Law Commons^™

A Tax Response To The Executive Pay Problem, David I. Walker

Faculty Scholarship

Many observers believe that that the public company executive labor market is deficient and results in systematically excessive compensation. This Article accepts that premise and considers potential regulatory responses. Specifically, this Article proposes and analyzes a two-pronged tax response to the problem of excessive executive pay – the imposition of a surtax on executive pay in excess of a threshold combined with investor tax relief. These two prongs respond to the chief concerns raised by excessive executive pay. The imposition of a surtax would reduce the after-tax income of executives, which would directly address the unfairness of excessive pay and …

Young Again, Larry Yackle

Faculty Scholarship

This essay revisits an old problem in the law of federal courts: the source of the right of action in Ex parte Young. The core of the story underlying Young is familiar. Shareholders in railroad corporations filed suit in a federal circuit court, claiming that state established rail rates in Minnesota violated the Fourteenth Amendment and the (dormant) Commerce Clause. The circuit court issued a preliminary injunction barring adoption of the rates and prohibiting the defendants from attempting to enforce them. One of the defendants, Minnesota Attorney General Edward T. Young, nonetheless brought a state court mandamus action against the …

Plunging Into Endless Difficulties: Medicaid And Coercion In National Federation Of Independent Business V. Sebelius, Nicole Huberfeld, Elizabeth Weeks Leonard, Kevin Outterson

Faculty Scholarship

Of the four discrete questions before the Court in National Federation of Independent Business v. Sebelius, the Medicaid expansion held the greatest potential for destabilization from both a statutory and a constitutional perspective. As authors of an amicus brief supporting the Medicaid expansion, and scholars with expertise in health law who have been cited by the Court, we show in this article why NFIB is likely to fulfill that promise.

For the first time in its history, the Court held federal legislation based upon the spending power to be unconstitutionally coercive. Chief Justice Roberts’ plurality (joined for future voting purposes …

Government Disapproval Of Religion, Jay D. Wexler

Faculty Scholarship

The Supreme Court’s “Endorsement Test” for evaluating the constitutionality of government sponsored symbols, displays, and messages regarding religion is notoriously controversial and has engendered enormous scholarly attention. In addition to government “endorsement” of religion, however, the test also prohibits the government from sending a message of “disapproval” of religion. The disapproval side of the Endorsement Test has not been subject to almost any scholarly discussion, which is not surprising given that until recently the courts have had no reason to entertain, much less sustain, challenges to alleged government disapproval of religion. In the last few years, however, due to a …

Revisiting Mary Ann Glendon: Abortion, Divorce, Dependency, And Rights Talk In Western Law, Margaret F. Brining, Linda C. Mcclain

Faculty Scholarship

This essay revisits Mary Ann Glendon’s comparative law study, Abortion and Divorce in Western Law and her subsequent book, Rights Talk: The Impoverishment of Political Discourse. Glendon’s comparative study actually included a third topic: “forms of dependency which are connected with pregnancy, marriage, and child raising.” The topic of dependency has obvious relevance to consideration of intergenerational obligations and the interplay between family responsibility and societal responsibility for addressing dependency needs.

A central claim Glendon made in both books is that the U.S. legal tradition is “libertarian,” views individuals as “lone rights bearers,” and exalts the “right to be let …

Small Business Disaster Assistance, Peggy Maisel, Natalie Roman

Faculty Scholarship

When a disaster hits, it affects the entire community. A small business is especially vulnerable because it does not necessarily have the resources to respond to a disaster or to catastrophic damage. In fact, it is reported that approximately 25 percent of small businesses that close due to a disaster never reopen, and 40 percent of small businesses hit directly by a serious natural disaster do not recover. This is true regardless of what kind of disaster is involved, from a hurricane, a tornado, an earthquake, flooding, winter storms, or even civil unrest or terrorism.
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The Concept Of "Harm" In Copyright, Wendy J. Gordon

Faculty Scholarship

This essay examines the tort of copyright infringement. It argues that the ideas of "harm" and "fault" already play a role in the tort’s functioning, and that an ideally reformulated version of the tort should perhaps give a more significant role to “harm.” The essay therefore examines what “harm” can or should mean, reviewing four candidates for cognizable harm in copyright law (rivalry-based losses, foregone fees, loss of exclusivity, and subjective distress) and canvassing three philosophical conceptions of "harm" (counterfactual, historical-worsening, and noncomparative). The essay identifies the appropriateness vel non of employing, in the copyright context, each harm-candidate and each …

"Simple" Takes On The Supreme Court, Robert L. Tsai

Faculty Scholarship

This essay assesses black literature as a medium for working out popular understandings of America’s Constitution and laws. Starting in the 1940s, Langston Hughes’s fictional character, Jesse B. Semple, began appearing in the prominent black newspaper, the Chicago Defender. The figure affectionately known as “Simple” was undereducated, unsophisticated, and plain spoken - certainly to a fault according to prevailing standards of civility, race relations, and professional attainment. Butthese very traits, along with a gritty experience under Jim Crow, made him not only a sympathetic figure but also an armchair legal theorist. In a series of barroom conversations, Simple ably critiqued …

Qualified Conservation Restrictions: Recollections Of And Reflections On The Origins Of Section 170(H), Theodore S. Sims

Faculty Scholarship

It has been over thirty years since Congress added to the Internal Revenue Code section 170(h), which allows a deduction for contributions to charity of “qualified conservation restrictions,” commonly known as “conservation easements”. That provision was adopted over the objections of the Treasury, who had expressed reservations of both a conceptual and practical nature about the legislation, which the Treasury viewed as more than ordinarily vulnerable to abuse. I was invited to participate in this symposium, not because I have any expertise in working with these restrictions—I don’t—but to provide some perspective on what might have motivated the Treasury thirty-plus …

Distributions Of Industry Payments To Massachusetts Physicians, Aaron S. Kesselheim, Christopher Robertson, Kent Siri, Puneet Batra, Jessica M. Franklin

Faculty Scholarship

Some states have mandated systematic public disclosure of payments made by drug- and device-makers to health care practitioners. We used Massachusetts data to characterize the distribution of payment types and the variation among medical specialties.

The 30 months’ of data included 32,227 reported payments to 11,734 Massachusetts physicians, for a total of $76.7 million. The most common form of payment was food. Compensation for bona fide services was the payment type with the highest value.

We found that 25% of currently licensed Massachusetts physicians received at least one payment during the study period. Prevalence ranged by specialties from pediatricians (12%) …

Who Will Regulate Class Action Lawyers?, Nancy J. Moore

Faculty Scholarship

In 2003, I published an article entitled “Who Should Regulate Class Action Lawyers?”1 In that article, I defended the decision of the American Bar Association’s (“ABA”) Commission on Evaluation of the Model Rules of Professional Conduct (the “Ethics 2000 Commission”), for which I was Chief Reporter, not to propose any substantial amendments to the ABA Model Rules of Professional Conduct (“Model Rules”) concerning the ethical conduct of class action lawyers.

There are many ethical issues that confront class action lawyers. In my 2003 article, I focused on conflicts of interest—an issue that courts and commentators have had difficulty resolving and …

Don’T Let Go Of The Rope: Reducing Readmissions By Recognizing Hospitals’ Fiduciary Duties To Their Discharged Patients, Thomas L. Hafemeister, Joshua Hinckley Porter

American University Law Review

No abstract provided.

Gone With The Wind: Why Even Utility Patents Cannot Fence In Self-Replicating Technologies, Jessica Lynd

American University Law Review

No abstract provided.

The Tariff And The Patent: A New Intersection, Jimmie V. Reyna

American University Law Review

No abstract provided.

Testing The Limits Of Trade Law Rationality: The Gpx Case And Subsidies In Non-Market Economies, Elliot J. Feldman, John J. Burke

American University Law Review

No abstract provided.

2012 International Trade Law Decisions Of The Federal Circuit, John R. Magnus, Sheridan S. Mckinney

American University Law Review

No abstract provided.

Addressing The Elephant: The Potential Effects Of The Patent Cases Pilot Program And Leahy-Smith America Invents Act, Randall R. Rader

American University Law Review

No abstract provided.

Leap-Ahead Privacy As A Government Responsibility In The Digital Age, Ivan K. Fong, David G. Delaney

American University Law Review

No abstract provided.

Regulating Information Security In The Government Contracting Industry: Will The Rising Tide Lift All The Boats, Keir X. Bancroft

American University Law Review

No abstract provided.

Identity Crisis: Seeking A Unified Approach To Plaintiff Standing For Data Security Breaches Of Sensitive Personal Information, Miles L. Galbraith

American University Law Review

No abstract provided.

Reining In The Rogue Employee: The Fourth Circuit Limits Employee Liability Under The Cfaa, Danielle E. Sunberg

American University Law Review

No abstract provided.

Inequitable Conduct In Retrospective: Understanding Unclean Hands In Patent Remedies., T. Leigh Anenson, Gideon Mark

American University Law Review

No abstract provided.

Rebalancing Public And Private In The Law Of Mortgage Transfer, John Patrick Hunt, Richard; Stanton, Nancy Wallace

American University Law Review

No abstract provided.

Going For Gold: The Meaning Of Commercial Activity In The Foreign Sovereign Immunities Act In The Race For Buried Treasure In Sunken Shipwreck, Zhen Song

American University Law Review

No abstract provided.

In Memoriam: Paul R. Rice, Wayne Brazil, Eldone E. Fallon, Robert K. Goldman, Claudio Grossman, Geoffrey C. Hazard Jr., William M. Jannssen

American University Law Review

No abstract provided.

Duke-Ing Out Pattern Or Practice After Wal-Mart: The Eeoc As Fist, Angela D. Morrison

American University Law Review

No abstract provided.

Take Off Your Genes And Let The Doctor Have A Look: Why The Mayo And Myriad Decisions Have Invalidated Method Claims For Genetic Diagnostic Testing, Christopher Bergin

American University Law Review

No abstract provided.

The Stored Communications Act: An Old Statute For Modern Times., Melissa Medina

American University Law Review

No abstract provided.

The Illusory Eighth Amendment, John F. Stinneford

American University Law Review

No abstract provided.

Hacker's Delight: Law Firm Risk And Liability In The Cyber Age, Michael Mcnerney, Emilian Papadopoulos

American University Law Review

No abstract provided.