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2009

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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 …


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.


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 …


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 …


The Paternalistic Ideology Of Erisa And Unforgiving Courts: Restoring Balance Through A Grand Bargain, Edward A. Zelinsky Apr 2009

The Paternalistic Ideology Of Erisa And Unforgiving Courts: Restoring Balance Through A Grand Bargain, Edward A. Zelinsky

Articles

No abstract provided.


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.


So Much More Than A "Harmless Drudge": Samuel Johnson And His Dictionary, Joan Howland Jan 2009

So Much More Than A "Harmless Drudge": Samuel Johnson And His Dictionary, Joan Howland

Articles

No abstract provided.


Gender And The Rule Of Law In Transitional Societies, Fionnuala Ní Aoláin, Michael Hamilton Jan 2009

Gender And The Rule Of Law In Transitional Societies, Fionnuala Ní Aoláin, Michael Hamilton

Articles

This article examines a unique relationship—specifically, the connection between the rule of law, as it is imported and experienced in post-conflict/post-repression societies, and gender. We assert that some of the most gendered and problematic dimensions of rule of law discourse and practice can arise with intensity in post-conflict or post-repressive societies. In particular, we explore a fundamental contradiction. Transitional societies bring powerful and transformative moments to global attention.


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 …


Executive Compensation And The Optimal Penumbra Of Delaware Corporate Law, Claire Hill, Brett Mcdonnell Jan 2009

Executive Compensation And The Optimal Penumbra Of Delaware Corporate Law, Claire Hill, Brett Mcdonnell

Articles

Corporate law has done a very bad job on executive pay: executives have been rewarded for stellar performance that turned out to be anything but stellar, and shareholders have had no meaningful recourse. Indeed, there are many other such cases, where there is no breach of the fiduciary duties of care and loyalty, but the board's behavior nevertheless smacks of a classic agency problem known as structural bias. We argue that law on the books and as enforced is not well situated to deal with structural bias. What shows some promise is the marshaling of extra legal forces that effectively …


Professor Bainbridge And The Arrowian Moment: A Review Of The New Corporate Governance In Theory And Practice, Brett Mcdonnell Jan 2009

Professor Bainbridge And The Arrowian Moment: A Review Of The New Corporate Governance In Theory And Practice, Brett Mcdonnell

Articles

The New Corporate Governance in Theory and Practice, a new book by Stephen Bainbridge, pulls together the leading arguments for director primacy that Bainbridge has made in a series of articles. In his core argument, Bainbridge uses theoretical work by Kenneth Arrow to explain the attractions of the separation of ownership and control with a centralized hierarchy headed by a board of directors. Bainbridge posits that achieving an optimal tradeoff between authority and accountability is the central problem of corporate law. He uses a key passage from Arrow to argue that in making this tradeoff, lawmakers should always make a …


A Traditionalist Case For Gay Marriage, Dale Carpenter Jan 2009

A Traditionalist Case For Gay Marriage, Dale Carpenter

Articles

I will present here the outline of an argument for same-sex marriage within a particular school of conservatism. Let's call it traditionalism or Burkeanism, after the eighteenth century British statesman and writer Edmund Burke. It is important, I think, to note at the outset what I am not talking about. I am not talking about libertarianism. It is not economic conservatism. It is not neo-conservatism. It is not religious conservatism. And it is not compassionate conservatism.


Irb Guidance: The No Man's Land Of Tax Code Interpretation, Kristin Hickman Jan 2009

Irb Guidance: The No Man's Land Of Tax Code Interpretation, Kristin Hickman

Articles

This Symposium Essay compares current patterns and practices surrounding IRS utilization of IRB guidance (revenue rulings, revenue procedures, and notices) with administrative law doctrine concerning informal agency guidance documents. In administrative law jurisprudence, the distinction between legislative and interpretative rules (and thus whether the Administrative Procedure Act requires public notice and comment procedures) and the determination of whether Chevron or Skidmore provides the appropriate evaluative standard on judicial review both ultimately turn on whether the agency legal interpretation at issue carries the force and effect of law. The precise contours of the force of law concept are unclear, as is …


Ross And Olivecrona On Rights, Brian H. Bix Jan 2009

Ross And Olivecrona On Rights, Brian H. Bix

Articles

Scandinavian legal realism was a movement of the early and middle decades of the 20th century, which paralleled the American legal realist movement, while presenting a more skeptical challenge to legal reasoning and discourse. The present paper was written for a forthcoming Oxford University Press collection on the Scandinavian realists. The approach to jurisprudence of Scandinavian realists Alf Ross and Karl Olivecrona was simultaneously simple and radical: they wanted to rid our thinking about law of all the mystifying references to abstract concepts and metaphysical entities. This paper offers a critical overview of Ross's and Olivecrona's views on legal rights, …


Staying Alive: Public Interest Law In Contemporary Latin America, Stephen Meili Jan 2009

Staying Alive: Public Interest Law In Contemporary Latin America, Stephen Meili

Articles

This paper explores the current state of public interest lawyering in three Latin American countries: Argentina, Brazil and Chile. Based on a series of open-ended interviews with lawyers, judges and social movement activists, it compares public interest lawyering in these countries now with how it was practiced when the author interviewed some of the same individuals in the early to mid 1990s. Its analysis is set within the context of important geopolitical and socio-legal phenomena: the current global economic crisis and the judicialization of politics and constitutionalization of rights that has swept across the region over the past two decades. …


The Administration Of Justice And Human Rights, David Weissbrodt Jan 2009

The Administration Of Justice And Human Rights, David Weissbrodt

Articles

This article discusses the place of international human rights standards - as elaborated in global and regional treaties, other instruments, and authoritative interpretations - in the advancement of the administration of justice. The administration of justice includes the norms, institutions, and frameworks by which states seek to achieve fairness and efficiency in dispensing criminal, administrative, and civil justice. The United Nations, regional organisations, and other international structures have codified a substantial framework of fair trial and other administration of justice standards, which have been accepted, albeit not always followed, by most nations and which have begun to be used in …


Equitable Prescription Drug Coverage: Preventing Sex Discrimination In Employer-Provided Health Plans, Stephen F. Befort, Elizabeth C. Borer Jan 2009

Equitable Prescription Drug Coverage: Preventing Sex Discrimination In Employer-Provided Health Plans, Stephen F. Befort, Elizabeth C. Borer

Articles

Nearly half of large, employer-sponsored group health plans in the United States do not cover prescription contraceptives used by women. This exclusion contributes to unintended pregnancies, higher out-of-pocket expenses, and adverse social consequences. The federal courts currently are split on whether this exclusion violates Title VII as amended by the Pregnancy Discrimination Act (PDA). In a recent decision that is of first impression at the circuit court level, the Eighth Circuit ruled in In re Union Pacific Railroad Employment Practices Litigation that the lack of contraception coverage in an employee health insurance plan that covered Rogaine and Viagra for men …


Teaching The Rule Of Law, Robert Stein Jan 2009

Teaching The Rule Of Law, Robert Stein

Articles

We have heard throughout the day of the enormous amount of rule of law work going on all over the world. This primarily began in the early nineties after the fall of the Berlin Wall and the collapse of the Soviet Union.


Empirical Legal Studies Before 1940: A Bibliographic Essay, Herbert M. Kritzer Jan 2009

Empirical Legal Studies Before 1940: A Bibliographic Essay, Herbert M. Kritzer

Articles

The modern empirical legal studies movement has well-known antecedents in the law and society and law and economics traditions of the latter half of the 20th century. Less well known is the body of empirical research on legal phenomena from the period prior to World War II. This paper is an extensive bibliographic essay that surveys the English language empirical legal research from approximately 1940 and earlier. The essay is arranged around the themes in the research: criminal justice, civil justice (general studies of civil litigation, auto accident litigation and compensation, divorce, small claims, jurisdiction and procedure, civil juries), debt …