The Value Of The Restatement Of Employment Law, Based On 50-State Empirical Analyses And The Importance Of Clarifying Disputed Issues – But With Caveats About The Restatement’S Imperfect Work Product,
2017
University of Colorado Law School
The Value Of The Restatement Of Employment Law, Based On 50-State Empirical Analyses And The Importance Of Clarifying Disputed Issues – But With Caveats About The Restatement’S Imperfect Work Product, Scott A. Moss
Publications
No abstract provided.
Value Hypocrisy And Policy Sincerity: A Food Law Case Study,
2017
Elisabeth Haub School of Law at Pace University
Value Hypocrisy And Policy Sincerity: A Food Law Case Study, Joshua Ulan Galperin
Elisabeth Haub School of Law Faculty Publications
t is tempting to say that in 2017 there is a unique problem of hypocrisy in politics, where words and behaviors are so often in opposition. In fact, hypocrisy is nothing new. A robust legal and psychological literature on the importance of procedural justice demonstrates a longstanding concern with developing more just governing processes. One of the important features of this scholarship is that it does not focus only on the consequences of policymaking, in which behaviors, but not words, are relevant. Instead, it respects the intrinsic importance of fair process, lending credence not only to votes but also to …
Agency Law And The New Economy,
2017
University of Colorado Law School
Agency Law And The New Economy, Mark J. Loewenstein
Publications
This article considers the status of workers in the "new economy," defined as the sharing economy (e.g., Uber, Lyft) and the on-demand economy. The latter refers to the extensive and growing use of staffing companies by established businesses in many different industries to provide all or a portion of their workforce. Workers in both the sharing economy and the on-demand economy are, generally speaking, at a disadvantage in comparison to traditional employees. Uber drivers, for example, are typically considered independent contractors, not employees, and therefore are not covered under federal and state laws that protect or provide benefits to employees. …
Putting The Substance Back Into The Economic Substance Doctrine,
2017
Brooklyn Law School
Putting The Substance Back Into The Economic Substance Doctrine, Nicholas Giordano
Brooklyn Journal of Corporate, Financial & Commercial Law
The foreign tax credit, which saves U.S. taxpayers from paying both foreign and domestic income taxes on the same income, is critical to facilitating global commerce. However, as savvy taxpayers discover increasingly complicated ways to abuse the foreign tax credit regime through the structuring of business transactions, courts have become increasingly skeptical of the validity of those transactions. Using the economic substance doctrine, a common law doctrine codified in 2010 at I.R.C. § 7701(o), courts will disallow tax benefits stemming from a transaction that is not profitable absent its tax benefits, and which the taxpayer had no incentive to undertake …
Directv, Inc. V. Imburgia And The Continued Ascendance Of Federal Common Law: Class-Action Waivers And Mandatory Arbitration Under The Federal Arbitration Act,
2017
Roger Williams University School of Law
Directv, Inc. V. Imburgia And The Continued Ascendance Of Federal Common Law: Class-Action Waivers And Mandatory Arbitration Under The Federal Arbitration Act, Michael J. Yelnosky
Roger Williams University Law Review
No abstract provided.
Franchise Tax Board Of California V. Hyatt: A Split Court, Full Faith And Credit, And Federal Common Law,
2017
Roger Williams University School of Law
Franchise Tax Board Of California V. Hyatt: A Split Court, Full Faith And Credit, And Federal Common Law, Jonathan M. Gutoff
Roger Williams University Law Review
No abstract provided.
Franchise Tax Board Of California V. Hyatt: A Split Court, Full Faith And Credit, And Federal Common Law,
2017
Roger Williams University School of Law
Franchise Tax Board Of California V. Hyatt: A Split Court, Full Faith And Credit, And Federal Common Law, Jonathan M. Gutoff
Law Faculty Scholarship
No abstract provided.
Directv, Inc. V. Imburgia And The Continued Ascendance Of Federal Common Law: Class-Action Waivers And Mandatory Arbitration Under The Federal Arbitration Act,
2017
Roger Williams University School of Law
Directv, Inc. V. Imburgia And The Continued Ascendance Of Federal Common Law: Class-Action Waivers And Mandatory Arbitration Under The Federal Arbitration Act, Michael Yelnosky
Law Faculty Scholarship
No abstract provided.
The Spirit Of Common Law And The Reform Of Canon Law,
2016
St. John's University School of Law
The Spirit Of Common Law And The Reform Of Canon Law, Ladislas M. Orsy, S.J.
The Catholic Lawyer
No abstract provided.
A Chance For Positive Change: Exploring The Legal Hurdles Putative Fathers Face In The 21st Century,
2016
Florant Law Group, LLC
A Chance For Positive Change: Exploring The Legal Hurdles Putative Fathers Face In The 21st Century, Shamala Florant
The Scholar: St. Mary's Law Review on Race and Social Justice
Abstract forthcoming.
On The Place Of Judge-Made Law In A Government Of Laws,
2016
University at Buffalo School of Law
On The Place Of Judge-Made Law In A Government Of Laws, Matthew J. Steilen
Journal Articles
This essay explores a constitutional account of the elevation of the judiciary in American states following the Revolution. The core of the account is a connection between two fundamental concepts in Anglo-American constitutional thinking, discretion and a government of laws. In the periods examined here, arbitrary discretion tended to be associated with alien power and heteronomy, while bounded discretion was associated with self-rule. The formal, solemn, forensic, and public character of proceedings in courts of law suggested to some that judge-made law (a product of judicial discretion under these proceedings) did not express simply the will of the judge or …
Resolving The Divided Patent Infringement Dilemma,
2016
Terry College of Business, University of Georgia
Resolving The Divided Patent Infringement Dilemma, Nathanial Grow
University of Michigan Journal of Law Reform
This Article considers cases of divided patent infringement: those in which two or more parties collectively perform all the steps of a patented claim, but where no single party acting alone has completed the entire patented invention. Despite the increasing frequency with which such cases appear to be arising, courts have struggled to equitably resolve these lawsuits under the constraints of the existing statutory framework because of the competing policy concerns they present. On the one hand, any standard that holds two or more parties strictly liable whenever their combined actions infringe a patent risks imposing liability on countless seemingly …
The Democratic First Amendment,
2016
University of California, Davis School of Law
The Democratic First Amendment, Ashutosh Bhagwat
Northwestern University Law Review
Over the past several decades, the Supreme Court and most First Amendment scholars have taken the position that the primary reason why the First Amendment protects freedom of speech is to advance democratic self-governance. In this Article, I will argue that this position, while surely correct insofar as it goes, is also radically incomplete. The fundamental problem is that the Court and, until recently, scholars have focused exclusively on the Religion Clauses and the Free Speech Clause. The rest of the First Amendment—the Press, Assembly, and Petition Clauses—might as well not exist. The topic of this Article is the five …
Multifactoral Free Speech,
2016
Loyola University Chicago School of Law
Multifactoral Free Speech, Alexander Tsesis
Northwestern University Law Review
This Article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social issues arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the …
Labor Law - Common Market - Public Policy Regarding Personal Conduct May Act As A Restraint On The Free Movement Of Labor In The European Economic Community,
2016
University of Georgia School of Law
Labor Law - Common Market - Public Policy Regarding Personal Conduct May Act As A Restraint On The Free Movement Of Labor In The European Economic Community, William A. O'Dell
Georgia Journal of International & Comparative Law
No abstract provided.
Reconsidering The History Of Open Courts In The Digital Age,
2016
Seattle University School of Law
Reconsidering The History Of Open Courts In The Digital Age, Rory B. O'Sullivan, Catherine Connell
Seattle University Law Review
Article I, Section 10 of the Constitution of the State of Washington guarantees, “Justice in all cases shall be administered openly, and without unnecessary delay.” The Washington State Supreme Court has interpreted this clause to guarantee the public a right to attend legal proceedings and to access court documents separate and apart from the rights of the litigants themselves. Based on this interpretation, the court has struck down laws protecting the identity of both juvenile victims of sexual assault and individuals subject to involuntary commitment hearings. Its interpretation has also compromised the privacy rights of litigants wrongly named in legal …
“Please Stop Telling Her To Leave.” Where Is The Money: Reclaiming Economic Power To Address Domestic Violence,
2016
Seattle University School of Law
“Please Stop Telling Her To Leave.” Where Is The Money: Reclaiming Economic Power To Address Domestic Violence, Margo Lindauer
Seattle University Law Review
In this Article, I argue that economic dependence is a critical factor in violence prevention. For many victims of domestic violence, the economic entanglement with an abusive partner is too strong to sever contact without another source of economic support. This Article is a thought experiment in economic justice; it asks the question: is there a way to provide outside economic support for a victim of violence fleeing a battering partner? In this Article, I examine existing systems such as Social Security, unemployment assistance, work-readiness programs, crowd sourcing, and others to evaluate how these sources could provide emergency economic support …
If It (Ain’T) Broke, Don’T Fix It: Twombly, Iqbal, Rule 84, And The Forms,
2016
Seattle University School of Law
If It (Ain’T) Broke, Don’T Fix It: Twombly, Iqbal, Rule 84, And The Forms, Justin Olson
Seattle University Law Review
The past decade has not been kind to the Federal Rules of Civil Procedure (the Rules). From the growth of summary judgment as a mechanism to let judges instead of juries determine facts, to the love–hate relationship with class actions, judicial interpretations of the Rules have revealed a trend toward complicating the ability of plaintiffs to find redress for their claims. Nowhere is this more apparent than in the shifting standards of pleading requirements under Rule 8. Much has been written by academics and practitioners alike regarding the ripples caused by Twombly and Iqbal. Although the Court would like to …
Foreign Nation Judgments - If State Law Provides For The Enforceability Of Foreign Judgments, The Judgment Is Enforceable Without Determination Of Whether The Arbitration Award On Which It Is Based Is Independently Enforceable Under The Convention On The Recognition And Enforcement Of Foreign Arbitral Awards,
2016
University of Georgia School of Law
Foreign Nation Judgments - If State Law Provides For The Enforceability Of Foreign Judgments, The Judgment Is Enforceable Without Determination Of Whether The Arbitration Award On Which It Is Based Is Independently Enforceable Under The Convention On The Recognition And Enforcement Of Foreign Arbitral Awards, John W. Kindt
Georgia Journal of International & Comparative Law
No abstract provided.
A New Take On An Old Problem: Employee Misclassification In The Modern Gig-Economy,
2016
University of Michigan Law School
A New Take On An Old Problem: Employee Misclassification In The Modern Gig-Economy, Jennifer Pinsof
Michigan Telecommunications & Technology Law Review
For decades, U.S. labor and employment law has used a binary employment classification system, labeling workers as either employees or independent contractors. Employees are granted a variety of legal protections, while independent contractors are not. However, the explosion of the gig-economy—which connects consumers with underutilized resources—has produced a growing number of workers who do not seem to fit into either category. Though far from traditional employees, gig-workers bear little resemblance to independent contractors. Forced to choose, however, most gig-economy companies label their workers as independent contractors, depriving them of many basic worker-protections. Gig-workers have turned to the courts, hoping to …
