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Faculty Publication Highlights

Effectively Representing Your Client Before the IRS, 8th Edition, chapter 18 by Linda Galler

Published by the ABA Tax Section and now in its 8th Edition, Effectively Representing Your Client Before the IRS is a comprehensive collection of everything a tax professional should know when dealing with the IRS. Written by some of the most experienced tax controversy lawyers in the United States, this two-volume reference provides an in-depth discussion of the law and is replete with realistic examples and hundreds of practice tips to aid tax practitioners during all stages of representation before the IRS in controversy matters, including exam, appeals, Tax Court, refund actions, and collection matters. The companion website contains select audio and video recordings, gleaned from past ABA Tax Section meetings and webinars, and is supplemented with meeting materials relevant to your practice. No tax professional should be without Effectively Representing Your Client Before the IRS. It's your go-to manual to successfully navigate the challenging maze of rules governing tax controversies. New Chapters in the 8th Edition: Obtaining Authority to Represent Taxpayers or Receive Taxpayer Information Understanding Taxpayer Identification Numbers and Their Impact on IRS Return Processing Applying Administrative Law in Tax Cases New Chapters Expanding on the Collections Chapter: Offers in Compromise Collection Due Process and Equivalent Hearings Bonus Web Content: Select Audio, Video, and Meeting Materials Full Book PDF Nonprofit / Academic / Government individuals or institutions are eligible to a 50% discount off the non-member price by calling the ABA's Service Center at (800) 285-2221 to place an order.

Storytelling and Relevancy

Relevancy decisions, according to the prevailing view, are matters of probability, whether a given piece of evidence makes any legal proposition more (or less) likely to occur. This view has long held sway, from the early rationalist scholar James Bradley Thayer through the codification of formal rules of evidence, supplanting the common law’s acceptance of witness-framed narratives. But a purely logical analysis, one famously framed in terms of a mathematical equation, seems ill-suited for trial decisions. And the Probabilistic Paradigm often excludes context necessary for a party to present its case. This Article brings together two areas of scholarship that challenge a purely logical approach to relevancy decisions. Drawing on cognitive science and philosophy, the Explanatory Paradigm offers an effective critique of making admissibility decisions based on probabilistic formulas. This model also provides robust criteria for judging explanations. The Explanatory Paradigm, though, gives little attention to the role of narrative, a concern at the heart of Applied Legal Storytelling. This Article aims to correct this oversight. Applied Legal Storytelling’s insights on narrative and context, combined with the criteria of the Explanatory Paradigm, offer a workable alternative to the Probabilistic Paradigm. This project, in important ways, restores the common law’s embrace of witness stories as a way to determine the truth.

The Elephant in the Room in Clinical Scholarship: Ethical Guardrails and Case Histories

Lawyers know how to tell a good story and are expected, en-couraged, and even ethically required to use that skill on behalf of their clients. In this article, the authors identify the benefits to the legal profession and the public of the use of client stories in legal scholarship and highlight the ethical issues raised by such publication. It is the interplay between these values-the improvement of the legal system versus the protection of client confidentiality-that is the focus of this paper.

Skills Pedagogy and Legal Ethics in a Law School Disaster Recovery Clinic, Chapter 2 by C. Benjie Louis in Meeting the Legal Needs of Disaster Survivors

"This book is the latest development in YLDs efforts. The ten essays included here range from overviews of the need for pro bono disaster legal assistance and the roles of the organized bar and civil legal services providers in meeting it to informative, nut-and-bolts guides to specific issues in disaster legal aid-such as navigating flood insurance claims, dealing with post-disaster housing and tax issues, and understanding the specific needs of vulnerable populations. This volume is a valuable resource for the entire disaster response community-and the latest of many contributions from a leader of that community, the ABA Young Lawyers Division"--

Security for Expense Statutes for LLCs and Limited Partnerships: Adding Value or Simply Adding to the Owners’ Hopelessness?

Every state authorizes shareholder derivative litigation, and the vast majority extend this remedy to LLCs and limited partnerships. As the availability and incidence of derivative litigation has expanded over time, a number of procedural hurdles have evolved in an effort to limit nuisance or strike suits. The theory is that these strike suits are brought by small shareholders, and the need to post a bond may deter these shareholders from bringing these suits. As part of this effort, some states have enacted “security for expense” provisions, requiring owners to post a bond to cover the defendants’ expenses before they can proceed with their suit. A few state have also enacted such provisions for derivative suit by LLC members and/or limited partners.

A Sexual Harassment Primer by Kevin McElroy

The employer-employee relationship has been at the heart of what seems to be an ever-increasing amount of federal and state court litigation. A significant portion of this litigation involves claims of sexual harassment; indeed, a recent computer search discovered *50 an aggregate of about 100 reported federal district and circuit court decisions relating to sexual harassment claims over a mere six-month period.

Family law with skills ten years later: Experiential education in the introductory family law course

Hofstra's Law School's Family Law with Skills Course (FLWS) incorporates experiential education into an introductory family law course. This article describes FLWS' recent experiential curricular innovations: (1) a transition to online learning; (2) the Navigator Program in which students provide legal information (in contrast to legal advice) to self-represented litigants in divorce actions; (3) a forum with leadership from the divorce bar nationwide that introduces law students to the nature and future of family law practice; and (4) a divorce representation simulation in which law students counsel a client with consulting help from a psychologist, asset valuator and dispute resolution expert. This article describes the contribution each of these innovations makes to the education of family law students and how they are organized. It concludes that experiential education should be part of the education of future family lawyers in the interests of improving the quality of the representation they provide and their commitment to the field.

Can You Be a Legal Ethics Scholar and Have Guts?

Recent efforts to hold lawyers accountable for their actions-including lawyers who sought to overturn the 2020 Presidential election based on false evidence,and New York City prosecutors who have committed serious misconduct-failed to draw a significant number of legal ethics scholars. The authors of this Essay are troubled by this. We understand why practicing lawyers might be reluctant to join such an effort; calling out other lawyers inpositions of power can be had for clients. But it is less understandable when it comes to law professors who, except for those who teach in law clinics or otherwise engage in law practice, have no clients. Legal ethics scholars write and teach-often from a secure academic position-about the importance of legal ethics.

Consent Searches and Fourth Amendment Reasonableness

Drawing on the Court’s approach to reasonableness in other Fourth Amendment contexts, this Article first looks to the concept of “macro reasonableness” to argue that the Court has overestimated the value of consensual searches to law enforcement and underestimated their effect on privacy. While the Court has emphasized the value of consensual searches yielding incriminatory evidence that might go undetected absent the consent-search doctrine, many consent searches serve no government interests at all. Meanwhile the pervasiveness of the practice imposes tremendous costs to privacy. This Article then seeks to reshape the consent-search exception, using a requirement of “micro reasonableness,” to make the doctrine of consent more reflective of Fourth Amendment reasonableness. Under this requirement, courts would examine not only the voluntariness of the consent underlying the search, but also the government’s reasons for requesting the consent and the scope of the consent requested.

America’s Constitutional Rule of Law: Structure and Symbol, Chapter 7 in The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat)

This book explores the development of both the civil law conception of the Legal State and the common law conception of the Rule of Law. It examines the philosophical and historical background of both concepts, as well as the problem of the interrelation between the two doctrines. The book brings together twenty-five leading scholars from around the world and provides both general and specific jurisdictional perspectives of the issue in both contemporary and historical settings. The Rule of Law is a legal doctrine the meaning of which can only be fully appreciated in the context of both the common law and the European civil law tradition of the Legal State (Rechtsstaat). The Rule of Law and the Legal State are fundamental safeguards of human dignity and of the legitimacy of the state and the authority of state prescriptions.

Psychiatry in the Courtroom: Relying on the American Psychiatric Association's Manuals to Resolve Disputes about Personal Status

Successive editions of the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM) have provided a useful, if challenging, reference for courts in cases that require assessments of mental health.1 Most of those cases involve criminal defendants.2 This Article considers judicial reliance on DSM diagnostic categories in cases involving matters of personal status.3 It examines the potential benefits as well as the disadvantages of that reliance. The Article explores two substantive domains. The first includes cases in which transgender people have sought the right to be identified legally in harmony with gender identity rather than the sex assigned to them at birth and to be treated fairly as members of the gender conforming with their identity rather than their sex at birth. The second domain includes cases implicating parental status.

The Substance of Montgomery Retroactivity: The Definition of States' Supremacy Clause Obligation to Enforce Newly-Recognized Federal Rights in Their Post-Conviction Proceedings and Why It Matters

"In Montgomery v. Louisiana, 136 S.Ct. 718 (2016), the Supreme Court made a decision of far-reaching importance to the criminal justice system: the Supremacy Clause requires states adjudicating post-conviction attacks to give full retroactive effect to “substantive” new rules of federal constitutional law."

Conviction Integrity Units: Toward Prosecutorial Self-Regulation? in Wrongful Conviction and Criminal Justice Reform

Wrongful Conviction and Criminal Justice Reform is an important addition to the literature and teaching on innocence reform. This book delves into wrongful convictions studies but expands upon them by offering potential reforms that would alleviate the problem of wrongful convictions in the criminal justice system. Written to be accessible to students, Wrongful Conviction and Criminal Justice Reform is a main text for wrongful convictions courses or a secondary text for more general courses in criminal justice, political science, and law school innocence clinics.

Cases and Materials on Land Use

This casebook covers the entire range of land use law and related constitutional and environmental issues. The 8th edition has been thoroughly updated to reflect new caselaw as well as legislative and regulatory trends at the federal, state, and local levels. The 8th edition reflects modern land use policy goals, which include, among others, promoting sustainable development and addressing the extensive impact that land use segregation has had on the distribution of wealth in this country. Chapter One, which sets the stage for the rest of the book, includes nuisance law, restrictive covenants, with new cases on racial covenants and common interest communities, and the development and legal underpinnings of legislative zoning and comprehensive planning. Chapter Two covers the basics of zoning and the classic approach to zoning changes, flexible modern techniques, such as conditional zoning, floating zones, and planned unit developments, the process through which zoning changes are made, and the complexities of non-conforming uses, vested rights, and development agreements. Chapter Three examines federal constitutional issues in land use law, including challenges arising under the Takings Clause, the Due Process and Equal Protection Clauses, and the First Amendment. This Chapter includes the Supreme Court's decision in Knick v. Township of Scott and reflects the major jurisdictional impacts on ripeness, finality, and the exhaustion of remedies. Chapter Four offers concise coverage of subdivision regulation and infrastructure financing. Chapter Five focuses on housing and has been updated to reflect approaches to homelessness and its impact on local communities. Chapter Six explores strategies to revitalize the urban core, including the controversial use of eminent domain to clear land for redevelopment, as well as tax incentives, business improvement districts, public-private partnerships, land banking, and flexible housing codes. Chapter Seven examines growth management strategies, including land use moratoria and population caps that limit growth, as well as policies designed to prevent sprawl and preserve agricultural lands. Chapter Eight, which has been combined with Chapter Nine from the prior edition, addresses the impact of land use regulation on environmental resilience and sustainability and the move towards sustainable development.

Judicial Conduct and Ethics

Provides the authoritative, practical guidance you need to ensure judicial activities are irreproachable.

The Need for Peer Mentoring Programs Linked to the Legal Writing Class: An Analysis and Proposed Model

This article will discuss the importance of expanding the role of legal writing TAs to create a robust, school-supported peer mentoring program (“PMP”) and suggest a model for such a program.

A View from inside the Ropes: A Prosecutor's Viewpoint on Disclosing Exculpatory Evidence

In late August 2009, after thirty years as a local and state prosecutor, I began a new position as a Visiting Assistant Professor at the Hofstra University School of Law. Within three weeks of my first class, I received a call from Professor Roy D. Simon, the Howard Lichtenstein Distinguished Professor of Legal Ethics at Hofstra, inviting me to attend the conference he had organized, “Power, Politics & Public Service: The Legal Ethics of Lawyers in Government,” and to supervise a “breakout session” with other conference participants. When I saw the distinguished panel Professor Simon had assembled for the conference, I replied by thanking him for the opportunity but suggested that I had nothing to contribute compared to the other speakers. Professor Simon responded that I possessed something unique that would be a useful addition to the program: a perspective based on a three-decade career of public service as a prosecutor. I agreed to provide a career prosecutor's viewpoint on fairness in general and disclosure obligations in particular.

Judicial Drift

Although there is broad consensus on what constitutes procedural due process in criminal cases, in courtrooms around the country, those ideals are often disregarded. In the wake of rising public attention to misdemeanors, be it through marijuana decriminalization or concern over unduly punitive fees and surcharges, a few scholars have pointed to theories explaining the gulf between rights and reality for low-level defendants. Yet none have expressly considered the impact of administrative rules made (or not made) at the courthouse level. This Article analogizes the courthouse to an administrative agency and borrows the doctrine of “bureaucratic drift” to explain how Supreme Court, legislative, and ethical norms of due process get fltered through a courthouse bureaucracy that ultimately leaves poor defendants without access to basic rights. The argument draws on fndings of a fve-week court observation project, which documented the daily injustices — in violation of established law — that individuals charged with low-level crimes experienced as defendants in a New York court. To remedy the drift, the Article proposes the appointment of an independent due process ombuds to oversee procedural justice court-wide.

Using the Press Clause to Amplify Civic Discourse Beyond Mere Opinion Sharing

The First Amendment unambiguously proclaims that “Congress shall make no law...abridging the freedom of speech, or of the press.” The First Amendment’s Speech Clause primarily bears the deliberative weight of protecting and maintaining the discursive space of America’s self-governing democracy. It has done so by indiscriminately protecting a broad array of expression from government intrusion. As a result, the Speech Clause has democratically legitimized such expression in America’s civic discourse. This legitimization is essential to a more deliberative democracy. The Speech Clause’s legitimizing function, however, has not helped to advance another essential element for a well-functioning deliberative democracy, namely, democratic competence. Instead, it has hurt it. Democratic competence relates to the cognitive empowerment of citizens within civic discourse and requires, at a minimum, deliberation-enhancing end-products and exchanges, grounded in factual truth and disclosure of corporate or government sponsorship when applicable. The protective scope of the Speech Clause has ironically contributed to the current floodgates in American civic discourse of the opposite — unsubstantiated commentary, rumor, and manipulative spin. Developments in technology, citizen journalism, and online “blogging” have exacerbated this cacophony and discourage the production of deliberation-enhancing end-products and exchanges.

This Article turns to the Press Clause to advance democratic competence and to in turn amplify civic discourse beyond mere opinion sharing. It aims to do so by incentivizing the production and dissemination of deliberation-enhancing end-products. In so doing, this Article leaves intact the Speech Clause’s expansive reach and legitimizing function, while proposing an alternate basis of constitutional protection for a narrower category of speech — deliberation-enhancing end-products. Moreover, using the Press Clause in this manner provides a constitutional framework through which exclusive privileges may be awarded to anyone who produces these qualifying end-products. These privileges can therefore be made available to others besides members of the traditional news media who are currently the primary beneficiaries of such privileges. Civic discourse can, as a result, be opened up without sacrificing the long-acknowledged value of deliberation-enhancing end-products to civic discourse.

Maryam Franzella, Importance of Effective Jury Instructions on Front Pay

Susan Greene, Writing for the Long and Short Run

Running parallels my life in just about every way imaginable. Below are five lessons that I have drawn from my running and applied to my teaching.

Barbara Barron, et al., Slovin V. Slovin

Slovin v. Slovin is a multifaceted matrimonial action that started when Rita Slovin sued her husband, Michael Slovin, for divorce under the jurisdiction's no-fault divorce provisions. Rita seeks sole custody of the couple's two children, while Michael seeks a significant equitable distribution award and sole custody of their children. Michael has also brought a separate action against Rita for battery and slander. Slovin is a multi-purpose case file divided into five modules. The first two modules focus on child custodythe negotiation and trial of the child custody case. The second two modules concern the trial and negotiation of financial issues, with sole consideration to equitable distribution. In addition to those traditional matrimonial litigation issues, there is an additional module that introduces the theory of marital tort as an offshoot of the matrimonial litigation. There are two causes of action, one for battery and the other for defamation. The insertion of those two tort claims allows for additional training in basic trial advocacy skills while developing more complex theories of the case. Further, the related battery and defamation actions allow participants to gradually develop their advocacy skills. Slovin v. Slovin features eleven witnesses, depositions and testimony, expert reports, and modern electronic evidence in the form of Twitter posts that are accessible on online "microsites."

Neofeudalism: The Surprising Foundations of Corporate Constitutional Rights

Business corporations are statutory creations, recognizably modern only from the end of the nineteenth century, if not the New Deal. The modern statutes are loosely descended from far older corporate forms. In those earlier eras, corporations were self-governing entities with claims to partial or total autonomy -- theKnights Templar, monasteries, guilds, cities, universities, or aristocracy. Startlingly, the Supreme Court’s constitutional jurisprudence continues to be deeply influenced by the feudal understanding of corporations as quasi-sovereigns entitled to something like comity. This image -- not the word “person” in the Fourteenth Amendment, the “naturalness” or “artificialness” of corporations, nor the requirements of freedom of speech or religion -- is the best explanation of both the historic and modern cases.

This semi-sovereign understanding of the corporation’s constitutional status presents two underexplored problems. First, business corporations have no defensible claim to autonomy in a post-feudal liberal democracy. Second, if they did, they would be subject to the standard liberal critiques of their unlamented predecessors: corporate officeholders wield unresponsive power unrestrained by republican or democratic norms. Rejecting this notion would allow us to begin to explore the full implications of the alternative view -- that business corporations, like our other governing agencies, “deriv[e] their just powers from the consent ofthe governed . . . [to] effect their Safety and Happiness.”

James E. Hickey, Jr., “The 1982 United Nations Convention on the Law of the Sea”, in Ocean and Coastal Law and Policy, Second Edition

Providing an excellent and current resource for understanding the complexities of ocean and coastal law and policy, this updated edition of an ABA bestseller brings together the expertise of the country's leading scholars and practitioners in the field of ocean and coastal law. Covering the full array of issues involved -- from maritime jurisdiction and boundaries to water quality protection to fisheries management and marine mammal protection to offshore energy development and climate change -- each chapter addresses the current state of the law for the topic, followed by analysis of the emerging and unresolved issues. The book's final chapters address the principles, legal authorities, and planning for a transition toward an ecosystem-based management approach to U.S. coastal and ocean areas. Among the topics covered in this updated edition of Ocean and Coastal Law and Policy are: Maritime jurisdiction and boundaries The Public Trust Doctrine The role of the states Regulation of coastal wetlands and other U.S. waters Managing coastal development National Environmental Policy Act (NEPA) Coastal water quality protection Ocean dumping and marine pollution Fisheries management and trade in fish and fisheries products The 1982 U.N. Convention on the Law of the Sea Offshore energy development

The Significance of China's Views on the Jus Cogens Exception to Foreign Government Official Immunity

The "rise of China" has already become cliche among international relations scholars and policy analysts. Yet few disagree that the People's Republic of China's economic, military, and political power has reached
new heights in recent years.' It is, therefore, surprising that relatively few international law scholars have studied whether and, if so how, the "rise of China" is affecting the development and growth of international law.
Take, for example, the application of the doctrine of sovereign immunity to foreign government officials-an area of substantial ferment and change. Numerous international authorities have suggested that, under
international law, government officials cannot invoke the protections of sovereign immunity for acts that violate jus cogens norms. The United States Court of Appeals for the Fourth Circuit recently relied on this
international law trend, holding that the "common law of sovereign
immunity" does not shield former government officials accused of acts
violating jus cogens from civil lawsuits. But although the Fourth Circuit
cited decisions from the United Kingdom and Italy to support its holding,
it did not cite China's views. This failure, while understandable, suggests
that the impact of China's perspective on this key question of international
law remains small.

This Essay uses the Fourth Circuit's holding as an opportunity to consider China's impact on the development of a complex and important doctrine of international law.

The Genius of America

An inspiring and revelatory look at the document that has made our country the longest surviving democracy in the history of civilization: The Constitution of the United States. The history of democracy is a history of failure. The United States holds the record at 230 years, yet the document at the nation's center is one that we take for granted. Due to a combination of heightened frustration, moves to skirt the constitutional process, and a widespread disconnect between the people and their constitutional "conscience," Lane and Oreskes warn us our system is at risk. The Genius of America looks at the Constitution's history relative to this current crisis. Starting with the eleven years between the Declaration of Independence and the Constitution's adoption, they show how our near failure to create a loosely knit nation led the framers to devise a system that takes human nature into account. Next they provide examples of how we have weathered crises in the past, from early attempts at political tyranny to the Civil War. Finally they turn to two periods, one of great consensus (from Roosevelt's New Deal through Johnson's Great Society) and another of division (from Reagan through George W. Bush), both of which demonstrate the Constitution's effectiveness. In the final assessment, Lane and Oreskes challenge us to let this great document work as it was designed--in times of change and stasis. They hold our leaders accountable, calling on them to stop fanning the flames of division. And while evenhanded in its presentation, The Genius of America reminds us the Constitution is our national glue.

Litigating Citizenship

By what standard of proof — and by what procedures — can the U.S. government challenge citizenship status? That question has taken on greater urgency in recent years. News reports discuss cases of individuals whose passports were suddenly denied, even after the government had previously recognized their citizenship for years or even decades. The government has also stepped up efforts to re-evaluate the naturalization files of other citizens and has asked for funding to litigate more than a thousand denaturalization cases. Likewise, citizens have gotten swept up in immigration enforcement actions, and thousands of citizens have been erroneously detained or removed from the United States. Most scholarly treatment of citizenship rights has focused on the substantive protection of those rights. But the procedures by which citizenship cases are litigated are just as important — and sometimes more important — to ensure that citizenship rights are safe.

This Article analyzes the due-process implications of citizenship litigation in the United States. It examines different stages at which the citizenship question is judicially resolved, including denaturalization, removal and exclusion, and restrictions on the exercise of citizenship rights such as voting, working, and traveling. The Article concludes that the structure of U.S. democracy relies on the stability of citizenship and requires heightened procedural protections when the government challenges an individual’s citizenship. In the words of Justice Felix Frankfurter, “The history of liberty has largely been the history of observance of procedural safeguards.” Those procedural safeguards are needed to ensure that the judicial branch can remain the stalwart protector of a key pillar of our constitutional democracy.

Wrongful Imprisonment and Coerced Moral Degradation

Despite the ever-growing number of exonerations in the U.S.— and the corresponding surge in scholarly interest in wrongful convictions in recent years—research on the carceral experiences of wrongfully-convicted persons remains strikingly limited. In this essay, we draw on in-depth interviews with 15 exonerated men to explore the moral dimensions of the experience of wrongful imprisonment. We argue that imprisonment entails what we refer to as “coerced moral degradation,” whereby innocent men’s self-preservation efforts in prison require them to feign being—and at times actually become— morally worse people. We argue that these findings speak to the fundamental question of what the law is for, and, further, that the coerced moral degradation that the men experienced in prison provides a compelling basis for conservative and progressive scholars to find some common ground on the moral purpose of the law.

Inequality, COVD-19, and Human Rights: Whose Lives Matter?

Part 1 of the article shows that the poor, everywhere, are more likely to get sick and more likely to die when they do. In many countries, they are also more likely to starve.

Part II explains why this is a matter of human rights. The ongoing deprivation of basic rights to healthcare and an adequate standard of living are major factors. As this Part demonstrates, however, the extreme vulnerability of the poor is grounded in earlier violations of human rights, including state-sanctioned segregation in the American south in the 1950s and what one author has called “the darker side of American hegemony,” referring to the United States’ role in the overthrow of leftist regimes in Latin America during the Cold War.

Part III argues that the current crisis demands a broader, deeper, and more authentic commitment to human rights. We are living in a world of brutal economic inequality, in which some lives matter and others do not. The United States has played a major role in creating this world, in part by violating the human rights of Black Americans, immigrants, and asylum-seekers. This Article argues that the United States should take responsibility for these violations and suggests how it may begin.

Special Issue Introduction: Immigrants and the Family Court

Family courts throughout the United States have explicit statutory duties to aid families in crisis, to maintain families whenever appropriate, to protect children and safeguard their well-being, and to
provide children with permanency in their lives. These are not narrow obligations, and the judges, practitioners, and agencies involved in family courts must constantly adapt to serve the individual needs of all the families that come before them. The purpose of this Special Issue is to examine the
unique challenges presented by working with families and children who are immigrants-both documented and undocumented-and the complex interplay between immigration issues and the
family court's obligations to serve the families and children who come before it.

Grantor Trust Assets And Section 1014: New Irs Ruling Doesn't Solve The Problem

Rev. Rul. 2023-2 is not a comprehensive solution. While seeking to close down a basis adjustment for assets remaining in the trust at death, it leaves intact the repurchase strategy. To end this strategy, the deemed-ownership principle in Rev. Rul. 85-13 and Example 5 should be eliminated.

Introduction: Freedom of Expression at American Law Schools

The article presents a compilation of papers and reflections from the Symposium on Freedom of Expression at American Law Schools.Topics include the importance of respectful and persuasive argumentation, the suppression of speech by state governments, and the role of free expression in legal education.

Caging the Bored Ape: How the FTC's Expanded Anti-Monopoly Authority Can Tame "NFTS" for Web 3.0

Non-Fungible Tokens, or “NFTs,” ballooned into a 40-billion-dollar industry in under a decade. Their creators include artists, corporations, entrepreneurs, fraudsters—and even Donald Trump. While NFT owners and traders could be any of us, the parties running the marketplaces are hidden. NFT regulators have yet to be identified. Most alarmingly, the dominant NFT marketplaces are dangerously centralized. Accordingly, the publicized tales of exorbitant or manipulated NFT prices and frequent related scams abound. Meanwhile cryptocurrency—the technology enabling the life of an NFT—remains beset with, at best, theoretical models for effective regulation a full generation after its emergence.

To propose a rational start to NFT regulation, the author—a former regulator—tackles the basics: NFT design, “minting,” opening for purchase and trading, and ultimate repose in the digital wallets of purchasers. Specific legal ills occasioned by each step of the process are described. In turn, the apparent choices for NFT regulator are examined. To be sure, the eager lethargy exhibited by investment regulators confronting virtual currencies has proven rule adoption to be a quixotic dream. Thus, the author suggests that the storied FTC, the agency with the heart and the mission, be chosen as the force to slow market consolidation and counter anti-competitive practices cementing in the country’s vastest NFT marketplaces. Such remedy (enabled by the FTC’s revision of its antitrust mission late last year) would temper the rampant loosing of NFTs on all unbridled marketplaces until more ill ramifications can be catalogued and comprehended. Further, the proposed resolution of “trust-busting type” oversight is not only amply supported by the recent FTC successes but also greatly aligned with the idyllic hopes of the budding “WEB 3.0” world. Namely, if the latest incarnation of interactive cyberspace is to truly “shatter the monopolies on who controls information”, the first step is to ensure that the interrupter itself is not a monopoly.

Water Bankruptcy Through the Bankruptcy Code

Water scarcity due to climate change is forcing the state and local government agencies that regulate water use to prioritize certain water uses and users above others. Water agencies could just stand pat and enforce existing priorities, even if doing so would cut off valuable collective uses of water that are lower in priority than uses by narrow private interests. Alternatively, the agencies could try to adapt water priorities to climate change by reducing water obligations owed to certain groups of users in order to free up water supplies for other groups of users, even if doing so would trigger a mass of litigation from users set to receive less water than they were promised. Anticipating these dynamics, water law scholars developed the concept of “water bankruptcy,” a set of principles for better resolving the multiparty lawsuits bound to follow adaptation of water priorities to climate change. To date, however, proponents of water bankruptcy in principle have urged lawmakers to amend their own state and local procedures, overlooking the possibility that water bankruptcy in practice is already available to water agencies through the federal law of municipal bankruptcy, Chapter 9 of the Federal Bankruptcy Code.

This Article is the first attempt to examine the promise of water bankruptcy through Chapter 9 of the Bankruptcy Code, which allows local government units to readjust their debt obligations into more sustainable arrangements. As it turns out, the Code makes available a litigation process that is readymade for water bankruptcy, maximizing flexibility for eligible water agencies to consolidate in a single forum all claims to specific water sources, to breach and compensate obligations owed to large groups of water users, and even to pay for emergency water supplies. Water bankruptcy through the Bankruptcy Code also would not implicate the efficacy or constitutional concerns raised by recent Chapter 9 bankruptcies of general municipalities. Faced with dwindling freshwater supplies, water agencies and advocates of water bankruptcy in principle should appreciate the promise of water bankruptcy through the Bankruptcy Code.

The Modern Way to Write a Statute Is to Tell a Story

Except for the United States, the English-speaking world has been moving toward writing statutes as stories with characters and plot tensions. British statutes are the most advanced in this respect.

To illustrate the British method, the key statutes in the Mar-a-Lago Indictment are redrafted in this article to resemble the form they would take if recently enacted by Parliament. l compare the statutes and the redrafts side-by-side. And I do the same thing with two sections of the Electoral Count Act, which governs what Congress does on every January 6 following a presidential election year.

The article explains how the British drafting process differs from Congress’s as well as why and how the British have gradually been abandoning statute-writing customs that still prevail in the United States. The article also explains how a writer can tell a story in a statute: sequencing events, blocking to set up a scene, and managing action and dialog.

Beyond the Toolbox: Values-Based Models of Mediation Practice

This Article argues that mediators are following distinct models of practice that are significantly different from each other, and that each model is itself internally coherent and integrated. In other words, within each model the mediator’s purpose, practices, and premises are all consistent and congruent; and when comparing each model to the others, these three levels are not only different but incompatible. Yet, although these models and their differences are recognized in the literature and identifiable in practice, many mediators and policymakers do not clearly acknowledge them; even more, they are often discounted and ignored. For example, proposals have been made recently to ignore these models in favor of a "toolbox" approach in which mediators select their practices on a case by case basis from a toolbox of methods shared by all. This Article explores the reasons for the insistence that good practice is a matter of using a common toolbox rather than following different coherent, purpose-driven models, and shows how the latter approach provides greater service to consumers and facilitates better regulation of mediation practice and ethics.

Combating Imposter Syndrome in the Classroom

I suffer from imposter syndrome.[1] I am filled with self-doubt, never quite feel as though I belong, and fear that I will be discovered to be less than. I tend to assume any successes I have are due mainly to luck. I felt this way in law school, as a Biglaw associate, and still today at times in academia.

It turns out I’m not alone. Unfortunately, imposter syndrome is very common among law students (and lawyers), especially those from underrepresented and marginalized populations.[2] Not surprisingly, students who feel out of place, unqualified to be in the room, and deficient when internally comparing themselves to their peers, are less likely to participate in class. Because imposter syndrome disproportionately affects women, minorities, and first-generation law students,[3] the classroom is at risk of becoming a homogeneous environment.

The Influence of Metacognitive Skills on Bar Passage: An Empirical Study

This article builds on our prior research about metacognition and its importance for law students’ learning. We hypothesized that given our past findings about the relationship between metacognition and academic performance in law school, it was possible that metacognition might also play an important role in success on the bar exam.  Our current study documents law students’ metacognitive skills during a final semester bar prep course and examines the relationship between those students’ metacognitive skills and bar passage. We found that students are capable of gaining metacognitive knowledge and regulation skills during law school and even as late as the last semester of law school. We also found evidence that instruction and prompts to practice metacognitive regulation during the first year of law school had a long-term impact on students’ continued use of those skills. This evidence is important because we also found, as we have in prior studies, that students’ success in a final semester 3L bar preparation course, as well as their cumulative law school GPA, are associated with their level of metacognitive knowledge and regulation skills. While we did not find evidence of a direct relationship between metacognitive skills and bar passage, there was a relationship between bar passage and both course performance and cumulative GPA. Accordingly, we contend that metacognitive skills are an indirect support of bar passage given that they contribute to success in law school, which in turn supports success on the bar exam. We conclude that, based on the relationship between metacognitive skills, academic success in law school, and bar passage, law schools have an ethical obligation to support law faculty in explicitly and intentionally incorporating metacognitive skills instruction into the law curriculum.

Intersectionality Matters in Food and Drug Law

Feminist scholars critique food and drug law as a site of gender bias and regulatory neglect. The historical exclusion of women from clinical trials by the FDA prioritized male bodies as the object of clinical research and therapies. Likewise, the FDA’s prior restriction on access to contraceptive birth control illustrates how patriarchal and paternalistic attitudes within the Agency can harm women’s reproductive health. However, there is little analysis of how race and gender intersect in this domain.

Duties Regarding Duties

Corporate directors are subject to the fiduciary duties of care and loyalty in the discharge of their responsibilities. The demands of these duties, from their precise contours to their application under a particular set of circumstances, is oftentimes far from obvious. In order to properly fulfill their duties of care and loyalty, corporate directors necessarily depend upon corporate counsel: specialized attorneys, whether in-house or external to the corporation, retained to advise and represent the corporation. As attorneys, corporate counsel are themselves subject to a wide array of professional responsibilities, ranging from the exhortations of codes of ethics to duties the breach of which could result in a finding of malpractice. These responsibilities can themselves be ambiguous when brought to bear upon specific situations, and hence the advent of the field of legal ethics, and the phenomenon of experts therein. This Article explores the potentially perilous confluence of these two sets of obligations in the person of a corporation’s general counsel. For it is, ultimately, the general counsel of a corporation, that specialist of specialists, with whom rests the duty to advise board members of their duties. This Article articulates what this duty entails and, informed by a 2022 survey of general counsel, sets forth suggested best practices to be adopted in order to confidently discharge it.