Making Our Congressional Elections More Competitive: A Proposal for a Limited Number of Statewide At Large Elections in Our More Populous States

Competitive elections for the House of Representatives are at an all time low. Law professors, political scientists and political analysts all along the political spectrum believe that the current situation not only makes for unaccountable legislators and an uneducated electorate but is also slowly poisoning our politics by making government needlessly ideological and partisan. Unfortunately, most of the proposed remedies call for reforms at the state level that in any event do not hold out the prospect of changing the current pattern in the future. This article proposes federal legislation to deal with this problem through the creation of statewide at large elections in our more populous states

Jury Trials in Japan

The Japanese are seeking to involve their citizens in the judicial system. They are also establishing a check on the power of the judiciary. Towards these goals, they have enacted legislation to create jury trials. These remarkable ambitions envision adopting a mixed-jury system, slated to take effect in 2009. In this mixed-jury system, judges and citizens participate together in the jury deliberation. This article first explores the differences between mixed-juries and the American jury system. It then suggests why the Japanese opted for a mixed-jury system. The article explores psychological theories surrounding collective judgment and how dominant individuals influence group dynamics. With these theories in place, the article assesses Japanese cultural attitudes and suggests that the objectives of meaningful citizen participation may be impeded in the jury deliberation process. Finally the article proposes specific procedural devices to ensure meaningful citizen participation

A Good Old Habit, or Just an Old One? Preferential Tax Treatment for Reorganizations

This article proposes to repeal the preferential tax treatment of certain merger and acquisition transactions known as reorganizations, and tax them like all other sales or exchanges. In the last 80 years this preference has been a cornerstone of our tax system. It is also one of the most stable rules in the tax code. Nevertheless, its normative justification is weak, and has never been rigorously debated in the legal literature. This article rejects the stated rationale for this rules - that such transactions trigger insufficient realization and therefore it is both unfair and impractical to currently tax them. It further demonstrates that the preferential tax treatment of reorganizations cannot be supported on efficiency grounds, applying the formerly unexploited (at least in the tax literature) wisdom available in the economic, business and corporate law literature. The latter conclusion is the primary contribution of this article

Sex, Trust, and Corporate Boards

This essay collects and interprets social science research on sex and trust and uses this work to shed new light on the emerging case for gender diversity on corporate boards. Specifically, the essay describes research findings that indicate (1) that men and women trust and are trustworthy on different bases and (2) the existence of a bias against women in corporate leadership positions. Based on this research and current legal scholarship on corporate governance, the essay asserts that gender diversity on corporate boards may be desirable but difficult to attain. The essay also calls for more targeted research on the links among sex, trusting behavior, trustworthiness, and corporate board membership

Discarded Deference: Judicial Independence in Informal Agency Guidance

In the past few years, the Supreme Court has resurrected an intermediate deference standard from the 1940s to be applied by courts in considering informal guidance issued by administrative agencies. The decision upon which the deference standard is based is a product of a political solution and not a comprehensive evaluation of how the New Deal agencies fit within traditional role of the courts as sole interpreters of the law. This 1940s decision has evolved such that deference to the views of administrative agencies has become a matter of judicial discretion, finding deference when the views of an agency parallel the views of a court and finding that deference is unnecessary when its views differ from those of an agency, permitting the substitution of its judgment for that of an agency with expertise in the area. Statutory schemes, however, have become increasingly complex with competing policy interests. When dealing with multifaceted, competing policy interests, administrative agencies can consider a particular issue in the context of the statutory scheme while courts consider a particular issue in the context of the precise issue originating in litigation. Courts have much less familiarity with complex statutory schemes with only infrequent ability to understand the intricacies of a specific aspect of that scheme as may arise through litigation. Agencies, on the other hand, are focused on the resolution of specific issues, but in the context of its impact on an entire statutory scheme because the responsibility of an agency is to administer and enforce a statutory scheme over which it contributes substantial expertise. Agencies make policy choices and courts make decisions. Those decisions should respect the policy choices considered by agencies in their capacity as experts in a specialized area of law. The manner in which those policy choices are respected is through a meaningful deference standard to agency interpretations

The Cambodian Amnesties: Beneficiaries and the Temporal Reach of Amnesties for Gross Violation of Human Rights

This article uses the two amnesties granted by the Cambodian government in 1994 and 1996 to explore two important legal issues raised by amnesties generally: 1) to whom is the amnesty granted; and 2) for how long will the amnesty last. The first issue addresses the beneficiary question – who is able to take advantage of an amnesty. The most interesting issue raised by the beneficiary question is whether an amnesty should be restricted to either superiors or subordinates. The article discusses this choice in the context of the Cambodian amnesties, other amnesties, and international law, and highlight the moral, legal, and practical advantages of restricting an amnesty to either superiors or subordinates. The second issue concerns the temporal reach of amnesties. As most recently illustrated by the repeal of the amnesty laws by the Argentinean Congress, the modern trend is to grant amnesties for human rights abuses during a transitional period, only to have those amnesties repealed (either legislatively or judicially) once peace and stability have been established. The article discuss statutes of limitation, immunities, and other temporal legal doctrines to better understand the legal significance of this emerging state practice. The article concludes with some suggestions for the tribunal that the UN and Cambodian government are establishing to address the gross violations of human rights committed by the Khmer Rouge. The statute establishing the tribunal leaves the question of whether to recognize the 1994 and 1996 amnesties to the tribunal judges. The article argues that those judges should look to the modern state practice concerning amnesties and neither categorically accept or reject those amnesties, but instead use them to further the goals of justice, truth, and reconciliation that underlie the creation of the tribunal

The Supreme Court, Stare Decisis, and the Role of Judicial Deference in Patent Claim Construction Appeals

The U.S. Court of Appeals for the Federal Circuit reviews de novo the rulings of district judges about patent claim construction. This state of affairs—surprising to many lawyers who are unfamiliar with patent law—is controversial because claim construction is one of the most important and vexing aspects of patent litigation, necessary to the vast majority of patent cases, and because it is probably responsible, at least in part, for the high reversal rate in patent cases. Commentary by both scholars and judges about the standard of review in patent cases has centered on whether the Federal Circuit should change it and review claim construction rulings with deference. This commentary relies on a flawed assumption. The Federal Circuit lacks the authority to review claim construction rulings deferentially, because de novo review is required by the Supreme Court’s decision in Markman v. Westview Instruments. In particular, the Supreme Court stated that claim construction rulings are entitled to stare decisis. This article argues that deference should be granted to the factual findings and acquired technical expertise underlying district courts’ claim construction rulings in at least some limited cases—but it will also explain why change must and should come from the Supreme Court

A Tax Crit Identity Crisis? Or Tax Expenditure Analysis, Deconstruction, and the Rethinking of a Collective Identity

Critical tax theory, much like its non-tax critical counterparts, has been consistently marginalized by mainstream tax academics. To date, tax crits have accepted and acquiesced in this marginalization. In this article, I question the idea that tax crits are outsiders as well as the notion that critical tax theory is a marginal form of tax policy literature. My primary purpose in questioning this conventional wisdom is to get tax crits to think critically about the collective identity of the critical tax movement. I question the outsider status of critical tax theory by essentially turning the mainstream into the marginal (or the marginal into the mainstream, depending upon your perspective). I accomplish this by reconceptualizing a quite mainstream tax concept - tax expenditure analysis - as an application of critical (and, more particularly, deconstructionist) techniques to the Internal Revenue Code. Once the mainstream (i.e., tax expenditure analysis) has been recast as the marginal (i.e., deconstructionist analysis), the distinction between the two essentially deconstructs itself, calling into question the justification for attaching significant weight to the distinction between the mainstream and the marginal. This opens the way for tax crits to think critically about their marginality and what role it should play in the collective identity of the critical tax movement