Another fundamental area where the Marquette Law School faculty is also showing important contributions to the law is the production of scholarship that results in law review articles, book chapters, textbooks, etc.  We often present and discuss these works when they are still in progress in conferences around the country with our colleagues in our areas at other schools.  Still, to facilitate even further these very important discussions, the MULS Academic Programs Committee, led by Professor Chad Oldfather, has organized two sessions of an in-house Works-in-Progress Workshop for June and July.

The June session was a great success. A group of eight of us met this past Wednesday and presented our works-in-progress, from very rough to more completed drafts of scholarship, to our colleagues participating in the program. 

 In addition to the various presenters, Professor Paul Secunda also provided participants with helpful feedback. The topics and discussion on each of the drafts were fascinating and brought us on a beautiful journey throughout many different areas of the law.

Professor Phoebe Williams opened the day by presenting a paper on “Age Discrimination as a Barrier to the Provision of Health Care,” in which she analyzes the Age Discrimination Act of 1975 and advocates for the creation of appropriate data collection and research models to effectively identify and redress those instances where advanced age is illegitimately considered by health care providers.

Professor David Papke then followed with a paper on “Law, Legal Institutions, and the Criminalization of the Underclass,” which represents one of the chapters of  a planned book on the analysis of the relationship between legal institutions and the “underclass” in the United States.

Also related to Criminal Law, Professor Greg O’Meara presented a paper on habeas corpus review for state prisoners, in which he challenges the belief, almost taken for granted after passage of the Antiterrorism and Effective Death Penalty Act of 1996, that habeas claims are ineffective.  Professor O’Meara’s paper will be part of the Conference on Criminal Appeals, which has been organized by Professors O’Hear and Oldfather and will take place at Marquette Law School on June 15-16, 2009. The paper will also be published in a special symposium issue of the Marquette Law Review.

The Workshop continued with the presentation of Professor Vada Lindsey on the wrongs of the “Earned Income Tax Credit.”  In this paper, Professor Lindsey criticizes the effectiveness of the EITC, particularly insofar as it fails to encourage saving by the working poor.

Professor Lisa LaPlante followed with a presentation that brought us to a different dimension of the law: international law. In her current project, starting from the analysis of the conviction of former Peruvian President Fujimori, Professor LaPlante considers the issue of criminal accountability for wars on terror and human rights violations by heads of state.

Professor Nadelle Grossman then brought all of us back to our classrooms by discussing her current research project: how traditional law school teaching, which is based primarily on case law, fails in preparing students for transactional practice. In her paper, Professor Grossman highlights the gap between the reality of legal practice and law school teaching, criticizes the lack of valuable materials for teaching transactional law and practice, and calls upon law school curricula to bridge this very important gap.

Next, Professor Michael O’Hear presented a draft of his article “Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experience,” which he will also present at the Criminal Appeals Conference and which will be published in the symposium issue of the Marquette Law Review. In his paper, Professor O’Hear proposes a set of principles to guide the appellate review of sentence explanations in jurisdictions, such as Wisconsin, that lack mandatory sentencing guidelines.

I then concluded the day with a presentation on “The Case for a Fair and Balanced Protection of Geographical Indications of Origin,” which addresses the reasons why we should protect these “new” types of intellectual property (which refer to names such as Prosciutto di Parma, Chianti, Bordeaux, Budwar Bier, or Idaho Potatoes) and the limitations that should apply to these rights. Unfortunately, I had no time to provide tastes of the many (good quality) food and drinks I mention in my paper!

Thank you again, Professor Oldfather, for organizing such a great day of legal discourse and intellectual exchange at Marquette Law School.

Nantiya Ruan, Accommodating Respectful Religious Expression in the Workplace, 92 Marq. L. Rev. 1 (2008) (SSRN version here).

Scott A. Schumacher, MacNiven v. Westmoreland and Tax Advice: Using Purposive Textualism to Deal with Tax Shelters and Promote Legitimate Tax Advice, 92 Marq. L. Rev. 33 (2008).

Michael W. Loudenslager, Giving Up the Ghost: A Proposal for Dealing With Attorney “Ghostwriting” of Pro Se Litigants’ Court Documents Through Explicit Rules Requiring Disclosure and Allowing Limited Appearances for Such Attorneys, 92 Marq. L. Rev. 103 (2008).

Barbara O’Brien & Daphna Oyserman, It’s Not Just What You Think, But How You Think About It: The Effect of Situationally Primed Mindsets on Legal Judgments and Decision Making,  92 Marq. L. Rev. 149 (2008).

Joan Shepard, Comment, The Family Medical Leave Act: Calculating the Hours of Service for the Reinstated Employee, 92 Marq. L. Rev. 173 (2008).

Charles Stone, Comment, What Plagiarism Was Not: Some Preliminary Observations on Classical Chinese Attitudes Towards What the West Calls Intellectual Property, 92 Marq. L. Rev. 199 (2008).

Congratulations to the student editors of Volume 92 for the successful completion of their first issue!

In addition, the next President’s economic plan is particularly critical because it must address the fate of the numerous tax provisions that will sunset at the end of 2010. 

Because of its sunset, the § 179 allowable deduction will revert to its previous cap of $25,000 in 2011.  Under the Working Families Tax Relief Act of 2004, the $1000 child tax credit for each qualifying child will revert to $700 after 2010.  The top marginal rate for individual taxpayers will revert to 39.6 percent from the current thirty-five percent rate after the sunset.  The capital gains tax on most capital gains will return to twenty percent from the current fifteen percent rate after 2010.  The determination of the appropriate rate of capital gains taxation is subject to debate.  One theory is that a reduction of capital gains will unfairly benefit upper-income taxpayers because they hold the vast majority of capital assets.  The other theory is that a reduction in capital gain rates will result in an infusion of needed capital into corporations and other business forms, thereby enabling them to expand business operations, hire additional employees, and benefit the economy as a whole.

Another major issue that needs to be addressed is the future of the estate tax.  Estate planning has become complicated after the enactment of the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA).  While decedents dying during 2010 will not be subject to the federal estate tax and the generation-skipping transfer tax, the repeal sunsets at the end of 2010, and both taxes will be reinstated during 2011 with an exemption of $1 million.  Given the economic volatility, it is unlikely that the next President will sign into law a bill that repeals the sunset.  There are four options for reform of the estate tax.  One option is to increase the unified credit so that only the most affluent individuals are subject to transfer taxes.  A second option is to lower the tax rate on the transfer taxes.  It is probable that the wealthiest individuals will prefer this option.  If a decedent dies with a $20 million taxable estate after 2010, the decedent is potentially subject to federal estate tax of $7,275,800 if the top marginal rate is fifty percent and the unified credit is $5 million.  Conversely, if the next President signs a law that lowers the rate to a flat rate of, for example, twenty-five percent and retains the $1 million unified credit, the potential liability falls to $4,750,000.  The third option is a combination of the first two options.  For example, the next President may propose in his economic plan a top marginal rate on transfer taxes of thirty-five percent, the top marginal rate for gifts in 2010, and a unified credit of $3.5 million, the unified credit for taxable estates in 2009.  The final option is to allow the taxation of estates and gifts to revert to its pre-EGTRRA form.

The next President should also address corporate tax in his economic plan.  The United States has one of the highest corporate tax rates in the world, second only to Japan when state corporate income taxes are factored into the analysis.  In recent years, several countries, including Canada, Germany, and Sweden, have lowered their corporate tax rates. Consistent with other aspects of tax policy, the impact of the corporate tax is subject to debate, and the next President should give meaningful consideration to several critical questions before he includes a corporate tax cut in his economic plan.  Is this country at a competitive disadvantage when compared to other countries because of the high marginal corporate tax rate?  Do consumers or employees actually bear the corporate tax?  Do the alternative forms of business not subject to an entity-level tax (e.g., Subchapter S corporations, limited liability companies, and partnerships) make the corporate tax optional for businesses? 

Finally, the next President must be concerned that the Internal Revenue Code is becoming increasingly complicated because it is being used to influence behavior and stimulate the economy.  Whether the next President includes tax cuts or increases in his economic plan, the goals of simplicity and ease of administration should not be overlooked.