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  Cases and Materials on European Union Law

  George A. Bermann, Roger J. Goebel, William J. Davey, and Eleanor M. Fox

  The study of European Community law, always of interest, since the Community’s creation, has taken on special importance in recent years. As the Community perfects its goal of a true internal market and monetary union, while contemplating an unprecedented enlargement to the east and profound constitutional reform, American Lawyers and law students naturally seek to learn more about the Community and its law. With the advent of the European Union in 1993, following the Maastricht Treaty, the European-level legal framework has become still more complex. Each of the Union’s three “pillars” (Community law, common foreign and security policy, and police and judicial cooperation in criminal matters) has generated its own “law.” We may truly speak today about both European Community law and European Union law, though the former predominates in this casebook and in the legal literature more generally. This casebook is intended to provide a basic understanding of the Community and Union, their structures, goals, fields of action, achievements and aspirations, as well as to lay a foundation for further research, analysis and legal writing. There are many valid reasons to study Community and Union law. We present here three of the most important ones. The most pragmatic of them is that the Community has become the largest trading partner of the US, constitutes the largest overseas single market in the world, and represents a major site of investment for US firms. US lawyers, both international house counsel and outside counsel, can no longer afford to possess only a limited knowledge of Community structure, law-making processes and substantive law. Community competition and trade law have long been staples of international practice. Today, the European Community’s harmonization of health, safety and technical standards, banking, securities and company law, environmental and consumer protection measures, and actions in the field of agricultural and social concern to US interests and their lawyers. The Community’s achievement of an economic and monetary union, with a single currency and a single monetary policy, is also of evident importance to the international business and legal world. Second, Community and Union law are rewarding fields for comparative law study. This has long been true in competition and trade law, where academics and practitioners have found provocative points of comparison and contrast. Today a rich source of comparative study is to be found in the Community programs for harmonization of laws. In some fields, as in environmental and securities law, the Community has been significantly influenced by US models, but still strikes certain different notes. In other fields, such as banking, company law, consumer protection and social policy, the Community has taken quite a different path from the US, and its law has had its echoes in American law. Constitutional comparisons and contrasts between the US and EU have acquired unprecedented interest among comparatists. The divergences between US and Community law have provoked thoughtful reflection on the context and underlying values of each system. They should continue to do so. Third, Community law provide a laboratory for study of law formation: the development of an entire legal system in modern times. The study includes the Community’s constitutional framework, its institutions, substantive legislation and judicial law, and the constant interplay of policy and politics in an evolving federal-type system, one comprised of fifteen (and soon more) nations having many commonalities but also divergent systems, demographics and interests. The casebook rewards the student who has come to the course for any or all of these reasons. The book covers virtually all major fields of Community law. (We regret that, despite the book’s increase in size over the first edition, space considerations prevented coverage of certain important topics, such as public procurement, transport, agriculture and telecommunications law.) The notes and questions have been crafted to facilitate reflection on how and why the Community and Union institutions, and especially the Court of Justice and Court of First Instance, have reached their legal and policy conclusions. The text and notes make frequent comparisons with US law. The authors hope that the reader will thereby achieve not only a good comprehension of Community and Union law, but also a critical one. The casebook is intended of use in US law schools, but it may also be suitable for faculties in Europe and elsewhere. Our casebook follows traditional US teaching methods which give central attention to primary materials, such as legislation and court judgments, inviting students to examine these materials critically though focused questions. Accordingly, Court of Justice and Court of First Instance judgments and Community legislation are subjected to the same kind of analytic review as US laws and Supreme Court opinions would be in a standard constitutional law casebook. We hope that European professors and students will find that the process of analytic examination of judgments and legislation through questions will assist in a more reflective comprehension of Community rules and judicial doctrines. The preparation of this edition and the teaching of the subject in general has been complicated by the decision implemented in the 1998 Treaty of Amsterdam (effective 19990 to renumber the articles of the treaties establishing both the European Community (EC Treaty) and the European Union (TEU). For instance, generations of Community law scholars have written and discussed the impact of Article 30’s ban on quantitative restrictions and measures with equivalent effect and the exceptions thereto in Article 36, only not to be faced with a numbering system that has the exception in Article 30 and the ban in Article 28. Likewise, probably the most familiar EC Treaty articles to American lawyers—the competition provisions in Articles 85 and 86—have become Articles 81 and 82. We have, of course, used the new numbering system in our text, with indications in parentheses of the old numbers. Similarly, in cases where we have kept the old article numbers, we have indicated the new numbers in brackets. While this new edition was in preparation, new amendments to bot the EC Treaty and the TEU were agreed to in the Treaty of Nice, signed in December 2000. (The proposed amendments will already undermine the purity of the new numbering system by adding, for example, new Articles 11a and 181a.) Where significant, we have indicated in the text and notes the changes that will be made if and when the Treaty of Nice is ratified. As of November 2001, only Denmark, France and Luxembourg had deposited their ratifications, although the process of ratification was at an advanced stage in several other Member States. Unfortunately, in June 2001, Irish voters rejected the Treaty, reflecting the now longstanding complaints that there is too great a distance between leadership and the people and, notwithstanding impressive institutional reform in recent years, still something of a “democratic deficit.” The Selected Documents, which accompanies the casebook, contains the EC Treaty (as last amended by the Treaty of Amsterdam in 1999), the TEU (likewise as amended at Amsterdam), followed by (a) a convention table of article numbers for both treaties showing the pre- and post-Amsterdam numbering and (b) the 2000 Treaty of Nice which, as of this writing, remains to be ratified. The Nice Treaty consists primarily of amendments to the EC Treaty and TEU, and users are strongly encouraged when considering any treaty article to turn to the Nice Treaty (Document 4) for an indication of how, if at all, that particular provision would be altered upon the Nice Treaty’s entry into force. (Where highly significant, the projected changes will in any event be brought to the reader’s attention in text and notes throughout the book.) Because the treaties constitute the foundation of the Community legal system, they should in any case be read in tandem with the casebook as and when reference to treaty articles is mad. Editors’ note in the Selected Documents try to make the interplay between these texts as clear as possible. The Selected Documents volume also contains a large sample of important secondary legislation, excerpted lightly and with care. Students will profit from working with these complex legislative texts. The accessibility of these important Community law documents should also be helpful in research.

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  Administrative Law and Regulatory Policy: Problems, Text, and Cases

  Stephen G. Breyer, Richard B. Stewart, Cass R. Sunstein, and Matthew L. Spitzer

  Administrative Law and Regulatory Policy: Problems, Text, and Cases, Fifth Edition, provides a solid foundation to help students master the principles of Administrative Law in an era of change. This renowned casebook retains the strengths that have made it so popular through previous editions: impeccable authorship logical organization that reflects the major components of administrative procedure and reveals the interaction between doctrine and procedure as well as bureaucratic and political factors at work plentiful notes and problems that reinforce the cases and aid in surveying administrative regulation exceptionally insightful historical material on the rise of regulation And The role of the New Deal in changing American government full coverage of the economic aspects of regulatory control, including cost-benefit analysis detailed treatment of the goals and performance of the regulatory state, including regulatory aspirations, successes, and failures, To give students a deep and rich understanding of the subject new information on the regulation of telecommunications detailed new material on important developments regarding the separation of powers, energy policy And The environment, and administrative law issues raised by potential conflicts new case study section on the joint U.S. Supreme Court/D.C. Circuit decision on the nondelegation doctrine in the context of the Clean Air Act unique discussion of the use of cost-benefit analysis in the Bush and Clinton administrations, not covered by any other casebook, And The legal challenges likely to arise in the next decade additional cases (Brown & Williamson, American Trucking) and new developments regarding the Chevron doctrine, The FDA's effort to regulate tobacco, The status of interpretive rules, And The power of the EPA more background information on cases for a fuller exploration of the issues.

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  Judicial Independence at the Crossroads: An Interdisciplinary Approach

  Stephen B. Burbank and Barry Friedman

  This new volume aims to break down the disciplinary barriers that have impeded scholarly analysis of, and public policy debates concerning, a subject of immense importance to the US and other developed and developing democracies. Judicial Independence at the Crossroads: An Interdisciplinary Approach is a path-breaking collection of essays by leading scholars from the disciplines of law, political science, history, economics and sociology. As a result, the essays represent a strongly interdisciplinary perspective that enables the reader to identify common myths in scholarly and public discussions of judicial independence, and to engage more effectively with the key debates. The editors also highlight progress made towards a shared understanding and the considerable gaps in analysis and understanding that remain. This book offers both scholars and politicians a guide to more fruitful research and sounder public policy at a time when federal judicial selection is one of the most contentious political issues in Washington. Given the explicitly comparative perspective of some of the chapters, the volume will be important reading not only for scholars and policy makers in the US but also for those interested in the topic in any other country that seeks to establish or reaffirm the importance of the rule of law.

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  Civil Litigation in New York

  Oscar G. Chase and Robert A. Barker

  It is gratifying to present the fourth edition of our casebook. This new edition is necessitated by the law’s many changes since the third edition appeared, by the continuing use of Civil Litigation in New York as the primary teaching vehicle for contemporary courses on New York civil practice, and by the importance of the subject matter. Reflected in the fourth edition are legislative and case-law changes to the “commencement of filing” system, the statutes of limitations, and disclosure, among others. . . . Civil litigation in New York is complex and demanding. It calls on such advocacy skills as oral argument, brief writing and cross-examination, but even more does it demand familiarity with the “law” of litigation. The purpose of this book is to help you learn that law in the context in which an advocate must apply it. We hope that you will not only become familiar with the rules of New York practice but that you will develop a sense of how they can be creatively applied. To that end we have included in each chapter litigation problems which are designed to help you put the law into a practical perspective. The problems are based on realistic situations (sometimes on actual cases) and therefore raise the sorts of difficult issues which can arise in the course of any action. Usually, you will find that we have presented the problem prior to the material which bears on it. This will hopefully make the material less abstract and more involving. Many of the problems do not have a single answer which is correct in an absolute sense. As with most legal issues there are various possible solutions, each with its own supporting arguments. Please approach them in that spirit. In keeping with its purposes, the book is organized roughly along the path litigation normally takes, starting with the rules governing the choice of forum. Since there is no route which all lawsuits must follow, and since there are some rules of litigation (e.g., those governing motion practice) which are relevant to several stages of a lawsuit, you should not take the linear organization we have adopted as exemplifying all lawsuits or as an approach you would always follow in practice. Use it, rather, to gain and keep a general sense of litigation as a process with a beginning, middle and clearly defined goal. The variety of paths litigation can take brings us to another point about the study of it. The flexibility of modern civil procedure, including that of New York, allows and therefore requires the lawyer to make frequent tactical choices. Should one make a particular motion? Obtain a provisional remedy? Seek discovery? If so, what kind? How should the pleading be drafted? It is our view that an effective advocate knows what the ethical choices are in every situation and dose his or her best to pick the alternative which will maximize the client’s chances of success. Thus, as you read the cases and problems which follow, we urge you to think about and evaluate the choices that the litigants made. The management of litigation system in pursuit of success is not the only challenge to the student or attorney. Equally fulfilling, if not more so, is participation in the ongoing effort to reform and improve the system. This book goes to press during a period of widespread criticism of civil litigation as a method of resolve disputes. How the system can and should be changed in response to its critics is therefore a particularly timely issue now; there is no doubt that the search for improvement will continue during the professional lifetime of today’s student. Thus, these materials frequently encourage you to step back from the process and ask “How can we make this better?”

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  Regulation of Lawyers: Problems of Law and Ethics

  Stephen Gillers

  The ideas in this book and the course for which it is assigned will govern all of your professional life. Here you learn the rules you have to live by and the consequences if you ignore them. Other courses teach lessons that bear on your clients’ problems more directly. This course is for you. Unless you work in the areas of legal malpractice, lawyer discipline, or the like, you and not your clients will be the immediate beneficiary of what you learn here. Your clients will be indirect beneficiaries. The subject of this course can be discussed from at least three perspectives. At the precipice of your career, perhaps most important are rules that constrain your professional behavior. In such areas as competence, fees, marketing, confidentiality, conflicts of interest, negotiation, and the attorney-client relationship, what may you do, how may you behave—with confidence that your conduct will not land you before a disciplinary committee, lead to a civil lawsuit, invite court sanction, forfeit your fee, or damage your reputation? Even to ask this question should be sufficient to forewarn you that the “ethics” in legal ethics is not merely about being a morally good person. It is also about being a professionally safe lawyer. For the fact is that the law business is heavily regulated, like banking, securities, and pharmaceuticals. The regulations are becoming increasingly complex. They have already led to creation of a new phrase—the law governing lawyers—lest anyone is fooled by the word “ethics” into believing that the subject is mostly how to be liked or respected. You make two mistakes at your peril. First, do not believe that the right way to act—toward clients, courts, adversaries, or colleagues—will be intuitively obvious. Sure, sometimes it will be. But no one needs to teach you not to lie or steal in professional life, and certainly not in 1,000 pages. The rules here are often not self-evident; they may even be counterintuitive and can be exquisitely subtle in their application. Second, do not assume that the law office that hires you will provide all the protection you need against missteps. Good law offices do have systems to detect and avoid improper conduct. But they are not perfect, and, anyway, the duty to act properly is generally not delegable. The individual responsibility of each lawyer cannot be entrusted to a boss. In the end, you’re on your own. The second perspective from which to view the law governing lawyers is the relationship between the profession and society. The rules that lawyers impose on themselves and that are imposed on them, taken together, help define the nature and work of the entire profession and therefore the behavior of our legal institutions and the quality of our social justice. For example, a rule that allows lawyers to advertise will influence the conduct of individual members of the bar. But it may also affect the size of legal fees and whether or how large categories of people use lawyers. Similarly, a rule that prohibits or requires a lawyer to reveal certain kinds of information about a client in order to protect others from harm will control that lawyer’s own behavior, but it may also affect which client populations use lawyers, and what information clients are willing to give them. In short, nearly every rule, whatever its source, has social and political consequences beyond any single representation or practice, although there is often fierce disagreement over what these consequences will be and whether they should be avoided or encouraged. As you are about to go off into law practice, you may be more interested in such questions as “How do I behave?” and “How can I stay out of trouble?” than in asking, “What are the consequences to society and justice if one or another version of a particular rule is applied to America’s more than 800,000 practicing lawyers?” Still, the last question is important and, if not as immediate, will surely arise in the course of your professional life. Many readers of this book will someday be in positions that require them to address the broader question. It should come as no surprise that practicing lawyers have intense feelings about the issues in the area of lawyer regulation. They see intuitively how decisions about them can later their professional lives. Both kinds of questions, but more so the second, engender different, and sometimes vehement, responses from practicing lawyers. Why? In part, because to answer them, we must call upon political and moral values more fundamental than the “ethics” that inform various codes. And, of course, the political and moral values of different people may differ fundamentally. In addressing these questions, we should try to be honest about the interests we mean to protect. Those of society generally? The legal profession’s? The interests of lawyers in practices like the one we have or expect to have? Those of the particular client populations we serve? Our firm’s? Our own? Responding honestly may not entirely endear the bar to the public, but it may help mitigate what often appears to be an ingrained American suspicion, if not hostility, toward lawyers. Tracing that attitude in history and the popular culture is Leonard Gross, The Public Hates Lawyers: Why Should We Care?, 29 Seton Hall L. Rev. 1405 (1999). Law school and law practice, it is sometimes said, encourage more rather than less self-interestedness in answering the questions raised here. In transition as you are, your answers to many of them will likely vary from what they would have been before you entered law school and will likely be still different five years after you graduate. I wrote that rules governing the practice of law can be discussed from three perspectives. I have so far listed two. The third is the effect of lawyers’ work on the people who do the work, that is, the effect of role on self. For example, a rule that requires silence though it means that another will suffer injustice will take its toll on those who must obey it. As men and women, we consider it laudable to speak up to prevent injustice to others. As lawyers, we may be forbidden to do so. How can we reconcile these two positions, not intellectually or theoretically but personally, within ourselves? A similar point can be made about the rule that requires lawyers diligently to pursue the lawful goals of their clients, even if these goals (or the legal strategies used to achieve them) offend the lawyer’s values. Or consider the oft-cited schism between the qualities of personality that law office culture tends to reward and the ones encouraged in personal and family life. Do you have t learn behavior in order to survive in professional environments that will make you downright unpleasant in social and familial ones—unless you also learn how to “leave it at the office”? One thinks of the common retort of a lawyer’s law relatives: “Oh, stop talking like a lawyer!” Many topics in this book lend themselves to discussion of the effect of role on self. I hope you are able to address this issue in class, but certainly they are worthy of self-reflection throughout your career, starting now. This is the sixth edition of this book. I started work on the first edition in 1982. Between editions I spend an hour or two each weeks planning for the next one. You get to thinking a lot about what a casebook is and can be when you live with one for so long. The book’s primary function is to provide information, but that’s just the beginning. The minimum editorial task would allow me to pick some good cases and other materials, edit them, order them logically, add interstitial notes and questions, and put the product between covers. Voila! A casebook. Or course, one must begin this way, but if nothing more were possible (even if not required), I doubt that I would have continued at it this long. I’d grow bored. Luckily, more is possible while still serving the book’s objective—to teach the subject. For starters, we can strive for humor, variety, clarity, and engaging writing. The enterprise will not likely support the extended charm of a Hazlitt essay or the quirkiness of a Vonnegut novel—assuming I had the talent to achieve either, in which case I’d probably be in a different line of work—but a casebook is a book, after all, and should have, well, personality, an authorial presence in so far as possible. So you may find the tone or voice in my contributions to this volume (and even some of the editorial selections) different from what you’re accustomed to encountering in the genre. That’s what make the book mine. The legal profession is a culture of storytellers and stories. Harrison Tweed, a president of the Association of the Bar of the City of New York, once said: “I have a high opinion of lawyers. With all their faults, they stack up well against those in every other occupation or profession. They are better to work with or play with or fight with or drink with than most other varieties of mankind.” These words are in fact inscribed on a wall at the Association’s headquarters. As a young lawyer, I thought Mr. Tweed was a little over the top, if not downright sanctimonious, in making so grandiose a claim. At that time in my life, I was inclined to agree with the character in George Bernard Shaw’s play The Doctor’s Dilemma who said “all professions are conspiracies against the laity.” To some extent, I still find Tweed excessive, though not quite as passionately as when I was starting out, and Shaw apt, even if hyperbolic. And yet. And yet Tweed has a point. The profession and its members are fascinating to study and its stories are fascinating to hear. Like any culture, understanding it requires density. We must know a thousand small things about life within the society of lawyers, not merely two or three big things, if we are going to understand it truly. While this book is not a sociological study or lawyers or of legal institutions, I have tried to incorporate current events in the materials and to offer you note cases—little stories, really—exemplifying multiple variations on particular themes. I believe that these will make the culture of law practice more real for you and thereby better help you understand the rules that define it. Finally, I invite your views on the book. What was dull? What worked well? How can the book be improved? Have you encountered a story somewhere (true or fiction) that you think nicely highlights an issue? You can reach me in several ways. By snailmail at NYU School of Law, New York, NY 10012. By fax at (212) 995-4658. Send e-mail to stephen.gillers@nyu.edu. All comments will be acknowledged.

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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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  Sales Law: Domestic and International

  Clayton P. Gillette and Steven D. Walt

  This book describes and analyzes the law of sales under Article 2 of the Uniform Commercial Code ("UCC") and under the United Nations Convention on Contracts for the International Sale of Goods (the "CISG" or "Convention") ... Rather than restating self-explanatory provisions or cases applying them, its treatment is analytic. Students are given a framework that they can use to assess important aspects of the subject and apply to provisions not discussed explicitly.

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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 facts reported by the Staff of the Joint Committee on Taxation: In the period from the enactment of the Tax Reform Act of 1986 until the end of the year 2000, Congress enacted nearly 100 different laws amending the Internal Revenue Code, not counting legislation affecting Social Security, railroad retirement, unemployment compensation, tariffs or customs duties, or the public debt limit. The Code currently contains about 700 provisions affecting individuals and more than 1,500 provisions affecting businesses. As of May 2000, the Code contained 1.4 million words making it more than six times longer than Crime and Punishment and considerably harder to parse. The regulations contained another 8.6 million words, spanning almost 20,000 pages. During calendar year 2000, the Treasury and IRS published 60 Treasury Decisions (containing final and temporary regulations), 45 sets of proposed regulations, 58 Revenue Rulings, 49 Revenue Procedures, 64 Notices, 100 Announcements, 2,400 Private Letter Rulings and Technical Advice Memoranda, 10 Actions on Decisions, 240 Field Service Advice Documents, and a partridge in a pear tree. For 1999 an individual filing the income tax Form 1040 could file a return with 79 lines, with 11 schedules totaling 443 lines. The schedules refer you to 19 additional worksheets. The instructions to the Form 1040 filled 144 pages of rather small type. In addition to Form 1040, 18 additional forms are commonly used by individuals. Meanwhile, the courts have decided tens of thousands of tax cases. In 1999 alone, nearly a thousand tax bills were introduced in the Congress. 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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  The Law of Democracy: Legal Structure of the Political Process

  Samuel Issacharoff, Pamela S. Karlan, and Richard H. Pildes

  The Law of Democracy offers a systematic exploration of the legal construction of American democracy. The book brings together a cluster of issues in law regulating the design of democratic institutions, and the book employs a variety of methods - historical, comparative, theoretical, doctrinal - to explore foundational questions in the theory and practice of democracy. Covered issues include the historical development of the individual right to vote; current struggles over racial gerrymandering; the relationship of the state to political parties; the constitutional and policy issues surrounding campaign-finance reform; and the tension between majority rule and fair representation of minorities in democratic bodies.

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  Mountain or Molehill?: A Critical Appraisal of the Commission White Paper on Governance

  Christian Joerges, Yves Mény, and Joseph H. H. Weiler

  Reform is persistently on the agenda of the European Union (EU). As this volume goes to press, we can observe three simultaneous processes of change under way. Forms of evolutionary change continue to alter the practice of both policy and decision-making in the EU. Deliberate attempts at experimental change are being introduced into the way the EU works. And the Convention has just opened to canvass options for engineered changes to the treaties on which the EU is based. Each of these processes of change affects the others, making the EU a constant puzzle to understand and requiring both commentators and practitioners to re-examine their assumptions. This collection of essays offers some provocative reflections on the ways in which 'governance' has apparently emerged as an organising concept for analysing this continuous process of change in the EU. The collection was itself prompted by the decision of the European Commission to open a debate on European Governance through the White Paper published in July 2001. In preparing this White Paper, the Commission invited one and all to join it in analysing both the ingredients of change and the possible remedies to improve the performance of the EU institutions. The agenda is a huge one, as the White Paper itself demonstrates, with its many and varied suggestions for reform. The agenda is also a controversial one, since there is no single predominant recipe. Moreover, there is no single diagnosis of what the ingredients of change are or what is the most appropriate way to mix them together. It is all the more important, therefore, that we, in the academic community, should respond to the challenges put to us by the changing world of practice. Consequently, in assembling this collection we gave no guidelines to our contributors. Thus, the resulting eclectic range of observations and provocations is offered herewith to further intellectual debate. The participants in this volume speak for themselves but also as members of a scholarly community with a very deep concern for our shared subject, namely, the quest for a process of European integration that works, that can generate worthwhile collective action, and that can grow stronger roots in the European societies in which it is grounded. The launch pad for this collection was the European University Institute in Florence. Its realisation is the fruit of a continuing collaboration with the Jean Monnet Program at Harvard Law School and NYU School of Law.

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  The Myth of Ownership: Taxes and Justice

  Liam B. Murphy and Thomas Nagel

  In a capitalist economy, taxes are the most significant instrument by which the political system can put into practice a conception of economic justice. But conventional ideas about what constitutes tax fairness--found in the vigorous debates about tax policy going on in political and public policy circles, in economics and law--are misguided. In particular, the emphasis on distributing the tax burden relative to pretax income is a fundamental mistake. Taxation does not take from people what they already own. Property rights are the product of a set of laws and conventions, of which the tax system forms a central part, so the fairness of taxes can’t be evaluated by their impact on preexisting entitlements. Pretax income has no independent moral significance. Standards of justice should be applied not to the distribution of tax burdens but to the operation and results of the entire framework of economic institutions. The result is an entirely different understanding of a host of controversial issues, such as the estate tax, the tax treatment of marriage, “flat” versus progressive taxes, consumption versus income taxes, tax cuts for the wealthy, and negative income taxes for the poor.

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  Concealment and Exposure: And Other Essays

  Thomas Nagel

  Thomas Nagel is widely recognized as one of the top American philosophers working today. Reflecting the diversity of his many philosophical preoccupations, this volume is a collection of his most recent critical essays and reviews. The first section, Public and Private, focuses on the notion of privacy in the context of social and political issues, such as the impeachment of President Clinton. The second section, Right and Wrong, discusses moral, political and legal theory, and includes pieces on John Rawls, G.A. Cohen, and T.M. Scanlon, among others. The final section, Mind and Reality, features discussions of Richard Rorty, Donald Davidson, and the Sokal hoax, and closes with a substantial new essay on the mind-body problem. Written with characteristic rigor, these pieces reveal the intellectual passion underlying the incisive analysis for which Nagel is known.

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  Building a Better Democracy: Reflections on Money, Politics, and Free Speech: A Collection Of Writings

  Burt Neuborne

  Collection of writings on Buckley v. Valeo . . . on the financing of federal elections, and on the role of money and politics in our democracy.

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  The Enemy Within: Intelligence Gathering, Law Enforcement, and Civil Liberties in the Wake of September 11

  Stephen J. Schulhofer

  The federal government, in the name of fighting a war on terrorism, has acquired comprehensive and wide-ranging new surveillance and law enforcement powers. While many of the new measures reflect legitimate concerns and the elusive nature of the terrorist threat, Stephen J. Schulhofer argues that many of these measures needlessly sacrifice important freedoms and might end up hampering, rather than advancing, the government's antiterrorist efforts. He points out that many of these new powers are not limited to terrorism cases, that many are not relevant to international terrorism cases at all, and that many do not require suspicion of any kind that the person being investigated is involved in criminal activity. And often, he notes, the executive branch can exercise these new powers unilaterally, without the supervisory control and judicial oversight that were taken for granted until September 11.

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  God, Locke, and Equality: Christian Foundations of Locke’s Political Thought

  Jeremy Waldron

  This is a concise and profound book from one of the world's leading political and legal philosophers about a major theme, equality, and the proposition that humans are all one another's equals. Jeremy Waldron explores the implications of this fundamental tenet for law, politics, society and economy in the company of John Locke, whose work Waldron regards 'as well-worked-out a theory of basic equality as we have in the canon of political philosophy'. Throughout the text, which is based on the Carlyle Lectures given in Oxford in 1999, Jeremy Waldron discusses contemporary approaches to equality and rival interpretations of Locke, and this dual agenda gives the whole an unusual degree of accessibility and intellectual excitement, of interest to philosophers, political theorists, lawyers and theologians around the world.

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  Peoples' Rights

  Philip G. Alston

  The right to self-determination has been a driving force in international law and politics through much of the post-World War II period. In the 1970s it was joined by a number of other human rights attributed to peoples rather than to individuals, including rights to development, peace, a clean environment, and humanitarian assistance. In this volume the current and future significance of these so-called third-generation solidarity rights are examined by leading experts.

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  Cases, Problems, and Materials on Bankruptcy

  Douglas G. Baird, Thomas H. Jackson, and Barry E. Adler

  The new edition of Cases, Problems and Materials on Bankruptcy retains the sophistication of the original Baird and Jackson casebook and has been refashioned so that it is easier to teach. Law school casebook that offers a clear explanation of the bankruptcy process while simultaneously challenging the student with commentary and questions that explore both new and classical bankruptcy themes. Part of the University Casebook Series, it features expertly edited cases, text and questions for classroom discussion.

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  Civil Procedure: Cases and Materials

  John J. Cound, Jack H. Friedenthal, Arthur R. Miller, and John E. Sexton

  Updated to include a contemporary perspective, this popular classic casebook covers important developments in several areas of civil procedure and incorporates student and professor comments on previous editions. While it retains a focus on procedural evolution, the new ninth edition also discusses cutting-edge issues, such as transnational litigation and technology's effect on jurisdictional doctrine. To make way for new material, this edition abbreviates a few older cases and commentaries and streamlines some notes.

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  The EU and the WTO: Legal and Constitutional Issues

  Gráinne de Búrca and Joanne Scott

  The essays in this volume attempt to explore and elucidate some of the legal and constitutional complexities of the relationship between the EU and the WTO, focusing particularly on the impact of the latter and its relevance for the former. The effect of WTO norms is evident across a broad range of European economic and social policy fields, affecting regulatory and distributive policies alike. A number of significant areas have been selected in this book to exemplify the scope and intensity of impact, including EC single market law, external trade, structural and cohesion funding, cultural policy, social policy, and aspects of public health and environmental policy. Certain chapters seek to examine the legal and political points of intersection between the two legal orders, and many of the essays explore in different ways the normative dimension of the relationship between the EU and the WTO and the legitimacy claims of the latter.

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  The European Court of Justice

  Gráinne de Búrca and Joseph H. H. Weiler

  This collection of essays examines an institution that continues to be of central importance to students and scholars of European Union law and policy. The essays develop new avenues of analysis and perspectives, including a philosophical, a sociological and a gender-based analysis.

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  Expanding the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society

  Rochelle C. Dreyfuss, Diane L. Zimmerman, and Harry First

  Many countries have already agreed to accept minimum standards of intellectual property protection and enforcement. But how much control should innovators exercise over their creative works or inventions? This new collection of essays analyzes and develops this issue, which has assumed considerable importance in our new knowledge-based economy. Expanding the Boundaries of Intellectual Property has an international perspective, written by judges and leading academics from the US and Europe; it focuses on intellectual property rights as a whole, with the emphasis on the common theoretical underpinnings of copyright, patent and related rights (trade secrets, contract rights); it identifies expanding rights as a trend that has important and novel pro- and anti-competitive implications.

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  The Internal Governance and Organizational Effectiveness of Labor Unions: Essays in Honor of George Brooks

  Samuel Estreicher, Harry C. Katz, and Bruce E. Kaufman

  This volume provides a framework for evaluating issues of the internal governance and organizational effectiveness of labor unions. Little systematic attention has been paid to labor unions as organizations, as a prevailing assumption of the literature is to treat unions as simple institutions with well-defined objectives. This volume collects some of the best work on issues of union democracy and union funding, with the objective of identifying the factors in understanding modern labor and employment laws. It is edited by two prominent legal scholars that promote (and retard) the organizational effectiveness of these organizations. The book also offers some comparative assessments by including chapters on Canada, France, Germany, and the United Kingdom.

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  Constitutional Culture and Democratic Rule

  John A. Ferejohn, Jack N. Rakove, and Jonathan Riley

  This volume investigates the nature of constitutional democratic government in the United States and elsewhere. The editors introduce a basic conceptual framework which the contributors clarify and develop in eleven essays organized into three separate sections. The first section deals with constitutional founding and the founders' use of cultural symbols and traditions to facilitate acceptance of a new regime. The second discusses alternative constitutional structures and their effects on political outcomes. The third focuses on processes of constitutional change and on why founders might choose to make formal amendments relatively difficult or easy to achieve. The book is distinctive because it provides comprehensive tools for analyzing and comparing different forms of constitutional democracy. These tools are discussed in ways that will be of interest to students and readers in political science, law, history and political philosophy.

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  Mass Imprisonment: Social Causes and Consequences

  David W. Garland

  This major new volume of papers by leading criminologists, sociologists and historians, sets out what is known about the political and penological causes of the phenomenon of mass imprisonment. Mass imprisonment, American-style, involves the penal segregation of large numbers of the poor and minorities. Imprisonment has become a central institution for the social control of the urban poor. Other countries are now looking to the USA to see what should be learned from this massive and controversial social experiment. This book describes mass imprisonment's impact upon crime, upon the minority communities most affected, upon social policy and, more broadly upon national culture. This is a book that all penologists and policy makers should read.

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  The Culture of Control: Crime and Social Order in Contemporary Society

  David W. Garland

  The past 30 years have seen vast changes in our attitudes toward crime. More and more of us live in gated communities; prison populations have skyrocketed; and issues such as racial profiling, community policing, and “zero-tolerance” policies dominate the headlines. How is it that our response to crime and our sense of criminal justice has come to be so dramatically reconfigured? David Garland charts the changes in crime and criminal justice in America and Britain over the past twenty-five years, showing how they have been shaped by two underlying social forces: the distinctive social organization of late modernity and the neoconservative politics that came to dominate the United States and the United Kingdom in the 1980s. Garland explains how the new policies of crime and punishment, welfare and security—and the changing class, race, and gender relations that underpin them—are linked to the fundamental problems of governing contemporary societies, as states, corporations, and private citizens grapple with a volatile economy and a culture that combines expanded personal freedom with relaxed social controls. It is the risky, unfixed character of modern life that underlies our accelerating concern with control and crime control in particular. It is not just crime that has changed; society has changed as well, and this transformation has reshaped criminological thought, public policy, and the cultural meaning of crime and criminals. David Garland’s The Culture of Control offers a brilliant guide to this process and its still-reverberating consequences.