Law Articles

This article courtesy of SSRN - Legal Scholarship Network and authored by WILLIAM W. BRATTON  and JOSEPH A. MCCAHERY .

 Abstract:     
This paper applies the economic theories of fiscal federalism and jurisdictional competition to the question whether the juridical presumption favoring decentralization of authority manifested in the European Union's subsidiarity principle has been rebutted in the case the Code of Conduct on Business Taxation. The Code is a pending EU tax coordination initiative that identifies and prohibits a zone of distortionary member state competition respecting taxation of capital. Evaluation of the Code under subsidiarity gives rise to three questions: (1) Whether subsidiarity's decentralization presumption implies a further presumption favoring tax competition; (2) whether subsidiarity's decentralization presumption can be overcome by a purely theoretical showing of distortionary effects of tax competition; and (3) whether, if empirical evidence of distortionary effects is required, the coordination legislation in question must address the empirically-established distortion with adjudicative particularity. The paper reaches a firm answer as to question (1): Subsidiarity does not favor tax competition, remaining neutral on the subject. It brings fiscal federalism theory to bear in reaching this conclusion: Under fiscal federalism the list of legitimate central government functions lengthens as a minimal federation like the EU successfully brings about economic integration by opening national borders to free movement. As member state economies become less heterogeneous and economic interconnections between them increase in number and depth, member state economic policies, particularly taxing and spending policies, cause more fiscal externalities. Fiscal federalism theory also describes allocative inefficiencies in competitive tax systems, particularly with respect to corporate income and commodity taxes, and highlights negative distributional consequences of tax competition. Coordinative initiatives directed to the elimination of resulting inefficiencies in resource allocations therefore hold a legitimate place on the EU's integration agenda. The paper's answers for questions (2) and (3) are more qualified. The strength of both subsidiarity's decentralization presumption and of any rebuttal case depend on political risks and economic factors specific to the situation. In the tax coordination case addressed, the risks turn out to be low, permitting the presumption to be rebutted by a strong theoretical case articulated on a spotty empirical record.

This article courtesy of SSRN - Legal Scholarship Network and authored by STANLEY Z. FISHER .

 Abstract:     
The Supreme Court in Kyles v. Whitley affirmed the prosecutor's duty under Brady v. Maryland to disclose exculpatory evidence to the defense, even if the police have not revealed the evidence to the prosecutor. According to the Court, prosecutors are responsible for ensuring that police communicate relevant evidence to her office. How should prosecutors implement that responsibility? Both England and the United States require prosecutors to disclose exculpatory evidence known to the police, but they take radically different approaches to implementing the prosecutor's duty. The English have legislated a comprehensive regulatory framework for police record keeping and revelation of case information to the prosecutor. They have also devoted significant resources to enforcing this regulation, including such measures as promulgation of appropriate forms and schedules, training of police and prosecutors, and the designation of particular police personnel to perform record-keeping duties. In the United States, by comparison, the absence of legislative or other regulation of police record keeping is starkly apparent. American legislatures have traditionally taken a "hands-off" approach to the regulation of police practices. Furthermore, we have not committed significant resources to the task of training police to record and reveal exculpatory evidence to prosecutors. Instead, we have relied on self-regulation by law enforcement agencies and the efforts of prosecutors. Neither resort has been, nor promises in future to be, effective in ensuring regular prosecutorial access to exculpatory evidence known to the police. Yet, without such access, prosecutors cannot meet their constitutional obligations to the defense. To address this problem, the author proposes amending ABA Model Rule 3.8 and the ABA Standards for Prosecution 3-2.7 and 3-3.11. The proposed amendments would (a) articulate the prosecutor's responsibility to make reasonable efforts to obtain access to exculpatory evidence known to the police, and (b) guide prosecutors on how to implement this professional responsibility.

This article courtesy of SSRN - Legal Scholarship Network and authored by RICHARD WEISBERG .

 Abstract:     
On September 30, 1997, the French Catholic church issued a formal apology to the Jewish people for the silence of many Catholic leaders and parishoners in the face of the victimization of Jews during the period known as Vichy. Encouraging though this document was, particularly when taken together with the Vatican's subsequent statement of regret about the Shoah more generally, the apology can only mark the very beginning of our understanding of the relationship to the Jews - in each European country - of the dominant religion. In France, the overwhelming faith of the population was, of course, Catholicism. Scholars and theologians continue to debate the historical role of Catholic anti-semitism in the persecution of French Jews (see, e.g., Pierre Birnbaum). My own archival findings relating to this issue, published in the last chapter of my book "Vichy Law and the Holocaust in France" (English edition, 1996 per Gordon & Breach and NYU Press; French edition, 1998 per editions des archives, Paris) may help to add specificity to the reconstruction of theology's place in developments that sent some 76,000 Jews to the death camps from France and that may also have helped rationalize the legalized looting of billions of francs of French property during the years 1940-44. Documents tend to show - in contrast to many private, Christian acts of mercy and charity towards the Jews - an official response by the Church that went beyond "silence" to actual complicity in the racist laws of the Vichy regime. The Church's position seems to have had less to do with politics - for example, the Church's fear of Communism - than with a complex theological and hermeneutical posture towards the Jew-as-Talmudist that will require close and sensitive scrutiny if prejudice is finally to be alleviated.

This paper examines the phenomenon I have called "Hermeneutic Flexibility" and its effect on French Catholic discourse during the War. I elaborate on my earlier suggestion that a special way of reading texts helped otherwise decent French professionals to abandon quickly their own finest traditions of equality under the law. Both in its specific declarations, and in its theological doctrine, the Church actively produced in those brought up as Catholics a flexibility that resulted in special persecution of the Jew-as-Talmudist.

"Flexibility," on this argument, means an ability within a given community of readers to move quickly from earlier understandings of established texts. Unlike the "talmudist," the flexible reader shifts with the situation to alter understandings that may have existed for decades, even centuries. So it was that the French ingrained idea of egalitarianism budged to exclude the entire population of Jewish people. To do this, to traduce their own traditions so rapidly, lawyers needed the help of the reading tradition they grew up with. Catholic theology, (which in fact opined from the Vatican in 1941 that there was nothing basically wrong with Vichy's racial laws) provided the doctrinal basis for flexible digressions from ethical behavior.

This article courtesy of SSRN - Legal Scholarship Network and authored by HENRY T. GREELY .

 Abstract:     
The Republic of Iceland has authorized a private, for-profit firm, deCODE Genetics, to construct a database of its population's medical records as part of a larger plan by deCODE for human genetics research. This effort has been much discussed, although often without sufficient understanding of the existing statute and the actual status of deCODE's plans. This article attempts first to provide the necessary background information on Iceland, genetics research in Iceland, deCODE, and the terms of the law authorizing Iceland's Health Sector Database. It then examines five objections to the statute, and the larger plan, those based on commercialization, lack of informed consent, risks to privacy, the effects on other esearch, and financial unfairness. It concludes that the Icelandic plan is not a good precedent for similar research elsewhere.