Law Commons^™

Taxation, Craig D. Bell

University of Richmond Law Review

This article reviews significant recent developments in the laws affecting Virginia taxation. Each section covers legislative changes, judicial decisions, and selected opinions or pronouncements from the Virginia Department of Taxation (the "Tax Department") and the Virginia Attorney General over the past year.

Health Care Law, Sean P. Byrne, Garrett Hooe

University of Richmond Law Review

No abstract provided.

The Presumption Of Resulting Trust: A New Era?, Man Yip

Research Collection Yong Pung How School Of Law

This entry is written in anticipation of the forthcoming appeal against the recent High Court judgment in Mak Saw Ching v Yam Hui Min, Barbara Rebecca [2014] SGHC 212. The appeal shall provide a further opportunity for the Court of Appeal to clarify and refine the law on the presumption of resulting trust after the important decision of Chan Yuen Lan v See Fong Mun [2014] 3 SLR 1048 released earlier this year. However, the High Court judgment is not to be missed as well. The decision highlights interesting issues for the appellate bench’s consideration, and could be the forerunner …

The Challenge Of Seeing Justice Done In Removal Proceedings, Jason A. Cade

Scholarly Works

Prosecutorial discretion is a critical part of the administration of immigration law. This Article considers the work and responsibilities of the Immigration and Customs Enforcement (ICE) trial attorneys, who thus far have not attracted significant scholarly attention, despite playing a large role in the ground-level implementation of immigration law and policy. The Article makes three main contributions. First, I consider whether ICE attorneys have a duty to help ensure that the removal system achieves justice, rather than indiscriminately seek removal in every case and by any means necessary. As I demonstrate, trial attorneys have concrete obligations derived from statutory provisions, …

Calling Them As He Sees Them: The Disappearance Of Originalism In Justice Thomas's Opinions On Race, Joel K. Goldstein

Maryland Law Review

During his first two decades on the Court, Justice Clarence Thomas has been associated with originalism and is often viewed as its leading judicial proponent. Justice Thomas has linked originalism with the effort to limit judicial discretion and to promote judicial impartiality. In cases dealing with many constitutional provisions, Justice Thomas has shown his commitment to originalism by often writing solitary concurrences and dissents advocating an originalist analysis of a problem. Yet in constitutional cases dealing with race, Justice Thomas routinely abandons originalism and embraces the sort of constitutional arguments based on morality or consequentialism that he often discounts. These …

Death, Desuetude, And Original Meaning, John F. Stinneford

William & Mary Law Review

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to …

Determining Extraterritoriality, Franklin A. Gevurtz

William & Mary Law Review

This Article addresses an underexplored but critical aspect of the presumption against extraterritoriality. The presumption against extraterritoriality—which the United States Supreme Court has increasingly invoked in recent years—calls for courts to presume that Congress does not intend U.S. statutes to govern events outside the United States. The most difficult issue presented by the presumption arises when relevant events occur both inside and outside the United States, as in the classic example, if a shooter on one side of the border kills a victim on the other, or if, as in the leading case, false statements originating inside the United States …

A Process Failure Theory Of Statutory Interpretation, Mark Seidenfeld

William & Mary Law Review

Despite all that has been written about the choice between purposivist, intentionalist, and textualist approaches to statutory interpretation, to date the literature has not provided a justification for the common judicial practice of relying on intent-based inquiries in some cases and disavowing those approaches for textualism in others. This Article fills that void and, in doing so, lays out a new “legislative process failure” theory of statutory interpretation that has the potential to move the debate beyond a simple choice between textual and intent-based interpretation. This Article argues that Congress and the courts comprise different linguistic communities when they interpret …

Real Estate Documents Turn Green, Richard J. Sobelsohn

Faculty Scholarship

No abstract provided.

Bramble Bush Revisited: Llewellyn, The Great Depression, And The First Law School Crisis, 1929-1939, Anders Walker

Journal of Legal Education

No abstract provided.

Reaching Backward And Stretching Forward: Teaching For Transfer In Law School Clinics, Shaun Archer, James P. Eyster, James J. Kelly Jr., Tonya Kowalski

Journal of Legal Education

No abstract provided.

Book Review Of Representing Justice: Invention, Controversy, And Rights In The City-States, And Democratic Courtrooms, By Judith Resnik And Dennis Curtis, Amy Widman

Journal of Legal Education

No abstract provided.

Review Essay--Bilingual Education In The United States: An Idea Whose Time Has Come, S.I. Strong

Journal of Legal Education

No abstract provided.

The President’S Plan Respecting The Supreme Court, Ignatius M. Wilkinson

Fordham Law Review

    To commemorate our founding in 1914, the Board of Editors has selected six influential pieces published by the Law Review over the past 100 years and will republish one piece in each issue.

    The second piece selected by the Board is the testimony of Ignatius M. Wilkinson, the fourth and longest-serving dean of Fordham Law School (1923–1954), to the Judicial Committee of the U.S. Senate. Speaking to the Committee on the Judiciary, Wilkinson criticized the Franklin D. Roosevelt Judiciary Reorganization Bill of 1937 because it would “undermine the independence of the courts” and “shake[] the foundations of our constitutional structure.” …

Foreword: Chevron At 30: Looking Back And Looking Forward, Peter M. Shane, Christopher J. Walker

Fordham Law Review

No abstract provided.

What 30 Years Of Chevron Teach Us About The Rest Of Statutory Interpretation , Abbe R. Gluck

Fordham Law Review

No abstract provided.

Federalism At Step Zero, Miriam Seifter

Fordham Law Review

No abstract provided.

Chevron’S Generality Principles, Emily Hammond

Fordham Law Review

No abstract provided.

Chevron Inside The Regulatory State: An Empirical Assessment, Christopher J. Walker

Fordham Law Review

No abstract provided.

Chevron At The Roberts Court: Still Failing After All These Years, Jack M. Beermann

Fordham Law Review

No abstract provided.

Step Zero After City Of Arlington, Thomas W. Merrill

Fordham Law Review

No abstract provided.

Inherit The Cloud: The Role Of Private Contracts In Distributing Or Deleting Digital Assets At Death, Natalie M. Banta

Fordham Law Review

    We live in a world permeated with technology. Through our online accounts we write emails, we store pictures, videos, and documents, we pay bills and conduct financial transactions, we buy digital books and music, and we manage loyalty programs. Digital assets have quickly replaced physical letters, pictures, books, compact discs, and documents stored in filing cabinets and shoeboxes. The emergence of digital assets raises pressing questions regarding the treatment of digital assets at an account holder’s death. Unlike digital assets’ physical counterparts, an account holder does not control the ultimate fate of digital assets. Instead, digital assets are controlled by …

Not Just For Products Liability: Applying The Economic Loss Rule Beyond Its Origins, Danielle Sawaya

Fordham Law Review

    Most litigants, if given the chance, prefer to assert tort theories to recover their economic losses, rather than rely on the remedies provided under contract law. This is primarily because plaintiffs have the potential to recover more damages under tort law than contract law. However, most courts have adopted a doctrine known as the economic loss rule to bar plaintiffs from asserting certain tort theories to recover for their economic loss. Although the economic loss rule may seem like an easy way to maintain the boundary between tort law and contract law, confusion abounds when courts attempt to determine the …

Strange Bedfellows: The Federal Constitution, Out-Of-State Nongrantor Accumulation Trusts, And The Complete Avoidance Of State Income Taxation, Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

With the maximum rate of federal income tax at 39.6 percent, the Medicare surtax on investment income of 3.8 percent, and some state income tax rates exceeding 9 percent, taxpayers in the highest brackets have been seeking to develop strategies to lessen the tax burden. One strategy that has been receiving increased attention is the use of a highly specialized trust known as the NING, a Nevada incomplete gift nongrantor trust, which eliminates state income taxation of investment income altogether without generating additional federal income or transfer taxes. A major obstacle standing in the way of accomplishing this objective, however, …

Delaware Law As Lingua Franca: Theory And Evidence, Brian Broughman, Jesse A. Fried, Darian Ibrahim

Vanderbilt Law School Faculty Publications

Why would a firm incorporate in Delaware rather than in its home state? Prior explanations have focused on the inherent features of Delaware corporate law, as well as the positive network externalities created by so many other firms domiciling in Delaware. We offer an additional explanation: a firm may choose Delaware simply because its law is nationally known and thus can serve as a “lingua franca” for in-state and out-of-state investors. Analyzing the incorporation decisions of 1,850 VC-backed startups, we find evidence consistent with this lingua-franca explanation. Indeed, the lingua-franca effect appears to be more important than other factors that …

Symposium: The Role Of Federal Law In Private Wealth Transfer, Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

Increasingly, federal law impacts court decisions involving private wealth transfer. Increasingly, federal law is the central consideration in premortem and postmortem planning for private wealth transfer. Despite this, until recently, little scholarly attention has been paid to this phenomenon; the assumption regarding the centrality of state law, quoted above, having gone largely unquestioned. But now that the "sleeping giant" has awakened, the role that federal law plays in private wealth transfer requires serious and comprehensive academic consideration.

The Permit Power Revisited, J.B. Ruhl, Eric Biber

Vanderbilt Law School Faculty Publications

Two decades ago, Professor Richard Epstein fired a shot at the administrative state that has gone largely unanswered in legal scholarship. His target was the permit power, under which legislatures prohibit a specified activity by statute and delegate administrative agencies discretionary power to authorize the activity under terms the agency mandates in a regulatory permit. Describing the permit power, accurately, as an enormous power in the state, Epstein bemoaned that it had received scant attention in the academic literature. He sought to fill that gap. Centered on his premise that the permit power represents a complete inversion of the proper …

Response: Who Should Be Providing Mortgage Credit To American Households?, David Reiss

Cornell Law Faculty Publications

Who should be providing mortgage credit to American households? Given that the residential mortgage market is a ten-trillion-dollar one, the answer we come up with had better be right, or we may suffer another brutal financial crisis sooner than we would like. Indeed, the stakes are as high as they were in the Great Depression when the foundation of our current system was first laid down. Unfortunately, the housing finance experts of the 1930s seemed to have a greater clarity of purpose when designing their housing finance system. Part of the problem today is that debates over the housing finance …

Nudging Users Towards Cross-Border Mediation: Is It Really About Harmonised Enforcement Regulation?, Nadja Alexander

Research Collection Yong Pung How School Of Law

In this paper the author challenges her audience to think in different ways about creating the shift needed to make cross-border mediation practice a reality rather than rhetoric. Within Asia, Hong Kong, Singapore and other centres are positioning themselves as regional leaders in cross-border mediation. Statistically though, there is not an enormous amount of cross-border mediation going on. Despite the apparent advantages of mediation and the international regulatory activity outlined above, cross-border commercial mediation practice has been slow to develop. At dispute resolution conferences and other get-togethers, mediators and other ADR advocates ask themselves, “Why”? While there is little empirical …

Delaware Law As Lingua Franca: Theory And Evidence, Brian Broughman, Jesse M. Fried, Darian Ibrahim

Faculty Publications

Why would a firm incorporate in Delaware rather than in its home state? Prior explanations have focused on the inherent features of Delaware corporate law and on the positive network externalities created by so many other firms domiciling in Delaware. We offer an additional explanation: a firm may choose Delaware simply because its law is nationally known and thus can serve as a lingua franca for in-state and out-of-state investors. Analyzing the incorporation decisions of 1,850 venture-capitalist-backed start-ups, we find evidence consistent with this lingua franca explanation. Indeed, the lingua franca effect appears to be more important than other factors …