Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

2009

Articles

Discipline
Institution
Keyword

Articles 1 - 30 of 310

Full-Text Articles in Law

Alimony Treatment For A Single Payment, Douglas A. Kahn Dec 2009

Alimony Treatment For A Single Payment, Douglas A. Kahn

Articles

Before 1942 alimony paid to a former spouse was not included in the spouse’s gross income. In 1942 Congress adopted the antecedent to section 71. Although an alimony recipient must recognize gross income, section 215 provides the payer with a nonitemized deduction for the payment. Therefore, the alimony tax provisions provide a congressionally approved income-splitting arrangement which can benefit the parties by shifting income from a high-bracket taxpayer to one in a lower tax bracket. The parties can divide the resulting savings between them by altering the amount paid to the former spouse.


Theorizing Transnational Law - Observations On A Birthday, Susanne Baer Oct 2009

Theorizing Transnational Law - Observations On A Birthday, Susanne Baer

Articles

There are many ways to theorize transnational law. As always, there is a mainstream, and there are “sidestreams.” However, it may be more interesting to consider from which direction such theories develop. Here, in appreciation of what the German Law Journal did to transnational legal conversations, I suggest to consider three directions in transnational legal studies: (1) theorizing from above; (2) theorizing from below; and (3) theorizing from inside. As you will see, much of the theories are in the German Law Journal (GLJ).


Rudkin Testamentary Trust -- A Response To Prof. Cohen, Douglas A. Kahn Sep 2009

Rudkin Testamentary Trust -- A Response To Prof. Cohen, Douglas A. Kahn

Articles

In the August 3 issue of Tax Notes, Prof. Stephen Cohen wrote an article about Justice Sonia Sotomayor’s opinions in three tax cases. Of those three cases, only the opinion she wrote in William L. Rudkin Testamentary Trust v. Commissioner, 467 F.3d 149 (2d Cir. 2006), Doc 2006- 21522, 2006 TNT 203-4, is worthy of comment. Although the Second Circuit’s decision in that case was affirmed by the Supreme Court under the name Knight v. Commissioner, the construction of the critical statutory language that Justice Sotomayor adopted was rejected and criticized by Chief Justice Roberts, writing for a unanimous court. …


Punitive Decisionmaking, William H. Rodgers Sep 2009

Punitive Decisionmaking, William H. Rodgers

Articles

No abstract provided.


Constitutional Flaw?, Carl E. Schneider Jul 2009

Constitutional Flaw?, Carl E. Schneider

Articles

Do terminally ill patients have a constitutional right "to decide, without FDA interference, whether to assume the risks of using potentially life-saving investigational drugs that the FDA has yet to approve for commercial marketing, but that the FDA has determined, after Phase I clinical human trials, are safe enough for further testing"? In Abigail Alliance for Better Access to Developmental Drugs v. McClellan, the United States District Court for the District of Columbia said "no." In Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, a panel (three judges) of the United States Court of Appeals …


Xilinx And The Arm's-Length Standard, Reuven S. Avi-Yonah Jun 2009

Xilinx And The Arm's-Length Standard, Reuven S. Avi-Yonah

Articles

On May 7 the Ninth Circuit decided Xilinx v. Commissioner. By a 2-1 majority, the panel reversed the Tax Court and held that costs of employee stock options must be included in the pool of costs subject to a tax-sharing agreement. The Xilinx decision is important for three reasons. First, cost sharing is probably the key element in current transfer pricing law because it is the principal way in which profits from intangibles get shifted from the United States to low-tax jurisdictions. Moreover, informed observers agree that the allocation of income from intangibles is the most important problem in transfer …


An Information Theory Of Willful Breach, Omri Ben-Shahar, Oren Bar-Gill Jun 2009

An Information Theory Of Willful Breach, Omri Ben-Shahar, Oren Bar-Gill

Articles

Should willful breach be sanctioned more severely than inadvertent breach? Strikingly, there is sharp disagreement on this matter within American legal doctrine, in legal theory, and in comparative law. Within law-and-economics, the standard answer is "no"-breach should be subject to strict liability. Fault should not raise the magnitude of liability in the same way that no fault does not immune the breaching party from liability. In this paper, we develop an alternative law-and-economics account, which justifies supercompensatory damages for willful breach. Willful breach, we argue, reveals information about the "true nature" of the breaching party-that he is more likely than …


Fault In American Contract Law, Omri Ben-Shahar, Ariel Porat Jun 2009

Fault In American Contract Law, Omri Ben-Shahar, Ariel Porat

Articles

No abstract provided.


Obama's International Tax Plan: A Major Step Forward, Reuven S. Avi-Yonah May 2009

Obama's International Tax Plan: A Major Step Forward, Reuven S. Avi-Yonah

Articles

President Barack Obama last week personally introduced a set of proposals to reform U.S. international taxation that are the most significant advance toward preserving the income tax on cross-border transactions since the enactment of the subpart F rules by the Kennedy administration in 1962. (For prior coverage, see Doc 2009-10047 or 2009 TNT 84-1.) In essence, the Obama proposals introduce a 21stcentury version of the vision begun by Thomas Adams in 1918 and continued by Stanley Surrey in 1961: a world in which source and residence taxation are coordinated so as to achieve the underlying goals of the international tax …


Land Virtues, Eduardo Peñalver May 2009

Land Virtues, Eduardo Peñalver

Articles

This Article has two goals. First, I explore some of the descriptive and normative limitations of certain law-and-economics discussions of the ownership and use of land. These market-centered approaches struggle in different ways with features of land that distinguish it from other "commodities." The complexity of land-its intrinsic complexity, but even more importantly the complex ways in which human beings interact with it-undermines the positive claim that owners will focus on a single value, such as market value, in making decisions about their land. Adding to the equation land's "memory," by which I mean the combined impact of the durability …


Foreseeability And Copyright Incentives, Shyam Balganesh Apr 2009

Foreseeability And Copyright Incentives, Shyam Balganesh

Articles

Copyright law's principal justification today is the economic theory of creator incentives. Central to this theory is the recognition that while copyright's exclusive rights framework provides creators with an economic incentive to create, it also entails large social costs, and that creators therefore need to be given just enough incentive to create in order to balance the system's benefits against its costs. Yet, none of copyright's current doctrines enable courts to circumscribe a creator's entitlement by reference to limitations inherent in the very idea of incentives. While the common law too relies on providing actors with incentives to behave in …


Jurisdictions And Causes Of Action In Bullying, Stress And Harassment Cases Part 1, Niall Neligan Mar 2009

Jurisdictions And Causes Of Action In Bullying, Stress And Harassment Cases Part 1, Niall Neligan

Articles

This is the first of a two part article in which the author will critically evaluate the different causes of action and myriad of jurisdictions for bringing a claim in the inter-related fields of bullying, stress and harassment in the workplace from a commercial law perspective. The author will define and trace the separate headings under which the law governing bullying, stress and harassment has evolved. In the second part of the article (which will
appear in the next edition of the journal), the author will examine recent developments in tortious claims for psychiatric injuries arising from bullying, stress and …


Adjusting Alienability, Lee Anne Fennell Mar 2009

Adjusting Alienability, Lee Anne Fennell

Articles

In recent years, the right to exclude has dominated property theory, relegating alienability - another of the standard incidents of ownership - to the scholarly shadows. Law and economics has also long neglected inalienability, despite its inclusion in Calabresi and Melamed's Cathedral. In this Article, I explore inalienability rules as tools for achieving efficiency or other ends when applied to resources that society generally views as appropriate objects of market transactions. Specifically, I focus on inalienability's capacity to alter upstream decisions by would-be resellers about whether to acquire an entitlement in the first place. By influencing these acquisition decisions, inalienability …


Study On Online Hotel Reservation Systems, Frank Alleweldt, Klaus Tonner, Marc Mcdonald Feb 2009

Study On Online Hotel Reservation Systems, Frank Alleweldt, Klaus Tonner, Marc Mcdonald

Articles

This study, conducted by Civic Consulting, looks at both pre-contractual and contractual matters concerning online hotel reservation systems, examines relevant Community rules, identifies gaps and, where needed, discusses possible policy options. Key conclusions The study shows that the impact of Community law on online hotel


When Patients Say No (To Save Money): An Essay On The Tectonics Of Health Law., Mark A. Hall, Carl E. Schneider Feb 2009

When Patients Say No (To Save Money): An Essay On The Tectonics Of Health Law., Mark A. Hall, Carl E. Schneider

Articles

The ultimate aim of health care public policy is good care at good prices. Managed care stalled at achieving this goal by trying to influence providers, so health policy has turned to the only market-based option left: treating patients like consumers. Health insurance and tax policy are now pressuring patients to spend their own money when they select health plans, providers, and treatments. Expecting patients to choose what they need at the price they want, consumerists believe that market competition will constrain costs while optimizing quality. This classic form of consumerism is today's watchword. This Article evaluates this ideal type …


Canonizing The Civil Rights Revolution: The People And The Poll Tax, Bruce Ackerman, Jennifer Nou Jan 2009

Canonizing The Civil Rights Revolution: The People And The Poll Tax, Bruce Ackerman, Jennifer Nou

Articles

No abstract provided.


The Pto's Future: Reform Or Abolition?, Jonathan Masur Jan 2009

The Pto's Future: Reform Or Abolition?, Jonathan Masur

Articles

No abstract provided.


Debunking Blackstonian Copyright (Reviewing Neil Weinstock Netanel, Copyright's Paradox (2008)), Shyam Balganesh Jan 2009

Debunking Blackstonian Copyright (Reviewing Neil Weinstock Netanel, Copyright's Paradox (2008)), Shyam Balganesh

Articles

No abstract provided.


Foreign Officials And Sovereign Immunity In U.S. Courts, Curtis A. Bradley Jan 2009

Foreign Officials And Sovereign Immunity In U.S. Courts, Curtis A. Bradley

Articles

The Foreign Sovereign Immunities Act (FSIA) provides that foreign states shall be immune from the jurisdiction of U.S. courts unless the suit falls within a specified statutory exception to immunity. There is currently a conflict among the federal circuit courts over whether suits against individual foreign officials are covered by the FSIA. If such suits are not covered by the FSIA, additional questions are raised concerning a possible common law immunity for foreign officials. This Insight describes both the conflict and the additional questions.


A Speech On The Structural Constitution And The Stimulus Program, Richard A. Epstein Jan 2009

A Speech On The Structural Constitution And The Stimulus Program, Richard A. Epstein

Articles

No abstract provided.


Great Power Politics And The Structure Of Foreign Relations Law, Daniel Abebe Jan 2009

Great Power Politics And The Structure Of Foreign Relations Law, Daniel Abebe

Articles

No abstract provided.


Same-Sex Marriage And The Establishment Clause, Geoffrey R. Stone Jan 2009

Same-Sex Marriage And The Establishment Clause, Geoffrey R. Stone

Articles

No abstract provided.


The Modernizing Mission Of Judicial Review, David A. Strauss Jan 2009

The Modernizing Mission Of Judicial Review, David A. Strauss

Articles

Constitutional interpretation, as it is usually conceived, looks to the past-to an old text, to history, to precedent, to tradition-in an effort to limit political majorities But over the last generation or so, a different approach to the Constitution has emerged. That approach, which might be called modernization, tries to anticipate trends in public opinion instead of taking lessons from the past; and a modernizing court, instead of facing down popular majorities, yields when it finds out that it has misgauged public opinion. This modernizing approach has characterized the Supreme Court's recent work in many disparate areas, including, among others, …


Herring V. United States: A Minnow Or A Shark Term Paper, Albert W. Alschuler Jan 2009

Herring V. United States: A Minnow Or A Shark Term Paper, Albert W. Alschuler

Articles

No abstract provided.


The Supremacy Of Ec Law In Ireland, Elaine Fahey Jan 2009

The Supremacy Of Ec Law In Ireland, Elaine Fahey

Articles

No abstract provided.


The Modern Law Of Corporate Groups: An Empirical Study Of Piercing The Corporate Veil In The Parent-Subsidiary Context, John H. Matheson Jan 2009

The Modern Law Of Corporate Groups: An Empirical Study Of Piercing The Corporate Veil In The Parent-Subsidiary Context, John H. Matheson

Articles

Today, massive corporations – both national and international – dominate financial and commercial activities, exercising enormous economic power. The standard organizational structure for these businesses has a parent corporation as the sole shareholder of multiple, separately incorporated operating subsidiaries (or layers of subsidiaries) in a corporate group. One particular application of the law of corporate groups entails dealing with the ramifications of subsidiary insolvency. Given the massive financial assets of many multinational parent corporations, actions to ignore the legal separateness of a corporate subsidiary of a parent company offer some of the biggest potential payoffs for claimants. In today's global …


Climate Change And Reassessing The "Right" Level Of Government: A Response To Bronin, Alexandra B. Klass Jan 2009

Climate Change And Reassessing The "Right" Level Of Government: A Response To Bronin, Alexandra B. Klass

Articles

Climate change has caused lawmakers, policymakers, and scholars to reassess the traditional role of federal, state, and local governments to regulate a broad range of environmental, energy, and land-use issues. While the problem of climate change would appear to be best addressed at the international, or at least the federal level, it has been local governments and states that have taken the first and most important steps in recognizing the problem and experimenting with different ways to address it. While some of these experiments show how the "lower" levels of government can have a significant and positive impact on national-level …


Beyond The Prisoners' Dilemma: Coordination, Game Theory, And Law, Richard H. Mcadams Jan 2009

Beyond The Prisoners' Dilemma: Coordination, Game Theory, And Law, Richard H. Mcadams

Articles

No abstract provided.


Is The Bankruptcy Code An Adequate Mechanism For Resolving The Distress Of Systemically Important Institutions?, Edward Morrison Jan 2009

Is The Bankruptcy Code An Adequate Mechanism For Resolving The Distress Of Systemically Important Institutions?, Edward Morrison

Articles

No abstract provided.


Reputation, Information And The Organization Of The Judiciary, Tom Ginsburg, Nuno Garoupa Jan 2009

Reputation, Information And The Organization Of The Judiciary, Tom Ginsburg, Nuno Garoupa

Articles

No abstract provided.