SLR Online

Professionals dealing with taxes and markets

Essay

Itemized Deductions in a High Standard Deduction World

by  Emily Cauble  

New tax legislation enacted in December 2017 exacerbates the extent to which various itemized deductions, such as the charitable contribution deduction and the home mortgage interest deduction, disproportionately benefit high income individuals. This essay develops this critique and concludes by suggesting paths for reform that should be considered by a future Congress.

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Supreme Court columns with American flag and US Capitol

Essay

Is the Federal Judiciary Independent of Congress?

by  Evan C. Zoldan  

Can Congress command a federal court to rule in favor of a particular party in a pending case? The answer to this seemingly simple question is unsettled. The Constitution permits Congress to enact rules of law that courts must follow; and it permits the courts to decide cases pending before them. Constitutional conflict arises when…

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Pile of document files

Essay

The Costs of Aggregating Administrative Claims

by  Shannon M. Grammel & Joshua C. Macey  

Introduction Aggregation has emerged in the past few years as a critical tool by which agencies can quickly resolve groups of claims that would otherwise languish for years in bureaucratic limbo. The idea is simple: Consolidating many similar claims in a single proceeding would help agencies process claims more quickly, efficiently, and fairly. But aggregation…

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Book and glass loupe

Essay

The Faulty Frequency Hypothesis

Difficulties in Operationalizing Ordinary Meaning Through Corpus Linguistics
by  Ethan J. Herenstein  

Introduction Promising to inject empirical rigor into the enterprise of statutory interpretation, corpus linguistics has, over the past couple years, taken the legal academy by storm. A product of linguistics departments, corpus linguistics is an empirical approach to the study of language through the use of large, electronic, and searchable databases of text called corpora.…

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Block chain network concept on technology background

Essay

Blockchain’s Big Hurdle

by  Riley T. Svikhart  

Blockchain technology can maintain accurate chains of title to securities and other legal instruments in a reliable electronic form. As private industries begin to recognize the cost-saving and risk-reducing potential of this technology, state legislatures are responding. Arizona’s H.B. 2417 is a prototypical state solution. In essence, the law requires parties to treat blockchain-secured records,…

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Investment and Stock Market watchdog

Essay

Leidos and the Roberts Court’s Improvident Securities Law Docket

by  Matthew C. Turk & Karen E. Woody  

For its October 2017 term, the U.S. Supreme Court took up a noteworthy securities law case, Leidos, Inc. v. Indiana Public Retirement System. The legal question presented in Leidos was whether a failure to comply with a regulation issued by the Securities and Exchange Commission (SEC), Item 303 of Regulation S-K (Item 303), can be grounds for a…

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Statue of Confederate Soldier Looking at Copy Space

Essay

Confederate Statute Removal

by  Aneil Kovvali  

Certain state governments have adopted statutes that are designed to prevent city governments from eliminating memorials to Confederate forces and leaders. Critics of these controversial statutes generally focus on the moral issue of preserving statues honoring white supremacy. This Essay highlights a different set of concerns: These statutes suppress the speech of cities while compelling…

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Scrabble Letters

Essay

The Words Under the Words

by  Patrick Barry  

The words lawyers choose can change the decisions people make. Psychologists call the mechanics of this change “framing.” They’ve found, for example, that more people will decide to have a surgery if they are told that the “survival rate is 90%” than if they are told that the “mortality rate is 10%”—even though a survival…

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Faceless hooded anonymous computer hacker

Essay

Government Hacking to Light the Dark Web

Risks to International Relations and International Law?
by  Orin S. Kerr & Sean D. Murphy  

Introduction Government hacking is everywhere. Hackers working for the Russian government broke into computers run by the Democratic National Committee and stole e-mails relating to the 2016 Presidential election. Hackers traced to the Chinese government broke into U.S. government computers and copied personnel files of over 22 million employees. North Korean hackers intruded into Sony…

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Law and justice

Response

Continuities, Ruptures, and Causation in the History of American Legal Culture

by  Amalia D. Kessler  

Henry Vanderlyn, an antebellum lawyer from the small town of Oxford, New York, whom I discuss in Inventing American Exceptionalism, kept a daily diary for a thirty-year period and was in the habit of regaling visitors with selected readings from his collected thoughts. Confident that his visitors eagerly attended to his every word, Vanderlyn never…

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Courthouse facade.

Book Review

Exploring the Origins of America’s ‘Adversarial’ Legal Culture

by  Edward A. Purcell, Jr.  

Introduction Amalia D. Kessler’s Inventing American Exceptionalism is a tour de force of historical imagination, analysis, and synthesis. Asking fresh questions that open new vistas of understanding, her book illustrates some of the complex ways that social factors shape legal thinking on matters ranging from arcane procedural technicalities to fundamental institutional assumptions. Changing social and…

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paper wisdom

Book Review

The Lawyer/Judge as Republican Hero

by  Mark Tushnet  

Introduction Inventing American Exceptionalism tells a two-sided story. On one side is the replacement of the distinctive inquisitorial processes of equity courts with the adversarial ones of common-law courts. The equity courts relied heavily on taking testimony in writing and in secret, freezing the record so that parties could not shape their evidence in light…

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Interior View of the Ornate Supreme Court in Lansing, Michigan.

Book Review

Contextualizing Inventing American Exceptionalism

by  Richard White  

Amalia Kessler’s Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877 is a stunning legal history that is even richer than the author may have intended. I would not have thought that an analysis of the oral adversarial tradition in American law could provide the larger insights that her book does. This is…

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Beige US supreme court columns

Book Review

Introduction

Book Review Symposium on Inventing American Exceptionalism
by  Bernadette Meyler  

How, when, and why did Americans become convinced both that our system of civil justice is adversarial through and through and that adversarialism is normatively desirable? Professor Amalia Kessler’s highly engaging and dauntingly erudite new book, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877, locates the answer to these questions in a…

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Programming code abstract technology background of software deve

Essay

Transformative Use in Software

by  Clark D. Asay  

Introduction Fair use is copyright law’s most important defense against claims of copyright infringement. Major corporations depend on it to pursue a variety of technological innovations; universities rely on it for a number of educational purposes; and innovative parties frequently resort to it in creating works that build upon the creativity of others. In short,…

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manhattan office building

Essay

A Better Way to Revive Glass-Steagall

by  John Crawford  

Introduction The financial crisis of 2007-2008 repeatedly forced regulators to face terrible choices between risking catastrophic contagion by letting particular firms or markets fail, and intervening to bail them out. One explanation of why these dilemmas arose was that financial firms were “too big to fail.” Nearly a decade after the onset of the crisis,…

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Old Cadillac Eldorado

Essay

‘Cadillac Compliance’ Breakdown

by  Todd Haugh  

Introduction The recent defeat device scandal at Volkswagen, in which VW engineers created and installed a computer algorithm to cheat emissions testing on over eleven million automobiles, brings together two things I spend time thinking about: white collar crime and cars. While that may seem like an odd combination, VW’s troubles happen to marry my…

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Neil Gorsuch

Essay

Before the Robe

Judge Neil M. Gorsuch
by  Mark C. Hansen  

The Honorable Neil M. Gorsuch was not the distinguished silver-haired jurist we see now when he walked through the doors of our start-up law firm in the fall of 1995. He was, like the other supremely talented young lawyers we hired to help us build a practice in the attorney-infested (or should I say shark-infested?)…

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Byron White United States Courthouse in Denver

Essay

A Personal Reflection on Judge Neil M. Gorsuch from a Former Colleague

by  Michael W. McConnell  

I served with Judge Neil Gorsuch on the Court of Appeals for the Tenth Circuit for over three years, before I left the bench to teach constitutional law at Stanford. I sat with him in about fifty cases. Sometimes we disagreed, strongly. More often, we agreed. I want to share my impressions of Judge Gorsuch…

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Closeup of First Amendment to the United States Constitution

Mainstream Jurisprudence and Some First Amendment Problems

Judge Neil M. Gorsuch on Free Expression
by  Brian C. Baran & Nathaniel Rubin  

Introduction On the 2016 campaign trail, then-candidate Donald Trump promised he would pick a Supreme Court nominee in the mold of the late Justice Antonin Scalia. To this end, President Trump narrowed his candidate shortlist to three federal appellate judges who had the approval of the Heritage Foundation and Federalist Society, and whom the press…

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