Law Commons^™

Designing Foreign Tax Credit Rules In China: The Case Of Foreign Loss Limitations, Wei Cui

All Faculty Publications

Over the last few years, China’s large trade surplus against other countries, as well as its high domestic savings rate even relative to its high investment rate, have resulted in a very substantial foreign currency reserve that puts the country in the position of a significant capital exporter. The huge amount of foreign currency assets held by the Chinese government— near $1.9 trillion at the end of 2008 — and a breathtaking series of acquisitions made by Chinese firms overseas are now salient items in international business reporting and public discussion. China’s new posture as an exporter of capital has …

Pragmatic Selective Waiver: Re-Aligning Corporate Executives' Personal Interests With Those Of The Corporation Amidst Government Investigations, Erin M. Carter

Vanderbilt Law Review

In the corporate setting, government investigators increasingly ask corporations to waive the attorney-client privilege as part of the "cooperation" necessary to receive incentives. In practice, however, these cooperation incentives have led to what has become known as a "culture of waiver," where waiver of the privilege in the face of investigation has become virtually essential. One way courts have sought to diminish the negative externalities of waiver is through the doctrine of selective waiver. Selective waiver allows the corporation to waive the attorney-client privilege, but only to the government agency during the course of the investigation, while still retaining the …

Attorneys, Accountants, And Bankers, Oh My! Primary Liability For Secondary Actors In The Wake Of "Stoneridge", Robert J. Grubb

Vanderbilt Law Review

Mervin "Buddy" Schwartz, Jr., embodied the American Dream. A Pennsylvania resident, Schwartz began working for Hershey Foods in 1961 as a maintenance mechanic.' He eventually became a member of the local union's executive board. A hard worker providing for his family, Schwartz had a thirteen-year perfect attendance record and often worked overtime. He even managed to attend night classes and obtained an associate's degree in Bible studies.

Lacking any financial training, Buddy Schwartz relied on the retirement plan and 401k5 Hershey provided for his retirement. Because he contributed the maximum allowable amount out of each paycheck to his 401k, he …

Le Développement De L’Évaluation De La Menace De La Criminalité Organisée Et L’Architecure De Sécurité Intérieure (Development Of The Organised Crime Threat Assessment (Octa) And Internal Security Architecture), Benjamin J. Goold

All Faculty Publications

Cette note propose une vue d’ensemble de l’approche européenne des questions de sécurité, de lutte contre le terrorisme et contre la criminalité organisée. Elle aborde plus particulièrement le rôle de la Stratégie européenne de sécurité (SES) dans l’élaboration des politiques et des dispositions institutionnelles, ainsi que l’influence de l’OCTA (Évaluation de la menace de la criminalité organisée). cette note recommande qu’un certain nombre de mesures soient prises pour recentrer et rationaliser les structures existantes attachées aux questions de sécurité et de lutte contre le terrorisme et le crime organisé. Le nombre d’agences directement ou indirectement impliquées dans le recueil d’informations, …

The Gap In Canadian Police Powers: Canada Needs 'Public Order Policing' Legislation, W. Wesley Pue, Robert Diab

All Faculty Publications

The authors identify a gap in Canadian policing law. Police have neither common law nor statutory authority to undertake the sorts of public order policing measures that are thought to be essential to securing large public events, such as Vancouver's 2010 Olympics. The paper argues for the adoption of a Public Order Policing Act designed to confer the necessary powers and ensure their operation in a manner that respects constitutional law and fundamental civil liberties. Revised and published as W. Wesley Pue & Robert Diab “The Gap in Canadian Police Powers: Canada Needs 'Public Order Policing' Legislation” (2010) 28 Windsor …

Introduction To Lawyers In Canadian History, W. Wesley Pue

All Faculty Publications

This paper "frames" the study of lawyers in Canadian history against major interpretations of the legal profession and legal professionalism including the historical self-understandings of organized legal professions in the common law world, market-control theorists, institutional, and cultural history approaches. The article serves as the introduction to a new book on The Promise And Perils Of Law: Lawyers In Canadian History, which includes essays on the history of legal education, the practice of law, Quebec's legal distinctiveness, constitutionalism and the rule of law, and issues in race, gender, and diversity.

Cowboy Jurists & The Making Of Legal Professionalism, W. Wesley Pue

All Faculty Publications

This paper identifies the origins of modern Canadian legal professionalism in the prairie west during the early twentieth century, arguing for the importance of human agency and emphasizing contingency where others assert trans-historical processes. Lawyers combined agendas which were explicitly moral and reforming with a profound restructuring of their profession. Their efforts to reform the curriculum of formal legal education was part of a cultural project, but so too was their desire to attain self-regulation, monopoly, professional independence, and plenary disciplinary powers. The substantive findings documented here direct our attention to questions of cultural agency and structural revolution that are …

Economic Rehabilitation: Understanding The Growth In Consumer Proposals Under Canadian Insolvency Legislation, Janis P. Sarra

All Faculty Publications

Economic rehabilitation is the notion underlying Canada’s Bankruptcy and Insolvency Act (BIA), providing consumer debtors with an opportunity for a “fresh start” through the mechanism of bankruptcy or making a proposal to their creditors for payment of their debts on terms that allow them to rehabilitate their financial status. This article undertakes a comparison of consumer proposals and consumer bankruptcies, examining 5,773 individual insolvencies in the past two years, with a view to discerning choices by individual insolvent debtors of insolvency proceeding. It compares causes of financial distress, income levels, quantum of debt and the assets of those filing proposals …

Possibilities And Prospects: The Debate Over A Guaranteed Income, Margot Young, James P. Mulvale

All Faculty Publications

The idea of a guaranteed income has a long and respectable history in Canadian political and economic thought. Recently, in the face of both wide criticism of the Canadian income security system and growing recognition of the unacceptability of current poverty rates, there has been a resurgence in calls for implementation of a Canadian guaranteed income. But the idea is a controversial one; progressive activists, academics, and politicians disagree about the desirability and the practicality of a guaranteed income. This report: Traces the history of guaranteed income proposals in Canada; Catalogues both the most common reasons supporting advocacy of a …

Preserving The Independence Of Public Higher Education: An Examination Of State Constitutional Autonomy Provisions For Public Colleges And Universities, Neal H. Hutchens

Educational Policy Studies and Evaluation Faculty Publications

In American higher education, the need to make public colleges and universities responsive to the public interest is often in tension with the necessity of providing institutions with the requisite authority to manage their internal affairs. In seeking to strike a balance between acceptable state oversight versus the need to safeguard the authority of public colleges and universities to manage their own affairs, some states rely on constitutional provisions to limit excessive state governmental intrusion. Specifically, these provisions vest constitutional authority in public higher education governing boards to direct the affairs of institutions or systems under their direction. In contrast …

Updating Data Protection: Part I -- Identifying The Objectives, Fred H. Cate

Articles by Maurer Faculty

No abstract provided.

Reclaiming International Law From Extraterritoriality, Austen L. Parrish

Articles by Maurer Faculty

A fierce debate ensues among leading international law theorists that implicates the role of national courts in solving global challenges. On the one side are scholars who are critical of international law and its institutions. These scholars, often referred to as Sovereigntists, see international law as a threat to democratic sovereignty. On the other side are scholars who support international law as a key means of promoting human and environmental rights, as well as global peace and stability. These scholars are the 'new' Internationalists because they see non-traditional, non-state actors as appropriately enforcing international law at the sub-state level. The …

Promise Of Confidentiality In Mediation: Practitioners' Perceptions, The, T. Noble Foster, Selden Prentice

Journal of Dispute Resolution

In response to these articles, we sought to determine the perceptions of mediation practitioners in our own region, the Seattle/King County area, regarding mediation confidentiality and privilege. This paper presents our finding and addresses the following: (1) the scope of confidentiality and privilege under Washington law; (2) recent Washington case law addressing evidence of mediation communications; (3) a review of Florida's recent legislation - significantly different from Washington law, and unique among state mediation statutes - which provides for sanctions in the event confidentiality is breached; and (4) the perceptions of mediators, attorneys, and judges from the greater Seattle area …

I Lost My Home, Don't Take My Voice: Ensuring The Voting Rights Of The Homeless Through Negotiated Rulemaking, Sarah Devlin

Journal of Dispute Resolution

"The right to vote, as the citizen's link to his laws as government, is protective of all fundamental rights as privileges." This right is often unexercised or taken for granted; but for hundreds of thousands of homeless citizens, voting is a right which is beyond reach. The U.S. Department of Housing and Urban Development estimated that on any given night in 2005, more than 754,000 Americans were without a traditional residence--living in emergency shelters, transitional housing, or on the streets. While many of those people are only temporarily homeless, many others are being disenfranchised by an electoral system that requires …

Future Of Mediation: A Sociological Perspective, The, Brian Jarrett

Journal of Dispute Resolution

Arguably, these sociological pressures are central to the future direction of the mediation field and, in the aggregate, provide a useful building block in the development of an emerging sociology of mediation-a development that could fill the theory-to-practice gap which currently bedevils the mediation field. Understanding sociological forces reminds us of the constraints within which mediators, as social actors, must work. More importantly, an awareness of these pressures is, conceivably, essential to the development of an autonomous and discernible profession that remains capable of welcoming a diversity of practitioners and their respective approaches. I summarize each of these pressures below …

Immunity And Justice For All: Has The Second Circuit Overextended The Doctrine Of Absolute Immunity By Applying It To Arbitration Witnesses, W. Monroe Bonnheim

Journal of Dispute Resolution

In Rolon v. Henneman, the Second Circuit Court of Appeals considered whether absolute immunity should apply to witnesses in an arbitration proceeding. The common law doctrine of absolute immunity from civil liability for judges has a long pedigree dating back to English courts. When the United States Supreme Court reaffirmed the doctrine after Congress passed 42 U.S.C. § 1983, the Court cautioned against extending the doctrine beyond judges. Since then, however, the doctrine has been extended to prosecutors and witnesses at public trials, and more recently, to arbitrators and arbitral institutions. Whether absolute immunity should be further extended to witnesses …

Expansion Of Arbitral Immunity: Is Absolute Immunity A Foregone Conclusion, The, Jenny Brown

Journal of Dispute Resolution

With the increased use of arbitration in recent years, the concept of judicial immunity has expanded its scope to include arbitrators. As a result, states are currently enacting their own legislation regarding arbitrator immunity and are looking for guidance in how to do so. In response, the National Conference of Commissioners on State Laws has drafted two model acts, referred to as the Uniform Arbitration Act and the Revised Uniform Arbitration Act for states to utilize in formulating their own arbitration laws. Currently the Uniform Arbitration Act has been adopted in thirteen states and is being considered in four other …

What's Fair Is Fair: Tribal Assertions Of Jurisdiction Over Arbitration Decisions, Matthew E. Terry

Journal of Dispute Resolution

While the modem trend is to provide tribes with a certain amount of latitude in some areas, the court in First Specialty Insurance Corp. v. Confederated Tribes of the Grand Ronde Community of Oregon was tasked with shoehorning the facts into the applicable precedent because the various doctrines defining the limits of tribal jurisdiction under the Federal Arbitration Act ("FAA") have not often been tested, as they were here. The district court's opinion followed the modem trend by upholding the Tribe's assertion of its court system's jurisdiction, yet the court did not establish a precedent that should trouble the notion …

African American Disproportionality In School Discipline: The Divide Between Best Evidence And Legal Remedy, Kevin D. Brown, Russell J. Skiba, Suzanne E. Eckes

Articles by Maurer Faculty

No abstract provided.

The Intellectual Foundations Of The Modern American Fiscal State, Ajay K. Mehrotra

Articles by Maurer Faculty

No abstract provided.

Interrogation And Silence: A Comparative Study, Craig M. Bradley

Articles by Maurer Faculty

This article examines interrogation practices in detail in three systems: the American, the English (and Welsh), and the Canadian while also discussing rules from various other countries. It considers when the Miranda-type warnings (required in all three systems) must be given and when suspects will be deemed to have waived their rights. This article further discusses how reliability and voluntariness of confession is assured. Finally, a particular emphasis is placed on the issue of when a suspect's silence during interrogation may be used against him in court. The article concludes that American courts have not done enough to ensure reliability …

Can A Subsequent Change In Law Void A Marriage That Was Valid At Its Inception? Considering The Legal Effect Of Proposition 8 On California's Existing Same-Sex Marriages, Lois A. Weithorn

UC Law Journal

On May 15, 2008, the California Supreme Court held that California's prohibition of same-sex marriage violated the equal protection and due process clauses of the California Constitution. One month later, pursuant to that court's authority, county clerks throughout California began certifying marriages of same-sex couples. Opponents of same-sex marriage placed a voter initiative- ultimately known as Proposition 8-on the November 4, 2008 ballot. Proposition 8 passed with 52.3% of the vote, thereby placing in the California Constitution the language, "Only marriage between a man and a woman is valid or recognized in California." In response to its passage, California officials …

Heller, Citizenship, And The Right To Serve In The Military, Elizabeth L. Hillman

UC Law Journal

District of Columbia v. Heller could prove a turning point not in the law governing the right to keep and bear arms, but governing the right to serve in the military. Heller's reasoning, notwithstanding the Court's efforts to constrain its analysis from reaching a right to serve, should lead to a reconsideration of military service as a broadly-held and long-recognized constitutional right. Because of the political meaning of military service and the changes that have altered the role and make-up of the military in the United States, the Second Amendment ought to be read, in the wake of Heller, as …

Supply Restrictions At The Margins Of Heller And The Abortion Analogue: Stenberg Principles, Assault Weapons, And The Attitudinalist Critique, Nicholas J. Johnson

UC Law Journal

Through a consideration of the assault weapons question, this Article engages the criticism that District of Columbia v. Heller provides an insufficient standard for resolving many questions that emerge under the newly-clarified Second Amendment. After arguing that assault weapons might enjoy threshold protection under Heller's common-use test, the Article shows how the principles grounding the Supreme Court's abortion jurisprudence are especially suited for resolving aspects of the question that Heller does not explicitly answer. Particularly, this Article shows how constitutional protection of the best methodology for preserving life or health-advanced by the liberal wing of the Court in abortion jurisprudence-is …

The Procedural Annihilation Of Structural Rights, Steven G. Gey

UC Law Journal

For several years, the Supreme Court has been systematically erecting obstacles to the litigation of constitutional claims in federal court. Although this trend toward limiting federal court authority affects all types of constitutional claims, including those involving traditional individual constitutional rights, the most serious effect is on what can be called "structural rights." The term "structural rights" describes constitutional provisions that are designed to protect the basic nature of democratic government. These provisions constrain the power of the elected branches of government, preserve citizen autonomy, and otherwise ensure that political winners in the democratic process do not use their power …

Business Tax: China's Quasi-Vat, Wei Cui

All Faculty Publications

On 1 January 2009, new VAT rules entered into force in China. Under these rules, all registered businesses are entitled to recover VAT on the purchase of capital assets other than immovable property. The Chinese VAT system does however not yet cover services and transactions concerning immovable property, which are still subject to the all-stage, cumulative business tax. In this article, the author explains that the process of gradual transformation of the business tax into a VAT has started and that the current business tax should already be seen as a quasi-VAT.

Making People Illegal: What Globalization Means For Migration And Law, Catherine Dauvergne

All Faculty Publications

This book examines the relationship between illegal migration and globalization. Under the pressures of globalizing forces, migration law is transformed into the last bastion of sovereignty. This explains the worldwide crackdown on extra-legal migration and informs the shape this crackdown is taking. It also means that migration law reflects key facets of globalization and addresses the central debates of globalization theory. This book looks at various migration law settings, asserting that differing but related globalization effects are discernible at each location. The ‘core samples’ interrogated in the book are drawn from refugee law, illegal labor migration, human trafficking, security issues …

Canadian Bijuralism And The Concept Of An Acquisition Of Property In The Federal Income Tax Act, David G. Duff

All Faculty Publications

The acquisition of property plays an important role in the federal Income Tax Act (ITA), determining eligibility for a number of tax benefits, including entitlement to capital cost allowance, investment tax credits, and the deductibility of interest expenses incurred in respect of eligible property. In spite of its importance, the concept of an acquisition of property is not defined in the ITA, and it has been subject to divergent interpretations in the common law and the civil law. The author traces the sources of law informing the meaning of an acquisition of property in the common law and the civil …

Book Review Of Fighting For Political Freedom: Comparative Studies Of The Legal Complex And Political Liberalism, Robert Russo

All Faculty Publications

No abstract provided.

An Empirical Analysis Of Lateral Lawyer Trends From 2000 To 2007: The Emerging Equilibrium For Corporate Law Firms, William D. Henderson, Leonard Bierman

Articles by Maurer Faculty

No abstract provided.