Law Commons^™

An Arm's Length Solution To The Shareholder Loan Tax Puzzle, Wayne M. Gazur

Publications

No abstract provided.

Alienated: A Reworking Of The Racialization Thesis After September 11, Ming H. Chen

Publications

This article revises widespread application of the racialization thesis to Arabs, Muslims, and South Asians following September 11. It suggests in its place an “alienation thesis” to describe the formation of an alien identity for those perceived and treated as noncitizens. This thesis draws on Asian American and critical race scholarship to re-interpret sociological understandings of the post-September 11 response to Arabs, Muslims, and South Asians. The article concludes that shifting conceptions of this phenomenon is critical to reforming “alienating” practices that function not only to cause harm to their intended targets, but also to distort the legal requirements of …

What's Love Got To Do With It?: Contemporary Lessons On Lawyerly Advocacy From The Preacher Martin Luther King, Jr., Deborah J. Cantrell

Publications

Lawyers have long been inspired by the advocacy work of Martin Luther King, Jr. From his work on the Montgomery bus boycott, to lunch counter sit-ins, to his March on Washington, Dr. King demonstrated skilled advocacy that resulted in important legal advancements. While lawyers give primacy to Dr. King as an advocate, Dr. King gave primacy to his work as a preacher. This article challenges the legal profession to consider the ways in which Dr. King, the preacher, may be as inspirational and instructive as Dr. King, the civil rights icon. Just as Dr. King's religious values were not abstracted …

Lessons From Mazibuko: Persistent Inequality And The Commons, Daria Roithmayr

Publications

No abstract provided.

Racial Cartels, Daria Roithmayr

Publications

This Article argues that we can better understand the dynamic of historical racial exclusion if we describe it as the anti-competitive work of "racial cartels." We can define racial cartels to include a range of all-White groups-homeowners' associations, school districts, trade unions, real estate boards and political parties who gained significant social, economic and political profit from excluding on the basis of race. Far from operating on the basis of irrational animus, racial cartels actually derived significant profit from racial exclusion. By creating racially segmented housing markets, for example, exclusive White homeowners' associations enjoyed higher property values that depended not …

Coercing Voluntariness, Wadie E. Said

Publications

No abstract provided.

The Terrorist Informant, Wadie E. Said

Publications

A man sets himself on fire in front of the White House in a dispute with the Federal Bureau of Investigation (FBI). He has been working as an informant for the FBI in a high-profile terrorism prosecution and is unhappy with the $100,000 he has been paid so far. He has also been recently convicted of bank fraud. As a result, the government declines to call him as a witness, given the damage his actions have on his credibility and trustworthiness. This incident underscores the difficulty inherent in relying on paid informants to drive a prosecution, where material considerations such …

A Look At Human Trafficking With Professor Kathleen C. Kim, Karen Skinner

Publications

No abstract provided.

Error Correction, Chad M. Oldfather

Faculty Publications

Under most accounts of appellate review, error correction stands with law declaration as the core purposes of the process. Yet while a vast amount of scholarship addresses the process of judicial law creation, error correction has received comparatively little attention. Indeed, there appears to be a consensus that it is straightforward and settled, and that the lack of attention is warranted.

One goal of this article is to challenge this understanding. To be sure, the architecture of our judiciary reflects a worldview in which legal questions have correct answers and courts' role is simply to find them. On that understanding …

Can An Arbitrator Be Given The Authority To Decide Whether An Agreement To Arbitrate Is Enforceable?, Jay E. Grenig

Faculty Publications

No abstract provided.

Moving Beyond The Clamor For "Hedge Fund Regulation": A Reconsideration Of "Client" Under The Investment Advisers Act Of 1940, Anita K. Krug

Articles

This Article argues that, from both theoretical and pragmatic perspectives, a better approach would be for law to regard private fund investors as clients of the managers of those funds for all purposes under the investment advisory regulatory regime. In making these arguments, it dissects the doctrinal and historical underpinnings and sources of the current doctrine--legislative history and case law, in particular, but also SEC interpretations and rule changes. In light of the policy considerations-- including investor protection--that gave rise to the Advisers Act, the growth of the investment advisory industry and private funds' role in it, and lessons learned …

Book Review Of Universities And Copyright Collecting Societies, Benjamin J. Keele

Library Staff Publications

No abstract provided.

Regulating Charities In The Twenty-First Century: An Institutional Choice Analysis, Lloyd Hitoshi Mayer, Brendan M. Wilson

Journal Articles

For more than fifty years scholars, practitioners, and government officials have debated whether the federal government, the state governments, or the charitable sector itself can best ensure that charity leaders fulfill their fiduciary duties. The dramatic growth of this sector, recent highly publicized governance scandals, and a push in Congress and the IRS for more federal involvement in this area have now brought this issue to a head. This article lays a foundation for resolving the dispute by developing an institutional choice framework for considering and comparing the various available options. Applying that framework, the article concludes that the best …

Fairness And The Willingness To Accept Plea Bargain Offers, Avishalom Tor

Journal Articles

In contrast with the common assumption in the plea bargaining literature, we show fairness-related concerns systematically impact defendants' preferences and judgments. In the domain of preference, innocents are less willing to accept plea offers (WTAP) than guilty defendants and all defendants reject otherwise attractive offers that appear comparatively unfair. We also show that defendants who are uncertain of their culpability exhibit egocentrically biased judgments and reject plea offers as if they were innocent. The article concludes by briefly discussing the normative implications of these findings.

Disclosures About Disclosure, Lloyd Hitoshi Mayer

Journal Articles

An often overlooked aspect of the Supreme Court’s recent decision in Citizens United v. FEC is the sharply contrasting factual accounts regarding disclosure of independent election-related spending. For eight of the Justices, such disclosure is constitutionally defensible because it enables voters to make informed decisions. For Justice Thomas, however, such disclosure is constitutionally suspect because of its potential to result in retaliation and related chilling of First Amendment speech in the form of financial contributions. The continuing importance of these contrasting narratives can be found not only in the pending Supreme Court case of Doe v. Reed, in which the …

Rethinking Tax Priorities: Marriage Neutrality, Children, And Contemporary Families, James M. Puckett

Faculty Scholarship

Tax scholarship has long struggled with whether married taxpayers should be taxed differently from unmarried taxpayers. Currently, married taxpayers are subject to different tax rates than unmarried taxpayers, and may file a joint tax return. A married couple may pay a higher or lower amount of tax than an unmarried couple with the same total income, and a single person generally pays more tax on a given income than a married couple with a single earner with the same income. These outcomes are difficult to reconcile with a commitment to income tax progressivity, which in theory requires that higher incomes …

A Primer On Protecting Tax Losses From A Section 382 Ownership Change, Mark C. Van Deusen

William & Mary Annual Tax Conference

No abstract provided.

Another Blow To Tribal Sovereignty: A Look At Cross-Jurisdictional Law-Enforcement Agreements Between Indian Tribes And Local Communities, Andrew G. Hill

American Indian Law Review

No abstract provided.

Wind-Energy Ventures In Indian Country: Fashioning A Functional Problem, Crystal D. Masterson

American Indian Law Review

No abstract provided.

Values In Transition: The Chiricahua Apache From 1886-1914, John W. Ragsdale Jr.

American Indian Law Review

Law confirms but seldom determines the course of a society. Values and beliefs, instead, are the true polestars, incrementally implemented by the laws, customs, and policies. The Chiricahua Apache, a tribal society of hunters, gatherers, and raiders in the mountains and deserts of the Southwest, were squeezed between the growing populations and economies of the United States and Mexico. Raiding brought response, reprisal, and ultimately confinement at the loathsome San Carlos Reservation. Though most Chiricahua submitted to the beginnings of assimilation, a number of the hardiest and least malleable did not. Periodic breakouts, wild raids through New Mexico and Arizona, …

The Conflict Between State Tests Of Tribal Entity Immunity And The Congressional Policy Of Indian Self-Determination, Aaron F.W. Meek

American Indian Law Review

No abstract provided.

When Canons Go To War In Indian Country, Guess Who Wins? Barrett V. United States: Tax Canons And Canons Of Construction In The Federal Taxation Of American Indians, John Lentz

American Indian Law Review

No abstract provided.

The Ncaa Rules Adoption, Interpretation, Enforcement, And Infractions Processes: The Laws That Regulate Them And The Nature Of Court Review, Josephine (Jo) R. Potuto

Vanderbilt Journal of Entertainment & Technology Law

This article takes a comprehensive look at how the NCAA is organized, describes the NCAA committee structure, and explains how the NCAA in its multitude of roles does its work. The article focuses particularly on the NCAA by law interpretation process and the policies, procedures, and scope of authority of the enforcement, infractions, and student-athlete reinstatement processes. In its description of the division of responsibility among enforcement, infractions and student-athlete reinstatement, the article emphasizes the independence of each. The article then assesses the functions and structure of the NCAA in light of the preogatives of a private, multi-state association and …

No Confusion Here: Proposing A New Paradigm For The Litigation Of Keyword Advertising Trademark Infringement Cases, Rachel R. Friedman

Vanderbilt Journal of Entertainment & Technology Law

Internet search engines such as Google and Yahoo! earn a majority of their profit from selling advertisements to appear next to search results. Google's coveted advertising space, however, causes nightmares for trademark holders when their trademarks are auctioned by Google to competitors as keywords to trigger the competitors' advertisements when the trademark is used as a search term. Advertisers strategically bid on trademarks of competitors to ensure that their ads appear whenever the trademark is used as a search term, instead of the advertisements of the trademark holder. For example, Nike could bid on the trademark for "Adidas," with the …

Guerrilla Radio: Has The Time Come For A Full Performance Right In Sound Recordings?, Lauren E. Kilgore

Vanderbilt Journal of Entertainment & Technology Law

Musicians and songwriters occupy a unique place in society as purveyors of composition and expression that impart an intangible benefit to society. Understanding the value of "Science and useful Arts," the Founders provided Constitutional protection for individuals spending time, money, and energy pursuing creative endeavors. Music defines generations and pivotal moments in history, and has rightfully taken its place at the forefront of human expression. When music began reaching the masses in the early twentieth century, both record labels and radio, even in its infancy, helped propel artists to the national spotlight. Johnny Cash, Ray Charles, and Pearl Jam all …

An "Absence Of Meaningful Appellate Review": Juries And Patent Obviousness, Theresa Weisenberger

Vanderbilt Journal of Entertainment & Technology Law

The rise in the number of patent infringement trials heard by juries has brought criticisms of the jury's expansive role to the forefront of patent law commentary. Under current Federal Circuit practice, the jury is permitted to deliver a verdict on patent obviousness. Especially in light of the 2007 Supreme Court decision KSR International Co. v. Teleflex, Inc., the role of the jury in obviousness determinations has come under particular scrutiny. This Note examines the effect of the jury's expansive role in obviousness determinations on appellate review of these verdicts. It begins by examining the two conflicting views of the …

Transformative Use And Cognizable Harm, Thomas F. Cotter

Vanderbilt Journal of Entertainment & Technology Law

In recent years, the question of whether the unauthorized use of a copyrighted work is "transformative" has become a dominant consideration in determining whether the use is fair or unfair. As critics have pointed out, however, this emphasis on transformative use is both underinclusive and indeterminate of the range of uses that fall within the scope of the fair use privilege. Worse yet, efforts to define or apply the concept of transformative use, or to distinguish fair transformative uses from transformative uses that infringe the copyright owner's exclusive right to prepare derivative works, often serve only to illuminate the concept's …

Copyright, Derivative Works, And The Economics Of Complements, Glynn S. Lunney, Jr.

Vanderbilt Journal of Entertainment & Technology Law

From an economic perspective, copyright is irrational. In defining the scope of a copyright owner's exclusive rights, it treats situations that have similar economic consequences differently, as infringement in one case and not in the other, and situations that have radically different economic consequences similarly. This essay explores such area in which copyright exhibits economic irrationality: Copyright's treatment of complements. Where a lower price on a substitute reduces demand for the original, a lower price on a complement increases it. So defined, copyright addresses whether a copyright owner will control three different types of complements: (i) complementary products, such as …

A Preliminary First Amendment Analysis Of Legislation Treating News Aggregation As Copyright Infringement, Alfred C. Yen

Vanderbilt Journal of Entertainment & Technology Law

The newspaper industry has recently experienced economic difficulty. Profits have declined because fewer people read printed versions of newspapers, preferring instead to get their news through so-called "news aggregators" who compile newspaper headlines and provide links to stories posted on newspaper websites. This harms newspaper revenue because news aggregators collect advertising revenue that newspapers used to enjoy.

Some have responded to this problem by advocating the use of copyright to give newspapers the ability to control the use of their stories and headlines by news aggregators. This proposal is controversial, for news aggregators often do not commit copyright infringement. Accordingly, …

A Generation Of Racketeers? Eliminating Civil Rico Liability For Copyright Infringement, Julie L. Ross

Vanderbilt Journal of Entertainment & Technology Law

This article addresses questions raised in recent years by the increasingly severe penalties for copyright infringement, focusing on potential civil RICO liability as illustrated by a hypothetical peer-to-peer file-sharing example. Because civil litigation has been, by a wide margin, the favored means for pursuing copyright violators, the criminal copyright infringement statute remains largely untested, and the few cases that address its provisions offer conflicting interpretations. Now that RICO penalties are available in civil copyright infringement cases, courts faced with resolving the ambiguities in the application of the criminal copyright infringement provisions will need to reconcile divergent policies. To effectuate its …