Akron Law Review
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Open Access journal
ISSN (Print) 0002-371X
Published by U of Akron [1 journal]
- All is Whale That Ends Whale? The Deficiencies in National Protection for
Orca Whales in Captivity
Authors: Hillary T. Wise
Abstract: With the severity of our Earth’s climate change crisis, this article endeavors to underline the critical need for environmental reformation. It is no secret that orca whales epitomize miraculous intelligence, gentility, and strength. As overwhelming as this crisis might be, there are very concrete steps that our legal system can take to begin protecting and making a difference for our whales and our Earth. It is my hope that this article can shed some light on what is at stake for these animals, and how we might move forward toward a sustainable, safe future for them.
PubDate: Mon, 15 Aug 2016 07:25:06 PDT
- Getting Back to the "Grassroots" of Tax Administration: Because "We the
People" Long For a Gathering of American Eagles to Restore Trust in the
Internal Revenue Service with A Rebuild IRS Initiative
Authors: Frank Wolpe
Abstract: Like America, our Internal Revenue Service is a work in progress. Yet, for best results, it’s better to avoid thinking too much about what it is or is not! Instead, let’s think more about what the IRS ought to be! This Article thusly offers a realistic path forward with new choices for a local presence, which once again makes it taxpayer/customer-centric. For more effective tax administration, it also offers a return to something that inexcusably went missing in 1998: senior-executive “on-site oversight” of field operations.If today’s Internal Revenue Service can be fairly described as an exploding volcano of public mistrust and suspicion, which it undoubtedly is, how can we cap and fix it? That may not be an easy question; but there are reasonable answers and options.To begin with, this Article encourages a bipartisan recognition that the local presence of grassroots IRS operations is more important to the taxpaying public than what thousands of Service bureaucrats do at their desks in Washington, D.C. With the harnessed vigor of our great nation, let’s therefore finally move forward to stop the continuing perception of the IRS as a not-so-helpful, dysfunctional and robotic agency. That means no longer surrendering to the tirelessly negative forces that work against good government. For too long we have settled for an IRS-bashing new normal, sadly accepted by very many good folks across our country’s multitude of cities and towns.So, let’s finally stand up straight and begin to pay attention to the goodly case against the IRS failure to bring back more taxpayer-friendly and decentralized, senior-executive local presence, once again with pre-1998 style “on-site oversight,” to better balance and manage distant field-operations.Mindful of that call, the curtain now rises on this Article’s central message, which in part tells the back story of what went so very wrong inside the IRS of 1998 and the years that followed. In that regard, the opening scene, which takes place circa 1998, is illuminated here more openly than elsewhere before.Today, a seemingly fast eighteen years later in 2016, we discover that the agency from 1998 onward has still not fittingly accepted the challenge of restoring lost trust by, among other moves, reinventing lost, bottom-up, senior-executive grassroots local presence and field-accountability. Missing also from the story-line are: (1) the IRS’s not-yet-full recognition of a public right to more accessible, face-to-face, taxpayer/customer-centric opportunities; (2) reinvented, geographically cohesive and decentralized field operations; and (3) the IRS’s need for a willingness to be more flexible with its seemingly rigid fixation upon robotically administered, all-digital and impersonal, taxpayer-service information technology (IT.) Let’s, therefore, start playing the always good game of Lost and Found! Lost—the people’s IRS: Found—We shall see!Nevertheless, none of this Rebuild IRS Initiative is intended to discount the value of numerous recent and praiseworthy IRS changes. Even so, without fresh nationally visible public outreach announcing gradual and non-disruptive structural change (as proposed herein), there are still too many uninspiring miles and years to go!No longer, generally speaking, silent, we speak out now because none of us IRS followers should have ever innocently overlooked, consciously dissed or accepted silently an IRS 1998, critically flawed, structural reorganization. In its fundamental design, with the programmed end of local IRS presence, it moved the Service further away from “We the People.” Compounding that setback, nowadays, we are also faced with the new prospect of the Service moving even further away with an overpoweringly robotic, IT-driven, all-digital IRS. Though a digital IRS, as a helpful option, may be even a great advance, all-digital is just another step backward; and we can do better! Besides, such a future state of affairs is even more worrisome since “all-digital” is apparently central to the IRS’s current, long-range planning (according to reports about what is commonly referred to as the IRS “Future State”).
PubDate: Mon, 15 Aug 2016 07:25:01 PDT
- The Quagmire of Mortgage Short Sale Transactions Under Current
Homeownership Tax Policy in a Time of Crisis
Authors: Tracie R. Porter
Abstract: The 2007 financial crisis continues to loom over homeowners who own underwater properties. What owning underwater property means for homeowners is that the home’s current market value is less than the mortgage balance, making it impossible to sell or refinance the home without the lender’s approval. The quagmire of financial indebtedness created by current tax laws and policy related to Mortgage Short Sale Transactions, or MSSTs, for homeowners creates an onerous tax liability on taxpayers selling underwater properties. The government and lenders, through various programs implemented to help distressed homeowners with underwater properties, created a belief among homeowners that MSSTs are a positive vehicle for selling their underwater properties. Prior to 2007, MSSTs were virtually non-existent. By forgiving the mortgage loan balance, however, lenders exposed homeowners to two situations. First, homeowners face exposure to possible deficiency judgments for the amounts of the forgiven loan balances, which some state laws addressed. Second, homeowners incur potential unavoidable tax liability created by federal and state tax laws for the forgiven indebtedness, which is considered taxable income. It is the latter of these two situations facing middle-class homeowners with properties underwater that this article addresses.
PubDate: Mon, 15 Aug 2016 07:24:56 PDT
- Northwestern, O'Bannon and The Future: Cultivating a New Era for
Taxing Qualified Scholarships
Authors: Kathryn Kisska-Schulze et al.
Abstract: On March 26, 2014, the National Labor Relations Board (NLRB) ruled that Northwestern University’s scholarship football players were employees of the institution and could unionize and bargain collectively. From a federal income tax perspective, the significance of the NLRB decision—at that time—was that it could redefine the principle that select student-athletes are no longer unpaid amateurs receiving qualified scholarships, but instead are employees of their institutions, earning scholarship funds in exchange for services rendered as college athletes. Accordingly, a crucial question arising from the NLRB holding was whether the Internal Revenue Service could logically continue to treat qualified scholarships received by student-athletes as excludable from gross income. To analyze the potential effects of federal income tax on qualified scholarships in the future, this Article provides a brief judicial history of the pay-for-play model, analyzes the language of the Internal Revenue Code as it applies to qualified scholarships, evaluates the potential characterization of student-athletes as employees, and concludes that defining student-athletes as employees of their institutions could cultivate a new era in taxing qualified scholarships from a federal income tax perspective.
PubDate: Mon, 15 Aug 2016 07:24:52 PDT
- "Transplanting" Organ Donors with Printers: The Legal and Ethical
Implications of Manufacturing Organs
Authors: Katherine A. Smith
Abstract: Three-dimensional (3D) printing is no longer restricted to simple inanimate objects; that conjecture is a thing of the past. With advancements in many areas of science, living tissues and organs can now be printed through a technique called 3D bioprinting. This technology could potentially save the lives of the 120,000 Americans in need of an organ transplant. However, whether or not a 3D bioprinted organ qualifies as a “human organ” under the National Organ Transplant Act (NOTA) and whether 3D bioprinted organs require federal approval could either delay or completely bar this technology’s promise. The Ninth Circuit’s Flynn v. Holder and Richards v. Holder and the federal approval requirement for lab-grown organs bolster the interpretation that a manufactured organ would be a “human organ.” The ethical ramifications of 3D bioprinting might also detract from the benefits it promises to offer. If and until the federal government approves it, private creation and selling of 3D bioprinted organs would exacerbate organ selling on the black market. With increasing progressive ventures in medicine, it may be an appropriate time for Congress to amend NOTA.
PubDate: Fri, 22 Jul 2016 10:11:07 PDT
- Curated Innovation
Authors: Lital Helman
Abstract: The regulation of innovation-intensive industries is a critical issue for both innovation policy and regulation. In this Article, I propose a new framework to the way innovation-intensive industries are regulated.My proposal is a four-pronged model, which I term “Curated Innovation.” In the first stage, policymakers would set a standard that would represent the outcome the regulation seeks to achieve. Second, policymakers would launch a competition, where innovative technologies or methods would race to meet the standard that was defined. Third, policymakers would select the methods or technologies that come closest to meeting the standard and create an incentive in the marketplace to adopt them. Such incentives can come in various forms, such as prizes, expedited patent paths, or safe harbors from liability. Finally, policymakers would reconvene periodically to update the standard and examine the performance of new technologies or methods.Adoption of the Curated Innovation model would yield four key advantages. First, this model would improve the effectiveness of regulation because it would induce market-players to aim at the standard policymakers would set. Second, this model would spur innovation in the market by forming a path to the diffusion of the innovative solutions into the market. Hence, this model would ensure that innovation that has social value is not only produced but also adopted in the marketplace. Finally, this model would lead to evolvement of legal standards: it provides a dynamic process where the regulatory standard is constantly examined and updated to meet societal goals at an increasing rate of efficiency.
PubDate: Fri, 22 Jul 2016 10:11:03 PDT
- Are Universities Special?
Authors: Shubha Ghosh
Abstract: Universities offer a space for development of ideas, exploration of basic research, and productive outlets for creation and invention. As such, they are key to the innovation environment within which intellectual property laws operate. Although scholarship has focused on universities as institutions counter to other institutions like markets and government, less attention has been paid to universities as organizations, a site for governance through detailed rules and commonly understood norms. When understood as an organization, universities display three overlapping, but distinct models: one of pure research, one of pure commercialization, and one of public purpose. These three models together define a multivalent view of the university. This Article examines the implications of this multivalent view of the university as organization to the issues of patent and copyright ownership, infringement, and enforcement. The multivalent model presented here provides a more robust and valuable approach to gauging the role of universities in promotion invention and innovation.
PubDate: Fri, 22 Jul 2016 10:10:58 PDT
- Intellectual Property Revenue Sharing as a Problem for University
Authors: Jennifer Carter-Johnson
Abstract: The Bayh-Dole Act, often credited with the explosion of university technology transfer, requires universities to incentivize invention disclosure by sharing the royalties generated by patent licensing with inventors. Many scholars have debated the effectiveness of university implementation of this requirement, and, indeed, the low rate of invention disclosure by academic researchers to the university is often a bottleneck in the technology-transfer process.Unfortunately, most discussions focusing on inventor compliance with Bayh-Dole Act requirements have explored faculty-inventor motivations. However, in most cases, university inventions are joint products of a group of university members including not only faculty but also post-doctoral researchers or graduate students. This collaborative nature of scientific research seems to have been lost in the design of the technology-transfer system. Some scholars have discussed inventorship determinations and the impact of incorrect inventor identification in pre-America Invents Act patent law. Generally, however, the dynamic interactions between joint inventors with different positions within the university are a little studied area of the technology-transfer process.Less well studied is the Bayh-Dole Act requirement that all inventors share in the revenue from a university licensed patent. The distribution of licensing revenue among inventors creates a question of how to divide the portion of the royalties allocated to inventors by the university. This Article explores that revenue distribution. To the extent that the university asks the input of the inventors, many of the problems in the initial recognition of students and post-doctoral fellows as joint inventors become again important in assigning a percentage of the revenue. Additionally, the negotiation power imbalance between joint inventors may indicate that the university should play a larger role in revenue allocation than it does in initial inventor determinations.
PubDate: Fri, 22 Jul 2016 10:10:54 PDT
- What's the Harm of Trademark Infringement?
Authors: Rebecca Tushnet
Abstract: AbstractOver the course of the twentieth century, judges came to accept trademark owners’ arguments that any kind of consumer confusion over their relationship to some other producer caused them actionable harm. Changes in the law of remedies, however, have recently led some courts to question these harm stories. This Article argues for even more attention to trademark’s theories of harm; a clear-eyed look at the marketing literature, as well as the facts of particular cases, indicates that confusion about non-competing products is often harmless.
PubDate: Fri, 22 Jul 2016 10:10:50 PDT
- Fighting Collateral Sanctions One Statute at a Time: Addressing the
Inadequacy of Child Endangerment Statutes and How They Affect the
Employment Aspirations of Criminal Offenders
Authors: Sarah Wetzel
Abstract: In an age where one in four adult Americans has a criminal record, post-conviction relief measures and review of criminal statutes is on the rise. This Comment addresses the inadequacy of current child endangerment statutes around the country by providing examples of those which are too broad and result in convictions of well-meaning parents and those which are too narrow and allow other parents to harm their children without repercussion. It then places these statutes in the context of collateral sanctions that are imposed on individuals with child endangerment convictions, particularly those related to employment and professional licensing.
PubDate: Fri, 24 Jun 2016 08:51:20 PDT
- Adding Insult to Death: Why Punitive Damages Should Not Be Imposed Against
a Deceased Tortfeasor's Estate in Ohio
Authors: Alec A. Beech
Abstract: A majority of jurisdictions in the United States have determined, either statutorily or judicially, that punitive damages cannot be imposed against deceased tortfeasors. However, a recent Ohio appellate court held to the contrary. In Whetstone v. Binner, the Ohio Fifth District Court of Appeals adopted the minority view when it held that punitive damages could be imposed against a decedent’s estate. This Comment takes the position that Whetstone was incorrectly decided. Specifically, this Comment argues that the longstanding purposes of punitive damages are not furthered when such damages are imposed against estates and that Ohio law supports this conclusion.
PubDate: Fri, 24 Jun 2016 08:51:17 PDT
- Socio-Economics: Challenging Mainstream Economic Models and Policies
Authors: Stefan J. Padfield
Abstract: At a time when many people are questioning the ability of our current system to provide economic justice, the Socio-Economic perspective is particularly relevant to finding new solutions and ways forward. In this relatively short conclusion to the Akron Law Review’s publication, Law and Socio-Economics: A Symposium, I have separated the Symposium articles into three groups for review: (1) those that can be read as challenging mainstream economic models, (2) those that can be read as challenging mainstream policy conclusions, and (3) those that provide a good example of both. My reviews essentially take the form of providing a short excerpt from the relevant article that will give the reader a sense of what the piece is about and hopefully encourage those who have not yet done so to read the entire article.
PubDate: Fri, 24 Jun 2016 08:51:13 PDT
- Why Working But Poor? The Need for Inclusive Capitalism
Authors: Robert Ashford
Abstract: This Article addresses two questions: (1) What other solutions beyond those already tried can and should be employed to reduce poverty? and (2) What can legal scholars, lawyers, law schools, legal clinics, and law students do to reduce poverty? The answer to the first question is to establish an “inclusive capitalism” by democratizing “capital acquisition with the earnings of capital” based on the principles of binary economics. This democratization requires extending to poor and middleclass people competitive access to the same governmentsupported institutions of corporate finance, banking, insurance, reinsurance, and favorable tax and monetary policies that are presently available primarily to people and businesses to acquire capital with the future earnings of capital substantially in proportion to their existing wealth. With this democratization, participation in capital acquisition by the vast majority of poor and middle class people would no longer be limited as a practical matter to their meager or even negative net worth. This democratization would transform the existing system of corporate finance (that presently functions primarily to concentrate capital ownership) into an ownershipbroadening system of corporate finance. It would require no taxes, redistribution, borrowing, or government command. Corporations would be free to continue to meet their capital requirements as before, but they would have an additional, ownershipbroadening, potentially more profitable, market means to do so. This additional means could be voluntarily employed to: (1) reduce poverty, welfare dependence, and fear of poverty by substantially enhancing the earning capacity of poor and middle class people (by supplementing their labor income and any transfer payments they may receive increasingly with capital income); (2) reduce tax rates, taxes, and the need for government expenditures; (3) enhance the earning capacity of the participating companies, their shareholders, their employees, and their customers; (4) reduce unemployment, raise wages, and enhance working conditions; (5) enhance the value of equity investments and retirement plans; (6) reduce the risk of borrowing; (7) promote more sustainable, environmentally friendly growth, and (8) enhance the creditworthiness of national governments and their ability to raise revenue. The answer to the second question is for legal scholars, lawyers, law students, and individuals with responsibility for the curriculum of law schools and activities of legal clinics (1) first to learn and to teach (a) the underlying principles of inclusive capitalism based on binary economics, (b) how this democratization with the earnings of capital can be practically implemented, and (c) how this democratization is a necessary part of any systemic solution to poverty and (2) then to advocate, work for, and facilitate its implementation.
PubDate: Fri, 24 Jun 2016 08:51:10 PDT
- Result Inequality in Family Law
Authors: Margaret F. Brinig
Abstract: To the extent that family law is governed by statute, all families are treated as though they are the same. This is of course consistent with the equal protection guarantees of the U.S. Constitution as well as those of the states. However, in our pluralistic society, all families are not alike. At birth, some children are born to wealthy, married parents who will always put the children’s interests first and will never engage in domestic violence. Many laws benefit these children, while, according to some academics, they either further disadvantage other children or at best ignore their needs.This Article empirically explores these questions using a large sample of more than a thousand family dissolution case records (divorces, support, and custody actions) from two counties in Arizona and five in Indiana. The cases were randomly selected from those initiated in January, April, and September of 2008, and documents were collected for all file entries at least through the next five years and were coded to permit comparisons along more than a hundred variables.The discussion involves differences—inequalities—based on income, parents’ marital status, race and ethnicity, and the presence or absence of domestic violence. It also compares results based upon differences in the two states’ parenting and child support laws, showing how presumptions and guidelines chosen to validate public policy can exacerbate inequalities.
PubDate: Fri, 24 Jun 2016 08:51:06 PDT
- The General Theory of Second Best and Economic-Efficiency Analysis: The
Theory, its Negative Corollaries, the Appropriate Response to it, and a
Coda on the Economic Efficiency of Reducing Poverty and Income/Wealth
Authors: Richard S. Markovits
Abstract: A great deal of Law & Economics scholarship focuses on the economic efficiency of a legal doctrine, judicial decision, statute, regulation, or proposed change in the law. This Article argues that virtually all such research is flawed (1) by its failure to consider the impact of the “law” it is analyzing on many of the categories of economic inefficiency whose magnitudes the “law” affects and (2) by its assumption that any “law” that reduces the number or magnitude of the (Pareto) imperfections in the economy (types of imperfections one of whose exemplars would cause economic inefficiency if it were the only imperfection in the system) will increase economic efficiency on that account. This Article explains that this assumption is wrong because it ignores the central lesson of The General Theory of Second Best: since in general any such individual imperfection will be as likely to counteract as to compound the net tendency of the other imperfections in the system to cause economic inefficiency, unless one can make a complicated argument to the contrary that focuses on the different ways in which an economy’s Pareto imperfections interact to cause various categories of economic inefficiency and the incidence of all types of Pareto imperfections in the economy, one must assume that laws that reduce the Pareto-imperfectness of the economy without rendering the economy Pareto-perfect will have no tendency to increase economic efficiency on that account. More positively, the Article outlines and attempts to justify a protocol for economic-efficiency prediction or postdiction that responds economically efficiently to both The General Theory of Second Best and the reality that research is always allocative-costly and its conclusions are almost-always imperfect. The Article also contains a coda that explains why, contrary to the belief of most economists, policies that reduce poverty and/or income-wealth inequality will tend to increase economic efficiency on that account.
PubDate: Fri, 24 Jun 2016 08:51:03 PDT
- "The General Theory of Second Best" - An Overview
Authors: Robert Ashford
Abstract: The following introductory note provides a brief overview of the General Theory of Second Best. This theory is discussed in much greater detail in the essay that follows entitled, The General Theory of Second Best and Economic-Efficiency Analysis: The Theory, its Negative Corollaries, the Appropriate Response to It, and a Coda on the Economic Efficiency of Reducing Poverty and Income/Wealth Inequality written by Professor of law and economics Richard Markovits. This theory, which regrettably is generally ignored in law and economics literature, explains how there is no reason to believe that policy decisions considered in isolation that move a particular set of market relations to greater efficiency will increase rather than decrease the overall efficiency of an economy because the effect of such decisions may promote even greater inefficiencies in other sectors of the economy.
PubDate: Fri, 24 Jun 2016 08:51:00 PDT
- A Socio-Economic Approach to Antitrust: Unpacking Competition, Consumer
Surplus, and Allocative Efficiency
Authors: Jeffrey L. Harrison
Abstract: The primary function of socio-economics is to ask questions and broaden the discussion. I have attempted to do that by unpacking and contextualizing the two economic goals of antitrust law - maximizing consumer surplus and allocative efficiency. I have avoided what I believe is today's faith-based approach as exemplified by the Supreme Court. That approach has now gone beyond economics and seems to reveal, in its most benign form, a deep distrust of government.At its most basic and obvious level the two antitrust goals cede to those with income - earned or not - the right to determine how scarce resources will be used. That may be fine in many respects and may be far superior to any other method. The problem is that consumer surplus is under-inclusive, recognizes only a small universe of values, and falls well short of measuring actual well-being. When the focus is on allocative efficiency and costs of production, antitrust courts and enforcement agencies are unlikely to recognize all costs and can perpetuate a race to exploit. To the extent the race to exploit is repugnant to some, they may be able to express that in markets but only to a limited extent.
PubDate: Fri, 24 Jun 2016 08:50:57 PDT
- Economic Ideology and the Rise of the Firm as a Criminal Enterprise
Authors: William K. Black et al.
Abstract: Over the last 50 years, the institutions, ideology, nature, and power of firms in the United States have been radically transformed. Neoclassical economics has led that transformation, supplying an ideology that justified a dramatic increase in top executive compensation while dismantling the mechanisms that produced personal accountability tied to anything but relatively short term shifts in share prices. Yet, alongside the rise of the corporation, from the time of Adam Smith forward, has been concern that the separation of ownership and control creates opportunities to use the corporation as a “weapon” of fraud, and with the return of global financial crises, there has been renewed concern that finance has once again become an agent of crime that threatens the economic order.This article compares economic and criminological approaches to the corporation. Both approaches focus on incentives and assume that rational actors are responsive to changes such as the dramatic growth in executive financial compensation and the evisceration of other forms of corporate accountability. Both approaches study the separation of ownership and control, and the temptations that come from the ability to speculate with other people’s money. Yet, neoclassical economists assume that markets will police fraud and that fraud therefore need not be a serious subject of study while criminologists posit that the policies that neoclassic economists have championed have created “criminogenic environments” that encourage the use of firms as instruments of fraud.Criminologists call the use of seemingly legitimate firms to manipulate financial markets “control fraud,” that is, fraud by the persons in charge, most typically starting with the Chief Executive Officer (CEO). Modern executive and professional compensation has transformed the CEO and the independent professionals, such as accountants, who once served as sources of external discipline. Today’s CEO can disguise losses, eliminate underwriting, lay off needed workers and take other measures that boost share prices at the expense of a company’s long term viability. Moreover, if enough executives increase their companies’ apparent profitability (and their own bonuses) in doing so, the result creates a “Gresham’s dynamic” in which bad ethics drives good ethics from the industry and the professions. In these criminogenic environments, control frauds become so pervasive that prosecution becomes extremely difficult and markets do respond—with extremely destructive boom and bust financial cycles.
PubDate: Fri, 24 Jun 2016 08:50:54 PDT
- Homeschooling's Harms: Lessons from Economics
Authors: George Shepherd
Abstract: For more than two centuries, supporters of school choice programs, such as homeschooling, have attempted to invoke economic analysis. They have argued that school choice will cause public schools to improve because the public schools will no longer be monopolies; the new competition will discipline the public schools to improve. The argument is incorrect, as shown by both economic theory and empirical analysis. Economic theory indicates that, because of special characteristics of the market for education, competition will harm public schools, not help them. Likewise, empirical economic analysis confirms that competition will tend to harm public schools. Indeed, earlier school-choice programs destroyed many urban public schools.
PubDate: Fri, 24 Jun 2016 08:50:51 PDT
- The Socio-Economics of the Federal Estate Tax: Why Do So Many People Hate
(or Love) This Centenarian?
Authors: Richard Gershon
Abstract: The federal estate tax has faced many detractors during its almost 100 years of existence. While the tax affects only a very small percentage of estates, many have called for its repeal. This Essay discusses the socio-economic reasons why the estate tax should be maintained. The tax is an important source of revenue, and it helps to rectify the growing issue of wealth and income inequality in the United States.
PubDate: Fri, 24 Jun 2016 08:50:48 PDT