Survey & Legal Analysis of Select Global Trademark Anti-counterfeiting Statutes & Evidence of Prosecutions

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Is It Time for Federal Regulation of the Tax Preparer Industry? New Insights from Legal and Empirical Developments

The tax preparer industry is unusual in that it involves the interpretation of an intricate and complicated tax code, but imposes no minimum requirements of competency because the industry is largely unregulated. A study by the Government Accountability Office (GAO) indicated that unregulated tax preparers commit significantly higher error rates and, based in part on that study’s findings, the Internal Revenue Service (IRS) attempted to regulate the tax preparer industry nationwide under the Registered Tax Return Preparer (RTRP) regime. This RTRP program was invalidated in Loving v. IRS, however, leaving the industry largely unregulated, except in the small minority of states that have enacted tax preparer regulations

The Nagging in Our Ears and Original Public Meaning

The debate over how to understand the meaning of legal texts once pitted intentionalism against a variety of other views united by the conviction that a legal enactment takes on a meaning not reducible to anybody’s mental state. Both these approaches are supported by powerful intuitions. This Article does not try to referee between them. Instead, it takes aim at a third set of views— theories of “original public meaning”—that in recent decades has upended the traditional debate and has now become gospel for the new majority on the United States Supreme Court

Illusory Policy Implications of Behavioral Law & Economics

Behavioral law and economics has achieved notable policy influence promoting soft paternalism—using nudges to encourage better choices without limiting options. Recently, some behavioral scholars have suggested that positive behavioral models actually support hard paternalism—imposing mandates. This Article challenges the insinuation that behavioral law and economics supports mandates

The International Commitments of the Fifty States

U.S. law allocates power to conduct foreign relations primarily to the federal government, but it is well known that states routinely maintain foreign relations of their own. Much of this activity appears to result in legal and political commitments, whether in the form of “sister state” agreements or binding pledges to cooperate on discrete issues such as investment, environmental protection, and transportation. These commitments are at least loosely comparable to international treaties and may either advance or disserve state and national interests. Yet very little is known about the commitments that are in force. For the most part, neither federal nor state law requires states to publish them or even report them to Congress or the executive branch. Few state agencies voluntarily post pertinent information online. Legal database companies have not included the commitments in their catalogs. And academic research has not served as an adequate, alternative source of transparency. The resulting uncertainty about modern practice inhibits the accountability of state governments to their voters, complicates any effort on the part of state officials to learn best practices, and impedes enforcement of the Article I Treaty Clause and the Compact Clause of the U.S. Constitution, both of which circumscribe state power in this area. This Article resolves the present uncertainty by providing fresh transparency on state commitments with the national, regional, and local governments of foreign sovereigns. Through freedom-of-information requests to every major executive department and agency in each of the fifty states, I obtained a trove of hundreds of previously unpublished commitments, including many that appear to advance state and national interests in underappreciated ways, along with some that operate in significant tension—if not outright conflict—with federal law or foreign policy. The Article analyzes this collection to reveal new trends, promote accountability, identify lessons for negotiators, and facilitate norm consolidation in domestic law. The Article concludes by proposing measures to strengthen the legality and transparency of future commitments

Wisconsin\u27s Citation Rule: Unpublished Should Not Mean Uncitable

Wisconsin’s citation rule stands tall, yet unsupported. It injures Wisconsin practitioners, their clients, and judges in all three levels of Wisconsin’s judicial branch. With little tolerance, Wisconsin Statutes section 809.23(3) precludes the citation of (1) unpublished opinions issued before July 1, 2009, and (2) unauthored, unpublished opinions thereafter. You may be surprised to learn that that means approximately half of Wisconsin Court of Appeals opinions issued each year are uncitable—so, too, are significantly more than half of the opinions it issued before July 1, 2009. Without change, the Wisconsin Court of Appeals will continue to miscategorize its opinions; Wisconsin’s case law will remain deplete of important, citable opinions; practitioners will fail to adequately represent their clients or will compromise their ethics in doing so; and judges may encounter moral dilemmas when practitioners present them with uncitable opinions—posing challenges in cases where analyses could be straightforward through logical or legal reasoning. That’s a problem. To date, four petitions to the Wisconsin Supreme Court have sought to address these problems. The first three proved unsuccessful. The fourth, in 2008, persuaded the Wisconsin Supreme Court to lift its general prohibition on citing unpublished opinions, creating Wisconsin’s citation rule as it stands today. Timing was everything. The Wisconsin Supreme Court found comfort in adhering to the recently adopted federal citation rule. Policy supporting the federal rule, however, was largely inapplicable to Wisconsin—if even applicable to the federal circuits. Considering that, and the trends with citation of other questionable sources, the Wisconsin Supreme Court should reconsider its problematic citation rule. The most recent amendment lifted the corner of the Band-Aid—it’s time to rip it off. The wounds are healed. The concern for infection is gone. Indeed, the Band-Aid may have been applied prematurely, protecting what now purports to have been an illusion. But regardless, it has been left on all too long

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