed in the last thirty years. While congressional efforts to extend daylight saving time in 2007 have again focused on the energy savings this legislation would produce, far more meaningful benefits have been largely ignored.

This ...


A "New Approach" To Standards And Consumer Protection, Jane Winn, Nicolas Jondet Jan 2008

A "New Approach" To Standards And Consumer Protection, Jane Winn, Nicolas Jondet

Articles

As consumer use of information and communication technology (ICT) products grows, the importance of ICT standards in consumer markets also grows. While standards for manufactured products were once developed at the national level in formal standards bodies, standards for ICT products today are more likely to be developed by informal standards bodies that target global markets, creating new challenges for national consumer protection laws.

As part of the process of creating a single market, the EU developed an innovative and successful form of “coregulation” known as the “New Approach” that coordinated the work of legislators and standards developers to reduce ...


Insights From Clinical Teaching: Learning About Teaching Legal Writing From Working On Real Cases, Helen A. Anderson Jan 2008

Insights From Clinical Teaching: Learning About Teaching Legal Writing From Working On Real Cases, Helen A. Anderson

Articles

I began teaching legal writing in 1994, but I've since had the occasional foray into practice through supervising students who represented clients in our state's appellate courts. I directed an appellate clinic for two years, and most recently supervised two students who briefed and argued a case in the Washington State Supreme Court. These experiences have taught me some important lessons that I have brought back to my legal writing classes. The clinical cases have not only reminded me what writing for practice really entails, and how hard it is to follow our sage writing advice, but they ...


Real Collaborative Context: Opinion Writing And The Appellate Process, Tom Cobb, Sarah Kaltsounis Jan 2008

Real Collaborative Context: Opinion Writing And The Appellate Process, Tom Cobb, Sarah Kaltsounis

Articles

Several questions motivated us to begin experimenting with new and more ambitious forms of collaboration in our teaching. We aimed to infuse the classroom with what might be called “real collaborative context.” We looked for instances of collaboration that actually occur in the legal process and asked students to participate in those processes in order to gain a better understanding of the social aspects of legal practice and jurisprudence.

Our hope is that students will experience collaboration not so much as a classroom performance whose main goal is to assist in learning something else that could also be taught in ...


Transitioning The Family Business, Dwight Drake Jan 2008

Transitioning The Family Business, Dwight Drake

Articles

By any measure, family-dominated businesses are the backbone of the American economy. Although a large majority of family businesses are managed by senior family members who are older than age 55 and more than 80 percent of such senior family members claim that they want the business to remain in the family, less than 30 percent of such businesses have tackled the challenge of developing a plan for transitioning the business to the next generation.

For over 90 percent of such families, this planning challenge is aggravated by the fact that they have no diversified wealth: the family’s wealth ...


Encouraging Diversity In Law School Deanships, Kellye Y. Testy Jan 2008

Encouraging Diversity In Law School Deanships, Kellye Y. Testy

Articles

Introduction to a symposium.


The Early History Of The Colorado Court Of Appeals, Robert M. Linz, Claire E. Munger Jan 2008

The Early History Of The Colorado Court Of Appeals, Robert M. Linz, Claire E. Munger

Articles

No abstract provided.


The Tax Treatment Of Advance Receipts, David Hasen Jan 2008

The Tax Treatment Of Advance Receipts, David Hasen

Articles

Under the present income tax, some advance receipts are neither taxable on receipt nor deductible on repayment, while others are taxable when received and deductible when repaid or paid for. From a purely theoretical perspective, it remains unclear why different sets of rules apply in different cases. For example, if the fact of unrestricted control over the payment compels the conclusion that it is income, then most advance receipts, including loan proceeds, should be included in income immediately. Conversely, if the presence of an offsetting liability compels the conclusion that the payment is not (yet) income, then most advance receipts ...


Retaliatory Litigation Tactics: The Chilling Effects Of "After-Acquired Evidence", Melissa Hart Jan 2008

Retaliatory Litigation Tactics: The Chilling Effects Of "After-Acquired Evidence", Melissa Hart

Articles

Even a victim of the most egregious discrimination may recover little monetary relief if the defendant discovers, after firing the employee, that she committed some firable offense. Yet the case in which the Supreme Court so held, McKennon v. Nashville Banner Publishing Co., was widely viewed as a victory rather than a defeat for plaintiffs. This surprising perception flowed from the Court's holding that such "after-acquired evidence" of misconduct merely limited remedies but did not completely eliminate plaintiffs' rights to sue for discrimination. Given that McKennon could be portrayed either as a victory for plaintiffs or an unjust denial ...


Study On Safety And Liability Issues Relating To Package Travel, Frank Alleweldt, Klaus Tonner, Marc Mcdonald Jan 2008

Study On Safety And Liability Issues Relating To Package Travel, Frank Alleweldt, Klaus Tonner, Marc Mcdonald

Articles

This study on safety and liability issues relating to package travel, package holidays and package tours highlights some of the gaps in the EU package travel law by answering a number of specific questions related to statistical evidence, Community legislation, and US legislation. It also suggests possible solutions to fill these gaps. The study was prepared by Civic Consulting and is based on a legal analysis, a literature review, an evaluation of statistical data, and on interviews with European and national travel and tour operator associations, individual tour operators, European and national associations of insurers, individual insurance companies, and European ...