Law Commons^™

Macniven V. Westmoreland And Tax Advice: Using "Purposive Textualism" To Deal With Tax Shelters And Promote Legitimate Tax Advice, Scott A. Schumacher

Marquette Law Review

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Banding Together: Reflections On The Role Of The Women's Bar Association Of The District Of Columbia And The Washington College Of Law In Promoting Women's Rights, Jamie Abrams, Daniela Kraiem

Scholarly Articles in Law Reviews & Journals

The Washington College of Law and the Women's Bar Association of the District of Columbia share an important historical connection; Ellen Spencer Mussey and Emma Gillett founded both institutions together, in 1898 and 1917, respectively. Mussey and Gillett were pioneers in legal education, legal reform, and the development of women lawyers. 2 More significant than the work they performed during their lives, however, is the legacy of activism, reform, and support that they ignited by founding two institutions that advance women in the law. These institutions have trained and supported generations of women lawyers through world wars and depressions, through …

How Corporate Lawyers Escaped Sarbanes-Oxley: Disparate Treatment In The Legislative Process, Brent J. Horton

South Carolina Law Review

No abstract provided.

Viewing Virtual Property Ownership Through The Lens Of Innovation, Ryan G. Vacca

Akron Law Faculty Publications

Over the past several years scholars have wrestled with how property rights in items created in virtual worlds should be conceptualized. Regardless of how the property is conceptualized and what property theory best fits, most agree the law ought to recognize virtual property as property and vest someone with those rights.

This article moves beyond the conceptualization debate and asks two new questions from a new perspective. First, how ought virtual property rights be allocated so innovation and creativity can be maximized? Second, how can the law be changed to remove barriers that unnecessarily impede a regime that maximizes creativity …

International Decision: Munaf V. Geren, Harlan G. Cohen

Scholarly Works

This International Decision case comment, the final version of which will be published in Volume 102, No. 4, of the American Journal of International Law (forthcoming), examines the U.S. Supreme Court's decision in Munaf v. Geren, a case arising out of U.S. operations in Iraq and allegations of potential torture in Iraqi custody. In that decision, a unanimous Supreme Court held that the federal courts have jurisdiction under the habeas corpus statute to hear claims brought by American citizens held overseas by American forces "operating subject to an American chain of command, even when those forces are acting as a …

Curing Consumer Warranty Woes Through Regulated Arbitration, Amy J. Schmitz

Faculty Publications

This article proposes legislative procedural reforms accounting for the realities of consumer arbitration that have threatened and denied consumers' access to remedies for companies' violations of public, or statutory, warranty remedies under the Magnuson-Moss Warranty Act (MMWA). Furthermore, the Article proposes to clarify and expand the MMWA's current dispute resolution template in order to resolve judicial disagreement regarding the template's application and foster beneficial use of finding arbitration. Accordingly, this is not a call to ban all pre-dispute arbitration clauses in consumer contracts, but is instead an invitation for more politically palatable reforms that preserve both companies' savings and consumers' …

The Constitutionality Of Court-Martialing Civilian Contractors In Iraq, Margaret Prystowsky

Cardozo Public Law, Policy & Ethics Journal

The article examines the legal implications of outsourcing military functions to private contractors, focusing on the accountability gap under the Uniform Code of Military Justice (UCMJ). It argues that recent amendments to the UCMJ, particularly the expansion of court-martial jurisdiction over civilian contractors during declared wars and contingency operations, address this gap. The analysis concludes that these changes are constitutionally sound, given Congress's authority under Article I, Section 8, and align with legal precedent. However, the article also highlights practical challenges, such as prosecutorial discretion and limited penalties, which may undermine the effectiveness of these reforms.

A Taxing Statute: Costly Conjuncts And Their Logical Fallout, Timothy Deering

Cardozo Public Law, Policy & Ethics Journal

The note critiques the judicial interpretation of the Telephone Excise Tax statute, arguing that courts misapplied the conjunction "and" and the term "varies," leading to flawed rulings. It contends that "and" should not always be interpreted as requiring both conditions (conjunctive) but can sometimes mean "or" (disjunctive) in legal contexts. The author emphasizes the importance of logical precision in statutory interpretation to prevent inconsistent outcomes and unintended financial consequences, such as significant revenue losses for the government.

Punishing Aggressors In U.S. Courts: Will The Act Of State Doctrine Bar National Prosecution Of The Crime Of Aggression?, Gergana Halpern

Cardozo Public Law, Policy & Ethics Journal

The note examines the intersection of the Act of State Doctrine and the prosecution of the crime of aggression in U.S. courts, arguing that while the doctrine does not legally preclude such prosecutions, practical considerations such as political sensitivity and the need for international legitimacy suggest that U.S. courts should await international consensus before proceeding. The analysis highlights the complexities of balancing legal principles with diplomatic realities.

Masthead - Cardozo Public Law, Policy And Ethics Journal, Vol. 7 (2008-09)

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

The Taxation Of Private Equity Carried Interests: Estimating The Revenue Effects Of Taxing Profit Interests As Ordinary Income, Michael S. Knoll

William & Mary Law Review

In this Article, I estimate the tax revenue effects of taxing private equity carried interests as ordinary income rather than as long-term capital gain as under current law. Under reasonable assumptions, I conclude that the expected present value of additional tax collections would be between 1 percent and 1.5 percent of capital invested in private equity funds, or between $2 billion and $3 billion a year. That estimate, however, makes no allowance for changes in the structure of such funds or the composition of the partnerships, which might substantially reduce tax revenues below those estimates.

Rethinking Drug Inadmissibility, Nancy Morawetz

William & Mary Law Review

Changes in federal statutory policy, state criminal justice laws, and federal enforcement initiatives have led to an inflexible and zero tolerance immigration policy with respect to minor drug use. This Article traces the evolution of the statutory scheme and how various provisions in state and federal law interact to create the current policy. It proceeds to investigate the broad reach of these rules if they are fully enforced, in light of the widespread lifetime experience with minor drug use both in the United States and abroad. Drawing on the experience of law enforcement agencies that have abandoned similarly rigid rules, …

Death By A Thousand Cases: After Booker, Rita, And Gall, The Guidelines Still Violate The Sixth Amendment, David C. Holman

William & Mary Law Review

No abstract provided.

Patently Protectionist? An Empirical Analysis Of Patent Cases At The International Trade Commission, Colleen V. Chien

William & Mary Law Review

The International Trade Commission (ITC) provides a special forum for adjudicating patent disputes involving imports. It offers several advantages over United States district courts to patentees, including relaxed jurisdictional requirements, speed, and unique remedies. Unlike district courts, the ITC almost automatically grants injunctive relief to prevailing patentees, and does not recognize certain defenses to infringement. These features have been justified as needed to prosecute foreign infringers who would otherwise evade U.S. district courts. They have also led to charges that the ITC is protectionist and unfair to defendants and that it fosters inconsistency in U.S. patent law. Based on an …

Tempest In An Empty Teapot: Why The Constitution Does Not Regulate Gerrymandering, Larry Alexander, Saikrishna B. Prakash

William & Mary Law Review

Judges and scholars are convinced that the Constitution forbids gerrymandering that goes "too far"--legislative redistrictings that are too partisan, too focused on race, etc. Gerrymanders are said to be unconstitutional for many reasons-they dilute votes, they are anti-democratic, and they generate uncompetitive elections won by extremist candidates. Judges and scholars cite numerous clauses that gerrymanders supposedly violate- the Equal Protection Clause, the Guarantee Clause, and even the First Amendment. We dissent from this orthodoxy. Most of these claims rest on the notion that the Constitution establishes certain ideals about representation in legislatures and about the outcome and conduct of elections. …

A "Plausible" Showing After Bell Atlantic Corp. V. Twombly, Charles B. Campbell

Nevada Law Journal

No abstract provided.

Misunderstanding Freedom From Religion: Two Cents On Madison's Three Pence, Kyle Duncan

Nevada Law Journal

Forty years ago in Flast v. Cohen, the Supreme Court created, for the Establishment Clause only, a dramatic exception to the bedrock principle barring general taxpayer standing. The Court’s new exception was based on one catchy phrase from a famous historical document—James Madison’s 1785 Memorial and Remonstrance Against Religious Assessments. The Court has been notoriously bad at Establishment Clause history, but Flast seemed to push the envelope. Yet neither the Court nor commentators have questioned Flast’s historical credentials over the last four decades. Recently, the Supreme Court took up the taxpayer standing question again in Hein v. Freedom From …

Emeritus Lawsuits: Much Ado About Nothing?, Robert M. Jarvis

Nevada Law Journal

No abstract provided.

Judicial Independence: A Call For Reform, Terence J. Lau

Nevada Law Journal

According to retired Justice Sandra Day O’Connor, judicial independence is threatened now more so than any other time throughout history. Attacks on the judiciary have crossed the line from legitimate criticism to partisan harangues that threaten the ability of judges to rule fairly and without bias. This Article begins with a historical look at judicial independence as it has shaped the Supreme Court, including the impeachment of Samuel Chase, Ex Parte McCardle and the court-packing plan and concludes with a call for reform to the judicial appointment process to permit greater transparency in judicial selection.

Parity Lost: The Price Of A Corporate Tax In A Progressive Tax World, Richard Winchester

Nevada Law Journal

The United States has always taxed income at progressive rates, so that an individual’s tax burden would increase with his ability to pay. Whenever the United States has had an income tax, it has also imposed an entity level tax on the profits of certain businesses, but not others. Both the structure of the progressive tax rates and the design of the entity level tax on business profits have evolved over time, resulting in a wide range of incentives and outcomes. This Article recounts the early history of the income tax in the United States, focusing on how an entity …

The Fall And Rise Of Qualified Immunity: From Hope To Harris, Mark R. Brown

Nevada Law Journal

In Mitchell v. Forsyth (1985) the Court ruled that interlocutory appeals can be taken by government officials from denials of motions for summary judgment based on qualified immunity. Johnson v. Jones (1995) ruled that these interlocutory appeals are limited to legal questions, not matters of fact. This limited the effect of the Court’s holding in Anderson v. Creighton (1987) that some measure of factual similarity between prior reported cases and governmental wrongdoing is necessary to overcome qualified immunity. Hope v. Pelzer (2002) further cabined Anderson by rejecting the Eleventh Circuit’s conclusion that government wrongdoing must be “materially similar” to conduct …

The "Foundations" Of Anti-Foundationalism - Or, Taking The Ninth Amendment Lightly: A Comment On Daniel A. Farber's Book On The Ninth Amendment, Thomas B. Mcaffee

Nevada Law Journal

The Ninth Amendment has served two purposes in constitutional discourse – to refute “textualists” and “originalists,” and to supply the historical grounds for reading the Constitution as a “rights–foundationalist” document. Professor McAffee’s review of Professor Farber’s book on the Amendment raises the question whether, given his prior rejection of “foundationalism,” Professor Farber is able to reconcile these two ends. The review also suggests that, even if the Amendment did grow from the environment that gave us the Declaration of Independence, its history gives us reason to doubt that its purpose was to provide for the legal enforcement of unstated moral …

Back To The Future—Questions For The News Media From The Past, Loren Ghiglione

Law and Contemporary Problems

No abstract provided.

Trial By Media: The Betrayal Of The First Amendment’S Purpose, Gavin Phillipson

Law and Contemporary Problems

No abstract provided.

Trying Cases In The Media: A Comparative Overview, Giorgio Resta

Law and Contemporary Problems

No abstract provided.

The Prosecutor And The Press: Lessons (Not) Learned From The Mike Nifong Debacle, R. Michael Cassidy

Law and Contemporary Problems

No abstract provided.

How Noninstitutionalized Media Change The Relationship Between The Public And Media Coverage Of Trials, Marcy Wheeler

Law and Contemporary Problems

No abstract provided.

The Duke Lacrosse Case And The Blogosphere, K. C. Johnson

Law and Contemporary Problems

No abstract provided.

Sheppard V. Maxwell Revisted—Do The Traditional Rules Work For Nontraditional Media, Gary A. Hengstler

Law and Contemporary Problems

No abstract provided.

Journal Staff

Law and Contemporary Problems

No abstract provided.