Essay The ‘Hidden’ Tax Cost of Executive Compensation by Kobi Kastiel & Noam Noked on May 12, 2018 Introduction The sweeping tax reform enacted in December 2017 will significantly increase the tax cost of executive compensation in publicly held corporations where the compensation for each of the top five executives exceeds $1 million. Nonetheless, it is unlikely that these corporations will reduce the executive compensation to offset the increased tax cost, which will… Volume 70 (2017-2018)
Essay Punishing Poverty California’s Unconstitutional Bail System by Christine S. Scott-Hayward & Sarah Ottone on April 24, 2018 Last year, an article in The Guardian highlighted the disparities inherent in California’s pretrial detention system. Reporter Sam Levin compared the cases of Tiffany Li, accused of murder for hire, who was released under house arrest after satisfying the $35 million bail set in her case, and Joseph Warren, who at the time was in custody… Volume 70 (2017-2018)
Essay Kill Quill, Keep the Dormant Commerce Clause History's Lessons on Congressional Control of State Taxation by Brian Galle on March 9, 2018 Introduction The world of internet commerce was shaken to its foundations in January this year, when the Supreme Court granted certiorari in South Dakota v. Wayfair, Inc., in effect agreeing to reconsider its landmark holding in Quill Corp. v. North Dakota. For more than twenty-five years, Quill has barred states from imposing tax-collection obligations on retailers that… Volume 70 (2017-2018)
Essay Itemized Deductions in a High Standard Deduction World by Emily Cauble on February 22, 2018 New tax legislation enacted in December 2017 exacerbates the extent to which various itemized deductions, such as the charitable contribution deduction and the home mortgage interest deduction, disproportionately benefit high income individuals. This essay develops this critique and concludes by suggesting paths for reform that should be considered by a future Congress. Volume 70 (2017-2018)
Essay Is the Federal Judiciary Independent of Congress? by Evan C. Zoldan on February 14, 2018 Can Congress command a federal court to rule in favor of a particular party in a pending case? The answer to this seemingly simple question is unsettled. The Constitution permits Congress to enact rules of law that courts must follow; and it permits the courts to decide cases pending before them. Constitutional conflict arises when… Volume 70 (2017-2018)
Essay The Costs of Aggregating Administrative Claims by Shannon M. Grammel & Joshua C. Macey on January 3, 2018 Introduction Aggregation has emerged in the past few years as a critical tool by which agencies can quickly resolve groups of claims that would otherwise languish for years in bureaucratic limbo. The idea is simple: Consolidating many similar claims in a single proceeding would help agencies process claims more quickly, efficiently, and fairly. But aggregation… Volume 70 (2017-2018)
Essay The Faulty Frequency Hypothesis Difficulties in Operationalizing Ordinary Meaning Through Corpus Linguistics by Ethan J. Herenstein on December 20, 2017 Introduction Promising to inject empirical rigor into the enterprise of statutory interpretation, corpus linguistics has, over the past couple years, taken the legal academy by storm. A product of linguistics departments, corpus linguistics is an empirical approach to the study of language through the use of large, electronic, and searchable databases of text called corpora.… Volume 70 (2017-2018)
Essay Blockchain’s Big Hurdle by Riley T. Svikhart on November 30, 2017 Blockchain technology can maintain accurate chains of title to securities and other legal instruments in a reliable electronic form. As private industries begin to recognize the cost-saving and risk-reducing potential of this technology, state legislatures are responding. Arizona’s H.B. 2417 is a prototypical state solution. In essence, the law requires parties to treat blockchain-secured records,… Volume 70 (2017-2018)
Essay Leidos and the Roberts Court’s Improvident Securities Law Docket by Matthew C. Turk & Karen E. Woody on November 28, 2017 For its October 2017 term, the U.S. Supreme Court took up a noteworthy securities law case, Leidos, Inc. v. Indiana Public Retirement System. The legal question presented in Leidos was whether a failure to comply with a regulation issued by the Securities and Exchange Commission (SEC), Item 303 of Regulation S-K (Item 303), can be grounds for a… Volume 70 (2017-2018)
Essay Confederate Statute Removal by Aneil Kovvali on October 28, 2017 Certain state governments have adopted statutes that are designed to prevent city governments from eliminating memorials to Confederate forces and leaders. Critics of these controversial statutes generally focus on the moral issue of preserving statues honoring white supremacy. This Essay highlights a different set of concerns: These statutes suppress the speech of cities while compelling… Volume 70 (2017-2018)
Essay The Words Under the Words by Patrick Barry on August 31, 2017 The words lawyers choose can change the decisions people make. Psychologists call the mechanics of this change “framing.” They’ve found, for example, that more people will decide to have a surgery if they are told that the “survival rate is 90%” than if they are told that the “mortality rate is 10%”—even though a survival… Volume 70 (2017-2018)
Essay Government Hacking to Light the Dark Web Risks to International Relations and International Law? by Orin S. Kerr & Sean D. Murphy on July 24, 2017 Introduction Government hacking is everywhere. Hackers working for the Russian government broke into computers run by the Democratic National Committee and stole e-mails relating to the 2016 Presidential election. Hackers traced to the Chinese government broke into U.S. government computers and copied personnel files of over 22 million employees. North Korean hackers intruded into Sony… Volume 70 (2017-2018)
Response Continuities, Ruptures, and Causation in the History of American Legal Culture by Amalia D. Kessler on July 13, 2017 Henry Vanderlyn, an antebellum lawyer from the small town of Oxford, New York, whom I discuss in Inventing American Exceptionalism, kept a daily diary for a thirty-year period and was in the habit of regaling visitors with selected readings from his collected thoughts. Confident that his visitors eagerly attended to his every word, Vanderlyn never… Volume 70 (2017-2018)
Book Review Exploring the Origins of America’s ‘Adversarial’ Legal Culture by Edward A. Purcell, Jr. on July 13, 2017 Introduction Amalia D. Kessler’s Inventing American Exceptionalism is a tour de force of historical imagination, analysis, and synthesis. Asking fresh questions that open new vistas of understanding, her book illustrates some of the complex ways that social factors shape legal thinking on matters ranging from arcane procedural technicalities to fundamental institutional assumptions. Changing social and… Volume 70 (2017-2018)
Book Review The Lawyer/Judge as Republican Hero by Mark Tushnet on July 13, 2017 Introduction Inventing American Exceptionalism tells a two-sided story. On one side is the replacement of the distinctive inquisitorial processes of equity courts with the adversarial ones of common-law courts. The equity courts relied heavily on taking testimony in writing and in secret, freezing the record so that parties could not shape their evidence in light… Volume 70 (2017-2018)
Book Review Contextualizing Inventing American Exceptionalism by Richard White on July 13, 2017 Amalia Kessler’s Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877 is a stunning legal history that is even richer than the author may have intended. I would not have thought that an analysis of the oral adversarial tradition in American law could provide the larger insights that her book does. This is… Volume 70 (2017-2018)
Book Review Introduction Book Review Symposium on Inventing American Exceptionalism by Bernadette Meyler on July 13, 2017 How, when, and why did Americans become convinced both that our system of civil justice is adversarial through and through and that adversarialism is normatively desirable? Professor Amalia Kessler’s highly engaging and dauntingly erudite new book, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877, locates the answer to these questions in a… Volume 70 (2017-2018)
Essay Transformative Use in Software by Clark D. Asay on May 22, 2017 Introduction Fair use is copyright law’s most important defense against claims of copyright infringement. Major corporations depend on it to pursue a variety of technological innovations; universities rely on it for a number of educational purposes; and innovative parties frequently resort to it in creating works that build upon the creativity of others. In short,… Volume 70 (2017-2018)
Essay A Better Way to Revive Glass-Steagall by John Crawford on May 22, 2017 Introduction The financial crisis of 2007-2008 repeatedly forced regulators to face terrible choices between risking catastrophic contagion by letting particular firms or markets fail, and intervening to bail them out. One explanation of why these dilemmas arose was that financial firms were “too big to fail.” Nearly a decade after the onset of the crisis,… Volume 70 (2017-2018)