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Rebecca C. Morgan, The Future of Elder Law. NAELA Quarterly Winter, 1999 President’s Message, 12 NAELA Quarterly 2 (2010)Clicking on the button will copy the full recommended citation.
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Andrew D. Appleby, For the Love of the Game: The Justification for Tax Exemption in Intercollegiate Athletics, 44 John Marshall Law Review 179– (2010)Clicking on the button will copy the full recommended citation.
Intercollegiate athletics are a fundamental part of the American college experience. Nothing else unites and impassions entire campuses while providing educational opportunities to thousands of students who might not otherwise be able to attend college. Congress and the IRS have long recognized the immense educational value of intercollegiate athletics and have properly exempted intercollegiate athletics from federal income taxation. However, a few vocal critics have overreacted to escalating broadcasting agreements and coaching salaries, often without stepping back to examine these transactions in a broader tax policy context. This Article does just that, and demonstrates that longstanding tax exemption is undeniably justified in intercollegiate athletics.
This Article begins in Part I with an overview of tax exemption fundamentals, including a discussion of the tax policy justifications for tax exemption. Part II provides a brief history of tax exemption for intercollegiate athletics, as well as an overview of the current legislative posture. Part III provides an analysis of tax exemption in intercollegiate athletics. This part illustrates that intercollegiate athletics satisfy all the requirements for tax exemption, and that even activities such as big-time D-I football and basketball very likely avoid the Unrelated Business Income Tax (UBIT). Additionally, this part demonstrates that tax exemption is justified for intercollegiate athletics under several tax policy justifications, and that intercollegiate athletics also fall outside the UBIT justifications. This part concludes with a proposal to clarify that intercollegiate athletics should remain fully exempt from federal income taxation.
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Rebecca C. Morgan, Introduction, Teaching Elder Law, 40 Stetson L. Rev. 1 (2010)Clicking on the button will copy the full recommended citation.
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Allison D. Burroughs et al., Off-label Promotion: Government Theories of Prosecution and Facts that Drive Them, 65 Food & Drug Law Journal 555 (2010)Clicking on the button will copy the full recommended citation.
This article examines the U.S. government's aggressive and novel legal strategies in prosecuting pharmaceutical and medical device manufacturers for the off-label promotion of approved products. The authors highlight a fundamental tension between these enforcement actions and the public interest in disseminating scientific information about off-label uses, which are often a vital component of medical practice. The primary legal tool for these prosecutions has been the False Claims Act (FCA), frequently initiated by whistle-blower (qui tam) lawsuits alleging that off-label promotion induces fraudulent claims to government healthcare programs like Medicare and Medicaid. While civil actions under the FCA can result in substantial fines, the government often pursues parallel criminal investigations under the Federal Food, Drug, and Cosmetic Act (FDCA) to leverage more severe penalties. The article details the two main criminal prosecution theories under the FDCA: unapproved "new drug" theory and misbranding theory. The authors also explore the significant First Amendment implications of regulating the dissemination of truthful, non-misleading information about off-label uses. The article provides in-depth analysis of the factual patterns that trigger government investigations with examples from prominent cases. Key areas of focus for investigators include sales data, business and marketing plans, and sales force conduct. Despite the legal ambiguity and untested nature of its prosecution theories, the government has achieved significant financial settlements. The article suggests that future legal clarity may emerge from criminal or civil cases where the government declines to intervene (where vigorous challenge of the government's legal theories most likely).
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Roberta Flowers, Ethics and Elder Law: Teaching Students to Ask the Right Questions, 40 Stetson L. Rev. 133 (2010)Clicking on the button will copy the full recommended citation.
Teaching professional responsibility generally is not an easy task, but when it is combined with the complicated issues in Elder Law, it poses obstacles, challenges, and great rewards. Many times the best way for practitioners to solve the ethical dilemmas they face is to know the right questions to ask. This Article discusses how using Elder Law examples to illustrate ethical issues can accomplish the following three goals: (1) teaching the general rules of professional responsibility using the lens of Elder Law; (2) exploring the unique roles played by Elder Law attorneys in the lives of their clients and their clients’ families; and (3) help the students learn to identify the questions and concerns raised in this particular area of law. Teaching ethics in an Elder Law context affords the students the opportunity to explore the roles of the Elder Law attorney and the need to recognize the questions and concerns in this area of law.
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Roberta Flowers, The Role of the Criminal Defense Attorney: Not Just and Advocate, 7 Ohio St. J. Crim. L. 647 (2010)Clicking on the button will copy the full recommended citation.
This essay was written for a symposium where several authors each analyzed the same factual hypothetical of a client planning to commit perjury. It argues that the lawyer’s ethical role must account for duties to the court and public, as well as the duties to the client. The tri-partite role of the attorney is the beginning point when dealing with what has been called the criminal defense attorney’s trilemma. The answer to the hypothetical posed is found in accepting the responsibility to fulfill each of the required ethical roles in any given situation. This essay argues that the situation of a client’s perjury should be analyzed with a recognition that each of the multiple roles implicate distinct responsibilities, and further that each role has an ethical perspective which must be considered and fulfilled in every action and decision the lawyer makes.
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Tim Kaye, Rights Gone Wrong: The Failure of Fundamentalist Tort Theory, 78 Miss. L.J. 931 (2010)Clicking on the button will copy the full recommended citation.
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Paul Boudreaux, Time Machine: Emma’s Legal Education, 59 J. Legal Educ. 454 (2010)Clicking on the button will copy the full recommended citation.
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Ellen S. Podgor, Intangible Rights – A Déjà Vu, 63 Vand. L. Rev. En Banc 73 (2010)Clicking on the button will copy the full recommended citation.
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Rebecca C. Morgan, The Future of Elder Law Practice, 37 Wm. Mitchell L. Rev. 1 (2010)Clicking on the button will copy the full recommended citation.