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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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Luz Estella Nagle, Corruption among Politicians, Law Enforcement, and the Judiciary, in Narcos over the Boarder: Gangs, Cartels, and Mercenaries (Robert J. Bunker ed., Routledge, 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, 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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Ellen S. Podgor, Regulating Lawyers: Same Theme, New Context, 2010 Journal of the Professional Lawyer 191 (2010)Clicking on the button will copy the full recommended citation.
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Linda S. Anderson, Just Because You Want Kids Doesn’t Mean I Can’t Have Them: How Clarifying Definitions of Parent and Procreate Can Prevent the Indefinite Storage of Cryopreserve Embryos, 49 U. Louisville L. Rev. 231 (2010)Clicking on the button will copy the full recommended citation.
Since 1978, when the first “test-tube baby” was born in England, the use of technology to assist with the process of conception has evolved quickly. Today, advances in technology allow the various steps in the process of conception and gestation to be carried out in multiple locations, with multiple contributors to the process, and over an extended period of time. These technological advances call into question many of the assumptions about parenthood and procreation that were indisputable prior to the use of assisted reproductive technology. Courts have attempted to apply the old meanings to questions about the use of new technology, especially with regard to cryopreserved embryos, but admit that they are venturing into uncharted territory. When doing so, they often fall back on language that is familiar, but too imprecise to be helpful. Words like “parent” and “procreate” imply important rights and responsibilities, yet these words never needed defining in the past. Today they do, so this article attempts to re-define these terms by looking at their historical use, new legislation and cases that have tried to clarify them, and the policies behind their regularly-accepted meanings.
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Ellen S. Podgor, The Tainted Federal Prosecutor in an Overcriminalized Justice System, 67 Wash. & Lee L. Rev. 1569 (2010)Clicking on the button will copy the full recommended citation.
The infiltration of politics in the Department of Justice (DOJ) is the discussion in four recent oversight reports. Commentators and scholars have responded with varying solutions to ensure these mistakes will not be repeated.
This Essay looks at politicization in DOJ from a different angle. It focuses first on the importance of maintaining political neutrality in DOJ and then stresses the need to examine structural changes in the criminal justice process that will minimize the ability to have decisions that might be politicized or might suggest an appearance of being politicized. Instead of focusing only on corrections to alleviate politicization in the federal criminal justice system, the focus also needs to look at overcriminalization, the breadth or many criminal statutes, the increased lack of mens rea required in criminal offenses, and the ability of prosecutors to use “short-cut” offenses to proceed with charges with relatively little proof. Conquering systemic problems accruing from an overcriminalized system will assure that decision-making is consistent and not a product of a prosecutor’s personal preferences. Thus, even if politicization should again enter into the DOJ, limited power in decisionmaking would avoid any possible problems that might accrue from the appearance or reality of having politically connected decisionmakers.
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Catherine J. Cameron, Fixing FOIA: Pushing Congress to Amend FOIA Section B(3) to Require Congress to Explicitly Indicate an Intent to Exempt Records from FOIA in New Legislation, 28 Quinnipiac L. Rev. 855 (2010)Clicking on the button will copy the full recommended citation.