Faculty Books & Edited Works

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  Regulation of Lawyers: Statutes and Regulations

  Stephen Gillers and Roy D. Simon

  Prior edition of Regulation of Lawyers: Statutes and Regulations.

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  Federal Income Taxation: Principles and Policies

  Michael J. Graetz and Deborah H. Schenk

  This whole book is but a draught—nay, but the draught of a draught. Oh, Time, Strength, Cash and Patience!—Herman Melville, Moby Dick, Ch.32. Even with more time, strength, cash, and patience, the Congress, the courts, and the Internal Revenue Service all collaborate to ensure that any book designed for teaching a basic course in Federal Income Taxation will never be more than a draft of a draft. Today, no area of law seems more susceptible to change than federal taxation. Consider the following: In the period from the enactment of the Tax Reform Act of 1986 until the end of the 2004, Congress enacted well over 100 different laws amending the Internal Revenue Code, not counting the legislation affecting Social Security, railroad retirement, unemployment compensation, tariffs of customs duties, or the public debt limit. The Code currently contains over 1900 provisions affecting individuals and businesses. As of May 2005, the Code numbered around 2500 pages, making it more than four times longer than War and Peace and considerably harder to parse. The regulations are over 10,000 pages long. During calendar year 2004, the Treasury and IRS published 52 Treasury Decisions (containing final and temporary regulations), 60 sets of proposed regulations, 113 Revenue Rulings, 73 Revenue Procedures, 84 Notices, 103 Announcements, over 2,400 Private Letter Rulings and Technical Advice Memoranda, 6 Actions on Decisions, and a partridge in a pear tree. For 2004 an individual fling the income tax Form 1040 could file a return with 79 lines, with 9 additional schedules. The schedules refer you to 24 additional worksheets. The instructions to the Form 1040 filled 128 pages of rather small type. In addition to Form 1040, there are 22 additional forms that can be used by individuals. Meanwhile, the courts have decided over 35,000 tax cases. In 2004 alone, over a thousand tax bills were introduced in the Congress. Most of them go nowhere, but Congress passed 11 tax bills in 2004, ranging from the Arrow Components Act of 2004, which contained only one section, to the massive American Jobs Creation Act of 2004, which had hundreds of provisions amending the Code. And hardly a day passes without a new proposal for replacing the income tax either with some form of consumption tax or a broader-based, flatter-rate income tax. Obviously it is impossible—and we think unwise—for a course introducing the income tax to try to instruct students about each of these developments. This book is about the fundamental concepts and forces shaping the income tax, not current events. That is why this edition reflects a remarkable continuity with its ancestor edition, Griswold’s Cases on Federal Taxation. That book, initially published more than sixty-five years ago in 1940, was the first law school coursebook devoted exclusively to federal taxation. It appeared at a time when most of the operative statutory provisions were phrased in general terms and many of the basic concepts of federal taxation had not yet matured. Most law schools taught federal taxation only as part of a course that also covered state and local taxation. Nevertheless, this text retains the same overarching organization that Erwin Griswold first brought to the subject. The subsequent adoption of this structure by most income tax coursebooks is a great tribute to Griswold’s insights into how the subject of federal taxation should be taught. The mass of detail that has been added to the statute and the regulations and the burgeoning case law in the intervening six decades has required a substantial rethinking of the purposes of an introductory course in federal taxation and, hence, of this coursebook. For one thing, these details have become so voluminous and the changes so frequent that the student must necessarily strive to understand basic concepts rather than to memorize particular rules. The practice of tax law has become more specialized, and most law schools offer a number of advanced course in taxation. The student in an introductory course therefore must attain some familiarity not only with the statute, the regulations, and the cases but also with the trends in the tax law, the prospects for change, and the fundamental policy issues that inform such changes. Successful tax lawyering inevitably will involve responding to new and unforeseeable rules and therefore will demand a basic conceptual understanding of income tax principles and policies. Likewise, the nonspecialist needs to be introduced to these fundamental concepts of income taxation, if only to be able intelligently to recognize and monitor his or her clients’ tax problems. The composition of this book has also been influenced by the increasing use of the tax law as an instrument of social and economic policy. The income tax is not merely a revenue-raising device to finance the goods and services provided by the government. The decisions as to what to tax, and when, increasingly affect the directions, growth, and overall condition of our economy and the allocation and distribution of resources within our society. For these reasons, this volume devotes substantial attention to the general principles and policies of federal taxation. Thus, cases have been supplemented with excerpts from congressional reports, administrative pronouncements, and commentaries and analyses of tax issues. In addition, there are explanatory notes introducing fundamental concepts of tax law and shorter notes following the principal cases. This edition nevertheless continues to reflect the central pedagogical perspective developed in Erwin Griswold’s original volume, the preface of which stated: “Here is an opportunity, almost unique * * *, to study a complete and self-contained system. Here is an opportunity to come into contact with perhaps our most experienced administrative agency. Here is an opportunity to deal with a statute, not as some excrescence on the common law, but as the law, to trace its growth, to learn how it is given meaning and how that meaning changes. Here is an opportunity to deal with authoritative judicial decisions—or at least, and perhaps more important, to consider how far they are authoritative * * * Here as elsewhere it is understanding and knowledge of the process that is sought.” These opportunities are not less present in this volume than they were in its ancient predecessor. This edition retains the basic chapter organization of its predecessors. The first chapter contains the basic policy and procedural aspects of income taxation. This chapter includes a brief history of taxation in the United States, an introduction to income tax terminology, and a discussion of the roles of Congress, the executive, and the courts. Subsequent chapters explore the topics “What Is Income?,” “Deductions and Credits,” “Whose Income is It?,” “Capital Gains and Losses,” and “When is It Income?”. Of course, tax problems rarely can be placed into such discrete categories. Hence, there is some overlap of subjects within the chapters. Chapter 7 provides a brief description of the individual minimum tax. Chapter 8 contains an introduction to corporate tax shelters as well as materials on the ethical responsibilities of tax lawyers, thereby providing an appropriate context for their analysis and discussion. The Appendix contains tables of present values. As every teacher of taxation knows, it has become increasingly difficult to teach an introduction to federal taxation in a single semester, even in a 60-hour course. Compromises between breadth of coverage and treating at least some materials in depth are ever more necessary. Most instructors have learned to maintain limited expectations as to what can reasonably be accomplished in the first course and to assume that students with genuine interest in taxation will take additional courses in the subject. This volume continues the layered approach of the prior editions. By selecting from the materials available here, teachers can decide which aspects of income tax law and policy to emphasize and which to skim or even omit in an introductory course. This volume contains enough materials to teach not only a four-hour basic course in federal income taxation, but also an additional three-hour course designed to pursue certain issues in greater detail than is possible in the basic course. This means that the instructor must exercise considerable selectivity in teaching any single course form this book. For example, one of us tends to emphasize Chapters 2 and 3, the first two sections of Chapter 4, the first three sections of Chapter 5, and a brief selection from Chapter 6. Another professor, who taught these materials in a two-semester course, skipped certain aspects of Chapters 2 and 3 and used only the introductory sections of Chapters 4 and 5 in the basic course, with the balance of materials used in the second course. Instructors who wish to cover more ground might consider relying on students to read some of the more straightforward materials without classroom discussion. Designing courses inherently involves personal priorities and choices. The precise materials assigned will depend upon the teacher’s individual choices of where to delve deeply into substantive law and policy issues as well as how to trade off in-depth discussions and general coverage. We have attempted here to provide sufficiently comprehensive, interesting, and flexible materials to allow teachers to make a wide variety of successful selections. Federal income taxation is, of course, primarily a statutory course. In addition to this text, the student will need a current edition of the Internal Revenue Code and as well as certain sections of the Income Tax Regulations. A number of publishers now produce one volume editions of selected statutory and regulatory provisions that may be used along with this text.

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  What's Wrong with Children's Rights

  Martin Guggenheim

  Children's rights: the phrase has been a legal battle cry for twenty-five years. But as this provocative book by a nationally renowned expert on children's legal standing argues, it is neither possible nor desirable to isolate children from the interests of their parents, or those of society as a whole. From foster care to adoption to visitation rights and beyond, Martin Guggenheim offers a trenchant analysis of the most significant debates in the children's rights movement, particularly those that treat children's interests as antagonistic to those of their parents. Guggenheim argues that children's rights can serve as a screen for the interests of adults, who may have more to gain than the children for whom they claim to speak. More important, this book suggests that children's interests are not the only ones or the primary ones to which adults should attend, and that a best interests of the child standard often fails as a meaningful test for determining how best to decide disputes about children.

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  Federal Habeas Corpus Practice and Procedure

  Randy A. Hertz and James S. Liebman

  In 1996, Congress substantially reshaped federal habeas corpus law and procedure by enacting the Antiterrorism and Effective Death Penalty Act (AEDPA). The legislation affected numerous aspects of the federal habeas corpus process, changing standards and procedures that had long been in effect. Since 1996, the Supreme Court and the lower federal courts have grappled with numerous difficult questions in interpreting AEDPA’s language and determining how best to implement the legislation’s general rules in a wide variety of factual contexts, many of which were not anticipated by AEDPA’s drafters and do not fit comfortably within AEDPA’s rules. Finally, as of now, a decade later, the bulk of the largest and most vexing questions have been resolved, leaving only a few issues that still require resolution by the Supreme Court. This edition of the book accordingly is able to present a more complete picture of AEDPA’s standards and implications than was possible in prior editions. Chapter 3 presents an overview of AEDPA’s provisions (and, in 3.5b, an outline of the rules that apply to different types of cases) and subsequent chapters delineate the specific changes that AEDPA made and the types of cases to which the changes apply. Yet, even as this book is going off to press in October 2005, the Senate and the House of Representatives are considering new bills that could radically change federal habeas corpus law and ignite an even larger and more troubling set of interpretational and constitutional difficulties and implementation problems. Not surprisingly, therefore, the bills have prompted opposition not only from advocates on behalf of the imprisoned but also from federal and state court judges and state attorneys general who seek to stave off the kinds of procedural uncertainties and delays that Congress produced with its enactment of AEDPA in 1996 and from which the federal and state courts are only now beginning to recover. This then is a paradoxical moment for federal habeas corpus procedure: The federal habeas corpus process has finally attained a degree of stability that has been absent since Congress’ enactment of AEDPA; and yet the process stands on the precipice of a new period of chaos. Because there is no way to predict at this point whether any of the pending bills or some variant will be enacted, or even whether or how soon Congress will reach a judgment about the proposals, we have decided to go forward with this new edition in the hope of providing our readers with our best understanding of the law as it currently exits. In the event that any new legislation is adopted, we will respond promptly by issuing a supplement to describe the new statutes and how they interact with preexisting law and procedure.

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  Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830

  Daniel J. Hulsebosch

  According to the traditional understanding of American constitutional law, the Revolution produced a new conception of the constitution as a set of restrictions on the power of the state rather than a mere description of governmental roles. Daniel J. Hulsebosch complicates this viewpoint by arguing that American ideas of constitutions were based on British ones and that, in New York, those ideas evolved over the long eighteenth century as New York moved from the periphery of the British Atlantic empire to the center of a new continental empire. Hulsebosch explains how colonists and administrators reconfigured British legal sources to suit their needs in an expanding empire. In this story, familiar characters such as Alexander Hamilton and James Kent appear in a new light as among the nation's most important framers, and forgotten loyalists such as Superintendent of Indian Affairs Sir William Johnson and lawyer William Smith Jr. are rightly returned to places of prominence. In his paradigm-shifting analysis, Hulsebosch captures the essential paradox at the heart of American constitutional history: the Revolution, which brought political independence and substituted the people for the British crown as the source of legitimate authority, also led to the establishment of a newly powerful constitution and a new postcolonial genre of constitutional law that would have been the envy of the British imperial agents who had struggled to govern the colonies before the Revolution.

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  Civil Procedure

  Samuel Issacharoff

  This book will analyze legal procedure as part of a complicated interaction between private ordering and public intervention. Modern society brings people together in a variety of settings and injects an active state presence into all manner of every day activities. Inevitably there are disputes. Yet, these disputes settle all around us, based on social norms or simply an understanding of what is right and what is wrong; what is contestable and what is not. This private ordering of responsibility occurs against a backdrop, sometimes but certainly not always invoked, of what might occur were the matter to be taken to the more costly system of public dispute resolution. In this sense, disputants outside the legal system are said to be bargaining in the shadow of the law. For those who cannot privately order their disputes, there are two public interests. The first is to provide a public resolution such that future similarly situated disputants may be better able to anticipate what are the likely outcomes should they proceed to litigation. The second is to provide finality so that the disputants may get on with their affairs. The central thrust of this book will be to examine the overall structure of public dispute resolution through six basic concepts: 1)rudimentary fairness and the trade off between equity and efficiency; 2)defining the parameters of a dispute in terms of the presentation of issues and the obtaining of information; 3)defining the scope of the dispute in terms of parties, particularly as the judicial system confronts increasingly complex litigation; 4) defining the power of the courts; 5) securing finality; and 6) the costs of procedure.

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  Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute: Proposed Final Draft (April 11, 2005)

  Andreas F. Lowenfeld and Linda J. Silberman

  Reporters Andreas Lowenfeld and Linda Silberman have worked for six years on proposed federal legislation concerning enforcement of foreign judgments. In the United States, the subject has largely been treated as a matter of state law, notwithstanding its substantial significance for relationships with other countries. The ALI initially asked Professors Lowenfeld and Silberman to draft implementing legislation for what was then expected to be an agreement, drafted under the auspices of the Hague Conference on Private International Law, for an international convention on Jurisdictions and Judgments. The State Department encouraged the ALI to undertake this work. When progress slowed at The Hague, the Reporters and most of their Advisers decided that the United States would benefit from a federal statute whether or not there was a convention to implement and that the ALI should draft and recommend such a statute. Some Advisers and some Institute members have disagreed with that view, believing that state jurisprudence on the subject, guided by the Uniform Act recommended by the National Conference of Commissioners on Uniform State Laws and enacted in about 30 states, has been satisfactory. However, substantial majorities of the Advisers, the ALI Council, and our interested members have continued to support the effort to recommend a federal statute. We expect to conclude work on this subject this year under the project’s new and more accurate title: Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute. The analysis is expressed in a comprehensive review of the law, largely contained in commentary and Reporters’ Notes. The proposed statute is in the tradition of ALI statutory work on tax law, on securities law, and most recently on the Federal Judicial Code. Our goal in this project is to clarify the law and to foster consideration of federal legislation to achieve national treatment of foreign judgments and the uniformity, in both federal and state courts, that should attend such treatment. Federal legislation would be an appropriate exercise of Congressional authority and, to the extent the Supreme Court continues to treat recognition and enforcement of foreign judgments as matters governed by state law, would be necessary to transform an important question, with growing international implications, from one of state law to one of national law. The constitutional basis for the legislation is set out in the Introduction to this draft. The most controversial issue in this effort has been whether to require reciprocity from countries whose judgments come before an American court for enforcement. The Reporters have done imaginative and sophisticated work to draft and explain the reciprocity requirement included in the present draft. The membership of the ALI was and probably still is divided on whether the statute should contain such a requirement, but a vote at last year’s Annual Meeting favored reciprocity. We believe that this project will have influence whether or not the recommended statute is enacted. That was true of the Institute’s Federal Securities Code and of a number of our federal income tax projects. It was also true of the ALI’s important Study of the Division of Jurisdiction Between State and Federal Courts, published in 1969. When we recommended Federal Judicial Code amendments in 2004, we said of that earlier work: “[T]he 1969 Study . . . exerted [an] enormous influence . . ., but . . . [the] Congress [was never] persuaded to adopt its recommendations on a wholesale basis.” Federal Judicial Code Revision Project, Introductory Statement at 1. We hope that at an appropriate time, the recommended federal statute will achieve Congressional approval. But whether or not it does, we think that our work will help the legal community understand these challenging issues and that it will influence the future development of the law of judgments in the international arena. The Reporters, leading scholars of both Civil Procedure and international law, have made major contribution to the Institute and legal scholarship. We thank them, the distinguished group of Advisers who assisted the Reporters, and the many ALI members who have participated in our lively discussions of this subject.

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  Civil Procedure

  Arthur R. Miller and Jack H. Friedenthal

  Comprehensive analysis of civil procedure, convenient for class or exam preparation. Provides clear and concise explanations of legal concepts and terms, along with exam hints, strategies, mnemonics, charts, tables, and study tips. Includes self-testing and diagnostic review questions, and Case Squibs, which are capsule summaries of significant cases identifying important facts, primary issues, and relevant law. Provides a Casebook Table, which keys to relevant pages of leading casebooks, and numerous essay and multiple choice questions with model answers and detailed explanations. The 10-5-2 Hour Study Guide offers study suggestions for the critical hours before an exam

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  Cross-Border Human Resources, Labor and Employment Issues

  Andrew P. Morriss and Samuel Estreicher

  As the world's economies grow ever more interdependent, national regulation of labor markets become more and more problematic. Globalization fundamentally alters how labor markets respond to regulatory regimes. Differences in national political solutions of balancing the market's demand for a company's efficiency and productivity and employees' and unions' demands for state interventions become harder to maintain in an environment where employers can shift work among jurisdictions through cross-border movements of workers, trade agreements, and global human resources management. This important theme was the focus of New York University's 54th Annual Conference on Labor and Employment Law. This long-standing, influential conference is the premier forum for bringing together legal practitioners, academics and researchers, government officials, representatives of companies and labor unions, and human resources specialists to explore solutions to problems in the workplace. The Conference has recently been brought under the umbrella of the Center for Labor and Employment Law at the New York University School of Law, chaired by Professor Samuel Estreicher. This highly significant book reprints the papers presented at the 54th Conference, with several additional papers. In its pages more than 40 noted labor and employment experts from a diverse range of countries and disciplines offer penetrating analyses of developments and trends in such areas as the following: regulation of immigrant labor; legal issues facing undocumented workers; labor markets in border regions; guest worker programs; extraterritorial applications of U.S. law; employee rights under EU law; the role of antidiscrimination law; harmonizing alternative dispute resolution processes worldwide; termination policies; data ownership; linguistic diversity; international labor standards and institutions transnational cooperation among labor unions. In addition to addressing the various technical legal questions, this volume features empirical work that provides valuable data with which to support or formulate policy arguments. A wide-ranging yet incisive survey of expert opinion and analysis in the field, it will be of great usefulness to all professionals involved in labor and employment law and policy in the multinational arena.

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  Microeconomics

  Robert S. Pindyck and Daniel L. Rubinfeld

  This book is well known for its coverage of modern topics (Game theory, Economics of Information, and Behavioral Economics), clarity of its writing style and graphs, and integrated use of real world examples. The emphasis on relevance and application to both managerial and public-policy decision-making are focused goals of the book. This emphasis is accomplished by including MANY extended examples that cover such topics as the analysis of demand, cost, and market efficiency; the design of pricing strategies; investment and production decisions; and public policy analysis. Economists and strategists looking to stay current with economic information.

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  Disarming Manhood: Roots of Ethical Resistance

  David A.J. Richards

  Masculine codes of honor and dominance often are expressed in acts of violence, including war and terrorism. In Disarming Manhood: Roots of Ethical Resistance, David A. J. Richards examines the lives of five famous men—great leaders and crusaders—who actively resisted violence and presented more humane alternatives to further their causes. Richards argues that William Lloyd Garrison, Leo Tolstoy, Mohandas Gandhi, Winston Churchill, and Martin Luther King Jr. shared a psychology whose nonviolent roots were deeply influenced by a loving, maternalistic ethos. Drawing upon psychology, history, political theory, and literature, Richards traces a connection between these leaders and the maternal figures who profoundly shaped their responses to conflict, often on the basis of an original interpretation of the teachings of Jesus of Nazareth. The voice of nonviolent masculinity has empowered ethical transformations, including civil disobedience in South Africa, India, and the United States. Disarming Manhood demonstrates that as Garrison, Tolstoy, Gandhi, Churchill, and King carried out their various missions, they were galvanized by teachings whose ethical foundations rejected unjust violence. Accessibly written and free of jargon, Disarming Manhood will interest a wide audience as it furthers the understanding of human nature itself and contributes to the fields of developmental psychology and feminist scholarship.

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  The Case for Gay Rights: From Bowers to Lawrence and Beyond

  David A.J. Richards

  As Americans wrestle with red-versus-blue debates over traditional values, defense of marriage, and gay rights, reason often seems to take a back seat to emotion. In response, David Richards, a widely respected legal scholar and long-time champion of gay rights, reflects upon the constitutional and democratic principles—relating to privacy, intimate life, free speech, tolerance, and conscience-that underpin these often heated debates. The distillation of Richards’s thirty-year advocacy for the rights of gays and lesbians, his book provides a reflective treatise on basic human rights that touch all of our lives. Drawing upon his own experiences as a gay man, Richards interweaves personal observations with philosophical, political, judicial, and psychological insights to make a compelling case that gays should be entitled to the same rights and protections that every American enjoys. Indeed, the call for gay rights can trace its lineage back to the powerful protest movements of the 1960s and 1970s, which demanded racial and sexual equality and ultimately overthrew the bigoted status quo. Richards focuses particularly on two key Supreme Court cases: the 1986 decision in Bowers v. Hardwick upholding Georgia’s anti-sodomy laws and the 2003 decision in Lawrence v. Texas striking down Texas anti-sodomy laws and overturning Bowers. He shows how Bowers arose in a period of constitutional crisis over the right to privacy and examines the opinions in light of the Court’s division in Roe v. Wade. He then shows that Lawrence must be understood in the context of later cases, notably Casey and Romer, which required that Bowers be reconsidered and overruled. Along the way, he examines current debates over gays in the military and same-sex marriage, assesses the Massachusetts Supreme Court’s decision to permit gay marriage, and critiques the 1996 Defense of Marriage Act. Eloquent and impassioned, Richards’s work crystallizes the essence of the argument for a much more expansive and tolerant view of gay rights in America. It also offers a touching account of one gay man’s very personal struggle to find the voice he needed to speak truth to the powerful forces of discrimination.

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  Rethinking the Patriot Act: Keeping America Safe and Free

  Stephen J. Schulhofer

  The USA Patriot Act One is of the most controversial and possibly one of the most misunderstood laws Congress has ever enacted. For many Americans, it is synonymous with an egregious and unjustifiable suspension of the Bill of Rights. Others, troubled but more cautious, identify the Patriot Act with the grant of unprecedented powers that put civil liberties at some risk. Many who reject these concerns nonetheless accept their underlying assumption—that the Patriot Act does indeed give the federal government a package of powerful new search and surveillance tools. In Rethinking the Patriot Act, Stephen J. Schulhofer explains the act’s most important provisions and reviews the best information currently available to gauge their usefulness and their effects in practice. Contrary to conventional wisdom, Schulhofer argues that much of the Patriot Act was essential, and some of it, if not essential, was reasonably defensible. In fact, the act includes provisions—seldom noticed—that add new protections for certain civil liberties, extend new benefits to certain immigrant groups, and provide new remedies for violations of individual rights. Nonetheless, Schulhofer concludes, many of the act’s new powers are far too broad, and even where the case for broad powers is strong, they were typically conferred with little effort to assure transparency and accountability.

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  International Aspects of U.S. Income Taxation

  John P. Steines Jr.

  This book addresses the international aspects of U.S. tax law—the rules that govern U.S. taxation of U.S. activity by foreign persons and foreign activity by U.S. persons. It is an outgrowth of materials I have prepared for various courses in international taxation offered in the LL.M. program in taxation at New York University School of Law over the last twenty years. Though primarily attended by LL.M. students from the United States and numerous foreign countries, J.D. students typically also enroll in the courses, and there is no reason why the book may not be used with either group of students. The book is informed not only by teaching experience, but also by my experience practicing international tax law. I have tried to cover not only what is academically interesting, but also what is practical and important to tax practitioners in the private and public sectors. International tax draws from many sources and is exceedingly difficult. The book is designed to capture within its covers all that a student needs (other than the Internal Revenue Code and Treasury Regulations) to gain a sophisticated understanding of the field. There are many fine primers and treatises on international tax, but the rules are so intricate that students, who rarely have time to read outside sources, learn best by focusing on the primary material. My observation is that it is desirable that students studying international tax have prior or contemporaneous academic or practical exposure to corporate tax and at least passing familiarity with partnership tax. Each section of the book begins with carefully selected reading assignments in the Code and Regulations, followed by introductory “Notes” and then primary and secondary materials (cases, rulings, studies, etc.). In order to illustrate the effect of treaties, the reading assignments often include provisions of the U.S. Treasury Model Treaty and the treaty between the United States and the Netherlands, which are reproduced in the Appendix. Most sections conclude with a problem, which may be used as a vehicle for class lecture or discussion, designed to text understanding of the material in as practical a setting as brief hypothetical patterns permit. The Notes provide introductory explanation and probe policy and practical issues raised only peripherally or obscurely by the primary material. Though primarily intended as a teaching resource, the book may also serve as a research and practice tool for practitioners. The Notes, which cite numerous cases, administrative materials, and law review articles, provide overview and analysis of most relevant practice areas and are an entry point to numerous research topics. In that sense the Notes function as a concise analytical compendium, with more depth than a primer but not as exhaustive as a treatise. A table of contents follows immediately and a table of authorities and index are at the end of the book. The book, which is now in the second edition, reflects developments through August 1, 2005, including the American Jobs Creation Act of 2004. The Act repealed the Extraterritorial Income regime (“ETI”), prospectively (in 2007) reduced to two the number of separate foreign tax credit limitations, retroactively (to 2003) repealed the separate limitation for “10/50” companies, prospectively (in 2009) authorized worldwide allocation of interest expense, polices “inversion” transactions via imposition of new corporate-level tax, permits low-taxed dividends from foreign subsidiaries through the end of 2005 (and longer if, as some suspect, the sunset date is extended), relaxed taxation of international shipping operations, and made miscellaneous changes to subpart F and the inbound rules. Much of the revenue saved by repeal of the ETI (and more) was spent on a new deduction equal to a specified percentage of net income from domestic manufacturing. The percentage is three percent for 2005 and 2006, six percent for 2007 through 2009, and nine percent thereafter. When fully phased in, the deduction will translate into a rate reduction from 35 percent to just under 32 percent. Apart from the economic flaw (why single out domestic production for favorable treatment?), having to isolate net income from domestic manufacturing will subject purely domestic activity to the same genre of headaches that has long plagued international activity: the need to categorize activity and to delineate associated items of income and expense. It will be no surprise if a future Congress repeals the domestic manufacturing deduction and replaces it with a single rater structure for all types of activity.

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  The Regulation of International Trade

  Michael J. Trebilcock and Robert L. Howse

  The Regulation of International Trade is the definitive text tracing the origins and development of the world's system of trade and tariffs. Drawing on a widevariety of classic and contemporary sources, the authors provide a critical analysis of the institutions and agreements that have shaped international trade rules, including the World Trade Organization, the North American Free Trade Agreement and the commercial aspects of the European Union. Basic principles such as Most Favored Nation and National Treatment are contextualized, and special sections cover trade areas such as agriculture, services and the growing debate over trade-related intellectual property rights. The environment, labor rights and migration are also examined in light of the growing debate over globalization and groundbreaking international treaties such as the Kyoto Agreement. Drawing on previous highly praised editions but including up-to-date material on the Doha trade round and the growing body of WTO dispute resolution case law, this comprehensive text is an invaluable guide to students of economics, law, politics and international relations.

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  The Secrecy Problem in Terrorism Trials

  Serrin Turner and Stephen J. Schulhofer

  In addition to written sources, this Report draws from over twenty detailed interviews with a range of individuals possessing extensive first-hand experience in terrorism investigations and prosecutions. Those interviewed include lead prosecutors and defense counsel involved in the four most significant terrorism cases of the 1990s: the 1993 World Trade Center bombing trial; the trial of Sheikh Omar Abdel Rahman and others for the so-called “Day of Terror” plot, involving a failed scheme to blow up various New York City landmarks on a single day; the trial of Ramzi Yousef for the “Bojinka” plot, a failed Al Qaida plan to blow up a dozen airliners crossing the Pacific over a twenty-four-hour period; and the trial of four Al Qaida members for the 1998 bombings of the U.S. embassies in Kenya and Tanzania. Current and former officials from the Department of Justice, Federal Bureau of Investigation, and Central Intelligence Agency were also consulted. Some of the individuals interviewed did not wish to be quoted by name; they are cited but not identified individually in the text and endnotes.

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  Local Government Law: Cases and Materials

  Lynn A. Baker and Clayton P. Gillette

  This law school casebook approaches its subject from a public law perspective. The key question is whether the executive, the legislature, or the judiciary should make a given decision, or perhaps whether the good or service at issue should be provided by government at all. In order to explore this question, the authors go beyond case law to integrate learning from other disciplines, ranging from public finance to political philosophy.

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  Intellectual Property: Trademark, Copyright, and Patent Law: Cases and Materials

  Rochelle C. Dreyfuss and Roberta Rosenthal Kwall

  This casebook applies the principles of intellectual property protection to fact patterns arising in a variety of industries, including music, art, computers, biotechnology, and industrial design. The text takes a comparative approach to intellectual property that emphasizes the commonalities and differences in the theories underlying the regimes of trademark, copyright, and patent law. State law is integrated into the discussion, comparing laws and raising issues of pre-emption as they naturally occur in cases. A comprehensive teacher's manual provides answers to the problems, discusses each case in detail, and includes background materials, hypotheticals, and suggested readings.

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  Cases and Materials on Torts

  Richard A. Epstein

  If you are not already planning to use the new edition of Richard A. Epstein's casebook in your next torts course, stop and reconsider before you submit your adoption decision. Generations of law students have found the path to understanding with the help of this illuminating casebook. Cases and Materials on Torts effectively integrates modern scholarship with historical background to provide a solid introduction to basic torts: Author Richard A. Epstein is well known and highly regarded for his scholarship. The book takes a traditional approach To The subject, integrating cases with modern scholarship on moral theory, law and economics, and salient policy questions. An extremely thoughtful presentation examines the processes of legal method, legal reasoning, And The impact of legal rules on social institutions as it exposes students To The various intellectual approaches that have been taken to interpreting torts. The presentation of historical background. recognized as among the finest treatments in the field. grounds students in the development of tort law from the formative cases To The present day. The detailed Teacher's Manual offers teaching tips proven successful through years of use. the Eighth Edition incorporates several changes: New Material on statutory developments, such as Sept. 11 Victim Compensation Fund and asbestos compensation (pending passage). Coverage of the cybertrespass debate and spam, including Hamidi v. Intel. Updates on punitive damages, including the Supreme Court's State Farm case. New cases on guns as a public nuisance and statutory responses (pending passage). Updated and reorganized coverage of defamation and products liability. With exceptional clarity and quality, this highly successful casebook puts torts in context for your students.

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  Competition Laws in Conflict: Antitrust Jurisdiction in the Global Economy

  Richard A. Epstein and Michael S. Greve

  The growth and integration of national and global markets should make the world more competitive and antitrust policy less important. Instead, globalization has produced a veritable antitrust proliferation. When corporate transactions routinely cross borders, anticompetitive practices in one jurisdiction invariably affect producers and consumers in another. A system in which each affected jurisdiction gets to apply its own competition rules to those transactions poses a danger of grave political conflicts and, moreover, intolerable costs for producers, who must comply with the often conflicting demands of multiple jurisdictions. Moreover, states have powerful incentives to permit domestic industries to exploit outsiders, or even to facilitate such practices. High-profile antitrust conflicts, from the prosecution of Microsoft in state, national, and international forums to the transatlantic disagreement over the European Union’s merger policy, illustrate the difficulties. Possible solutions to these problems range from improved intergovernmental cooperation, to direct policy harmonization, to a new regime of “structured competition” in antitrust policy modeled on U.S. corporation law. In Competition Laws in Conflict, leading experts explore these and other routes to a new and better institutional design for global antitrust in the national and international contexts. While the authors all start from the premise that legal rules–substantive and procedural–should seek to maximize aggregate social welfare, many of them disagree on the suitable jurisdictional arrangements. On the domestic front, most authors opt for a sharper distinction between national and local responsibilities. At the international level, the authors’ preferences range from a thoroughgoing harmonization of antitrust law to an antidiscrimination regime under WTO auspices to a defense of the existing, near-anarchic regime. The editors’ introduction provides a theoretical framework for the basic jurisdictional problems in antitrust law. Their conclusion reviews the contributions in light of that framework and provides policy recommendations.

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  Cases and Materials on Employment Discrimination and Employment Law

  Samuel Estreicher and Michael C. Harper

  This law school casebook presents updated materials on employment discrimination law. The book provides a text for a comprehensive course on substantive and procedural law, including in depth analysis of models of proof under Title VII, as well as of the special problems presented by the regulation of sex, age, disability, and retaliatory discrimination. The book also highlights procedural systems under Title VII, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA), as well as issues of coordination between private arbitration and federal and state regulation.

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  Cases and Materials on Employment Law

  Samuel Estreicher and Michael C. Harper

  While growing out of our larger text on Employment Discrimination and Employment Law, this book is intended for use in a stand-alone, three-hour course in Employment Law. We cover the ranges of questions that a practitioner in employment law is likely to need to master in order competently to represent clients. This text addresses the threshold inquiry whether the relationship at issue is an employment relationship; the American rule on employment-at-will and its growing contract and tort exceptions; actions claiming retaliation under federal and state laws, and related claims for violation of public policy; privacy contentions in the workplace; minimum wage and overtime violations; employee benefits claims; post-employment restraints; and an integrated presentation of procedural systems and their coordination. In short, everything the employer lawyer should know, other than employment discrimination law and labor law, is treated in this book, and in a manner that develops the interrelationship of doctrines across bodies of law, and emphasizes issue of practical as well as theoretical import. The notes and questions that follow the principal readings are designed to expose the student to the emerging cutting-edge issues in the particular area. The note material is intended primarily as a teaching tool rather than as a vehicle for expressing our particular viewpoints. In this text, as in the first edition, we have not tried to reach complete consensus concerning the wording and the balance of each of our notes. Although each author offered close and extensive editing of all chapters, each chapter in this book was the primary responsibility of only one of the authors, and that author had the final authority to determine its contents.

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  Alternative Dispute Resolution in the Employment Arena

  Samuel Estreicher and David Sherwyn

  On the strength of the landmark 1991Gilmer decision of the U.S. Supreme Court—which set a precedent precluding employees from litigation against their employers if they had signed a pre-dispute mandatory arbitration agreement—many U.S. companies have developed mandatory alternative dispute resolution (ADR) policies for employees. However, the issue is far from settled. A major segment of the U.S. labor and employment law community, including the powerful Equal Employment Opportunity Commission (EEOC) and numerous high-profile academics, contend that such agreements are unenforceable, and indeed should be unenforceable as a matter of policy. This controversy was the theme of New York University’s 53rd Annual Conference on Labor. This long-standing, influential conference is the premier forum for bringing together legal practitioners, academics and researchers, government officials, representatives of companies and labor unions, and human resources specialists to explore solutions to problems in the American workplace. The Conference has recently been brought under the umbrella of the Center for Labor and Employment Law at the New York University School of Law, chaired by Professor Samuel Estreicher.This valuable symposium addresses such provocative questions as the following: What is corporate America doing with respect to ADR? How have in-house ADR programs fared? Is ADR an economically efficient method to resolve disputes? Do due process protocols affect outcomes? Is post-dispute voluntary arbitration a viable alternative to pre-dispute mandatory arbitration? Are Gilmer agreements possible in the union setting? How does arbitration address class actions and injunctions? Is mediation the better form of ADR? In addition to addressing the technical legal questions, this volume, which reprints the proceedings of the 53rd Annual Conference on Labor, features empirical work that provides data to answer many of the questions that form the basis of many of the policy arguments. This wide-ranging yet incisive survey of expert opinion and analysis in the field will be of great value to all professionals involved in the law and policy attendant on labor and employment in the United States.

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  The Draft UNCITRAL Digest and Beyond: Cases, Analysis and Unresolved Issues in the U.N. Sales Convention: Papers of the Pittsburgh Conference Organized by the Center of International Legal Education (CILE)

  Franco Ferrari, Harry Flechtner, and Ronald A. Brand

  The Draft UNCITRAL Digest and Beyond is one of the most useful single volumes available on the CISG. It includes the full text of the draft UNCITRAL Digest which catalogues the cases and arbitral awards to date that have interpreted and applied the CISG on an article by article basis. The Digest and Beyond includes also commentary by eminent CISG scholars that addresses issues not yet considered in the cases. With more than 1000 decisions applying the CISG in courts and arbitral tribunals around the world, the UNCITRAL Secretariat charged five CISG experts from a variety of regions with the task of creating a digest of CISG case law. The Digest and Beyond includes the draft UNCITRAL Digest, even before it is released officially by UNCITRAL. It also goes where the authors of the Digest were not allowed to go, given the narrow mandate within which the drafters were asked to work. Its chapters build upon the work of the UNCITRAL Digest. The Digest describes the reasoning and results of existing CISG cases; in The Digest and Beyond, the Digest authors analyze those cases, and discuss issues that have not yet arisen in the case law. Thus, in many ways, The Digest and Beyond provides scholarship that can direct future cases in areas that have not yet been considered by courts and arbitrators as well as in areas in which contradictory court decisions exist.

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  Cases and Materials on U.S. Antitrust in Global Context

  Eleanor M. Fox, Lawrence A. Sullivan, and Rudolph J.R. Peritz

  Much has changed in the last decade, raising the profile of antitrust. We would highlight four key developments. First, the pace of globalization has quickened, making many more markets global. Second, Internet and telecommunications technologies have exponentially increased the speed of communication across the globe, creating new opportunities both for competition and its restraint. Third, antitrust law itself has “gone global,” with approximately 100 countries adopting and maintaining antitrust laws. Fourth, Chicago school economics, which dominated much of the 1980s U.S. antitrust, has been tempered by “post-Chicago” economics, which relaxes many of the faith-in-markets assumptions of the Chicago school and gives greater credence to market realities. We have revised the casebook with these changes very much in mind. We states in the preface to the first edition: “In this book of history, economics, politics, and law, we have steered and eclectic course.” In this editions, we have retained the mix of history, economics, politics, and law. To this, we have added some geo-politics, we have given the book a comparative and international dimension, and we have posed frequent queries meant to focus attention on global or at least cross-border welfare and to trigger your thoughts about the relationship between national sovereignty and the economic welfare of the citizen of the world. Antitrust was one of the first interdisciplinary law school subjects, integrating law, economics and political science. The interdisciplinary pulls of antitrust are even more compelling in the globalized world. The antitrust student and the antitrust lawyer are no mere technician—although they must be that, too. They easily become internationalists.