Category: Past Issues

Tucker Terhufen. Google saved over $3 billion dollars in corporate income tax expenses between 2007 and 2010 through a transfer tax strategy known as the “Double Irish with a Dutch Sandwich.” But Google isn’t the only offender, most companies with intellectual property engage in this strategy, and it is estimated that it costs the U.S. Treasury up to $90 billion a year. So how do they get away with it? In brief, the key to the strategy is exploiting flexibility in determining the value of a company’s intellectual property. Being intangible, there are many ways to value intellectual property; companies utilizing the Double Irish strategy claim that their IP is not very valuable for income tax purposes. This seems counterintuitive. Companies invest millions of dollars acquiring, litigating, and defending their…

Carlton J. Patrick. The business of the law is to influence human behavior. To do this effectively, lawmakers must make assumptions about human psychology and how people think. While the behavioral sciences dedicate their entire enterprises to investigating these questions, the law, even at its best, incorporates knowledge from those disciplines in a fragmentary and unsystematic fashion. At its worst, the legal system overlooks or ignores advances in other fields and instead relies on inherited intuitions of behavior that can be both naïve and difficult to enumerate with precision. Nowhere is this phenomenon more evident than in the law’s longstanding struggle with emotions. Frequently relying on outdated folk psychology, the legal system’s attempts to codify, incorporate, explain, and otherwise reckon with emotions have produced many of the law’s most nebulous…

Patricia A. McCoy. Historically, U.S. financial regulation has normally been procyclical, with federal regulators and Congress relaxing oversight during bull markets and cracking down once financial crises hit. After 2008, the wisdom of this approach came under attack. Critics argued that procyclical regulation left financial institutions undercapitalized and unable to withstand panics. Other critics asserted that economic downturns could be mitigated and even averted if regulators took steps to puncture asset bubbles. The concept of countercyclical regulation responds to both of these critiques. This new approach posits that financial regulation would be more effective if financial regulation clamped down during financial expansions and lightened up during economic slumps, when banks and other financial services firms are struggling financially and typically are at their most risk- averse. One objective of countercyclical…

Kelly Kennedy. “From water does all life begin.” Frank Herbert’s novel Dune, published in 1965, underscored the importance of the fundamental element of life: water. Writing of a world where water is scarce—highly valued by all—he emphasized conservation and the use of technology to help people create, retain, and reclaim clean water. Fast-forward fifty years and the technology is now here—technology that can help us conserve and purify our water. But our waters are still polluted. While a variety of factors play a role, one of the leading causes is agricultural pollution. The technology today, however, can help to prevent agricultural pollution. It offers a way toward a world with cleaner water. Equipped with the new technology and utilizing old-fashioned farming techniques, farmers can prevent the run-off coming off their…

James A. Henderson, Jr. Given that the American legal system supports markets that make technological advancement economically feasible and thus attractive to investors, it may be said that our law generally encourages the development of innovative, albeit sometimes unavoidably dangerous, technology. Specific examples abound. Thus, the rule of limited shareholder liability encourages innovative risk-taking. And some specialized areas appear even more self- consciously to promote innovation; in this regard, intellectual property law deserves high marks for making the effort, whatever may be said for its bottom-line results. By contrast tort law, whether or not its central objective is deterrence, carries the potential for discouraging creative technological innovation. Indeed, observers have criticized the American system of products liability on precisely that basis and have argued that it contributes significantly to placing…

Patty Ferguson-Bohnee. In 2006, Navajo elder Agnes Laughter attempted to vote as she had for over thirty years. Not only was she turned away from the polls, she was berated for not having identification (“ID”) as required by Arizona’s new voter ID law. Ms. Laughter was discouraged and distraught. She did not have a photo ID nor did she have any documents to satisfy Arizona’s new voter ID law. She attempted several times to obtain a state ID from the Arizona Department of Transportation, but she was denied because she was born in a hogan and lacked an Arizona birth certificate. While Arizona law allows voters to present two forms of nonphoto ID, Ms. Laughter also lacked documents to satisfy the alternative—she did not drive, she did not own a…

Miguel F. P. de Figueiredo. We jail too many people and it costs too much. Incarceration is not only expensive, it also is prone to “hardening” and negative peer learning effects that may increase recidivism. With local, state, and federal budgets at a breaking point, politicians and regulators are increasingly considering alternative approaches to preventing crime. Yet, they face a problem. Studies show that incapacitation is a successful way of reducing crime, yet most scholars and policymakers think that the only way to incapacitate is to incarcerate. This study demonstrates that this assumption is problematic, arguing that we should understand incapacitation along a continuum, with incarceration at one end. This understanding is important because it allows policy makers to think about new ways to avoid the significant social and fiscal…

Nathan Andrews. Corporations represent a strategic compromise by which ownership is separated from management. This structure has numerous legal and economic benefits; however, the corporate structure is especially adept in diversifying ownership. Shares, a type of security which are also often referred to as stock or common stock, represent a portion of ownership of a corporation. Shares of publicly traded corporations are available for purchase on stock exchanges throughout the world allowing virtually any entity to purchase ownership in a corporation. Typically, shareholders receive various rights through share ownership, including the right to vote for directors, who represent the diversified ownership in major decisions. A corporation’s management generally consists of a chief executive officer and various other officers, as well as intermediate and lower level management who do not necessarily…

Timothy Zick. Some regulations of professional-client communications raise important, but so far largely overlooked, constitutional concerns. Three recent examples of professional speech regulation: restrictions on physician inquiries regarding firearms, “reparative” therapy bans, and compelled abortion disclosures, highlight an important intersection between professional speech and constitutional rights. In each of the three examples, state regulations implicate a non-expressive constitutional right; the right to bear arms, equality, and abortion. States are actively, sometimes even aggressively, using their licensing authority to limit and structure conversations between professionals and their clients regarding constitutional rights. The author contends that government regulation of “professional rights speech” should be subjected to heightened First Amendment scrutiny. Many professionals perform critical, but under- appreciated, functions with regard to the recognition and effective exercise of constitutional rights. Moreover, the author…

Sasha Andersen. This article uses The Office as a platform to explore the history of Title VII and illustrate the puzzling rationale for why homosexuals fall through the cracks of Title VII and are not protected from workplace harassment. This article analyzes the way Title VII would apply to Oscar’s situation and shows how bringing a seemingly clear-cut case of sexual harassment would be unsuccessful despite common-sense perceptions of the law. In exposing the way Title VII law is inconsistent with common sense, this article has two objectives. First, it probes the history of Title VII jurisprudence and demonstrates that homosexuals have no recourse under Title VII—that is, unless they act “gay” enough or the harasser is actually homosexual. Understanding this reality exposes a more problematic logic in Title VII…