Pub Date : 2020-08-17DOI: 10.1002/9780470772973.CH4
B. Winick, Charles Lo Piccolo, Willy Anand, Lester Hartswick
This chapter argues that people diagnosed with psychopathy alone should not qualify for inpatient involuntary hospitalization or preventive outpatient commitment. Preventive outpatient commitment is controversial. Even though it involves a lesser intrusion on liberty than inpatient commitment, it nonetheless involves a deprivation of liberty protected by due process. As a result, the nature of such commitment must satisfy the reasons that serve to justify it. Outpatient commitment is justified largely based on parens patriae considerations, and this typically requires that the patient be incompetent to make treatment decisions for himself or herself. Moreover, such commitment contemplates that the individual will be provided treatment that is effective for his or her condition. As involuntary treatment generally is not effective for people suffering from psychopathy, the chapter argues that outpatient commitment is inappropriate for this population for parens patriae purposes. Furthermore, people with this condition do not suffer from cognitive impairments that render them incompetent. An additional purpose justifying commitment is protection of the community from harm, a purpose grounded in the state's police power. To justify commitment for this purpose, however, the person must suffer from a condition that makes it difficult for him to control his behavior. The chapter argues that individuals with psychopathy can control their conduct. As a result, the chapter concludes that outpatient commitment based on the police power also is inappropriate. Instead of inpatient or outpatient commitment, the chapter argues that the criminal law should be used for purposes of protecting the community from the antisocial conduct of those suffering from psychopathy.
{"title":"Should Psychopathy Qualify for Preventive Outpatient Commitment?","authors":"B. Winick, Charles Lo Piccolo, Willy Anand, Lester Hartswick","doi":"10.1002/9780470772973.CH4","DOIUrl":"https://doi.org/10.1002/9780470772973.CH4","url":null,"abstract":"This chapter argues that people diagnosed with psychopathy alone should not qualify for inpatient involuntary hospitalization or preventive outpatient commitment. Preventive outpatient commitment is controversial. Even though it involves a lesser intrusion on liberty than inpatient commitment, it nonetheless involves a deprivation of liberty protected by due process. As a result, the nature of such commitment must satisfy the reasons that serve to justify it. Outpatient commitment is justified largely based on parens patriae considerations, and this typically requires that the patient be incompetent to make treatment decisions for himself or herself. Moreover, such commitment contemplates that the individual will be provided treatment that is effective for his or her condition. As involuntary treatment generally is not effective for people suffering from psychopathy, the chapter argues that outpatient commitment is inappropriate for this population for parens patriae purposes. Furthermore, people with this condition do not suffer from cognitive impairments that render them incompetent. An additional purpose justifying commitment is protection of the community from harm, a purpose grounded in the state's police power. To justify commitment for this purpose, however, the person must suffer from a condition that makes it difficult for him to control his behavior. The chapter argues that individuals with psychopathy can control their conduct. As a result, the chapter concludes that outpatient commitment based on the police power also is inappropriate. Instead of inpatient or outpatient commitment, the chapter argues that the criminal law should be used for purposes of protecting the community from the antisocial conduct of those suffering from psychopathy.","PeriodicalId":136236,"journal":{"name":"University of Miami School of Law Legal Studies Research Paper Series","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116236418","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
JoNel Newman, F. Lawrie, Donald James Nicolson, Melissa Swain
How does a theatre method developed in the 1960s and 1970s by a Brazilian intellectual and revolutionary activist fit into clinical legal education? This paper urges the legal profession, and particularly law school clinics, to use the pathbreaking Forum Theatre method developed by Augusto Boal to train lawyers. Boal, a colleague and disciple of Paulo Freire (Pedagogy of the Oppressed), developed Forum Theatre (also called Theatre of the Oppressed) to transform traditional sit-and-watch theatre into a democratic, participatory, and collaborative production between the actors and the audience aimed at achieving social justice. Spectators in the audience halt the oppressive element in a scenario, take the place of characters, and eliminate oppression. Because of the already frequent use of role-playing methodologies in clinical legal education, as well as its client-centered approach to legal representation, law school clinics are an ideal place to develop Forum Theatre as an instructional exercise for lawyers. This method offers students a excellent opportunity to identify oppression in legal settings, to interrupt it, to observe and check their own paternalistic instincts, to empower vulnerable clients, and to act in other more ethically informed ways. The authors introduce Boal and Forum Theatre methodology, review the role of Forum Theatre in education, especially the fairly sparse literature on its use in legal education. They then recount their experiences using this medium in clinical legal training and offer some suggestions and conclusions for legal educators interested in trying this technique. They also attached as appendices a selection of scripts that they have developed and used in order to illustrate some of the points made and to provide examples for others to use.
{"title":"Theatre and Revolution in Clinical Legal Education","authors":"JoNel Newman, F. Lawrie, Donald James Nicolson, Melissa Swain","doi":"10.2139/SSRN.3312251","DOIUrl":"https://doi.org/10.2139/SSRN.3312251","url":null,"abstract":"How does a theatre method developed in the 1960s and 1970s by a Brazilian intellectual and revolutionary activist fit into clinical legal education? This paper urges the legal profession, and particularly law school clinics, to use the pathbreaking Forum Theatre method developed by Augusto Boal to train lawyers. Boal, a colleague and disciple of Paulo Freire (Pedagogy of the Oppressed), developed Forum Theatre (also called Theatre of the Oppressed) to transform traditional sit-and-watch theatre into a democratic, participatory, and collaborative production between the actors and the audience aimed at achieving social justice. Spectators in the audience halt the oppressive element in a scenario, take the place of characters, and eliminate oppression. Because of the already frequent use of role-playing methodologies in clinical legal education, as well as its client-centered approach to legal representation, law school clinics are an ideal place to develop Forum Theatre as an instructional exercise for lawyers. This method offers students a excellent opportunity to identify oppression in legal settings, to interrupt it, to observe and check their own paternalistic instincts, to empower vulnerable clients, and to act in other more ethically informed ways. \u0000 \u0000The authors introduce Boal and Forum Theatre methodology, review the role of Forum Theatre in education, especially the fairly sparse literature on its use in legal education. They then recount their experiences using this medium in clinical legal training and offer some suggestions and conclusions for legal educators interested in trying this technique. They also attached as appendices a selection of scripts that they have developed and used in order to illustrate some of the points made and to provide examples for others to use.","PeriodicalId":136236,"journal":{"name":"University of Miami School of Law Legal Studies Research Paper Series","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128282198","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We are at risk of becoming digitally transparent to both government and the private sector. As it is increasingly obvious that US law is not going to prevent the destruction of personal privacy, we urgently need better privacy tools, baked into the way we do transactions. A partial, but significant, privacy enhancement would be a new Identity Management Architecture (IMA) enabling multiple privacy-protective transaction-empowered digital personae per user. Each persona (or ‘nym if you prefer) would have the ability to communicate, and at least a limited ability to transact, in a manner that would not be linkable, or least very difficult to link, to the real identity of the user. By using a variety of personae for online transactions, reading, and communication, users would defeat — or at least vastly reduce the effectiveness — of commercial and perhaps also governmental profiling.The problem is that an IMA that enables privacy enhanced personae is most unlikely to reach wide acceptance unless it is designed in a manner that makes it easy to use. It will not receive US governmental acceptance unless it also reduces the extent to which the personae can be used to break laws and evade contractual obligations. This paper thus discusses the legal and political considerations that might inform a requirements document for such an IMA with special reference to US law and likely US government reaction. It includes a survey of laws that parties engaging in or enabling anonymous or pseudonymous transactions should consider, and concludes with discussion of several critical design decisions including transnational credentials, the possibility of identity escrow for transactional personae, and speculation as to how personae might fare in the marketplace.The timeliness of this proposal is demonstrated by David Chaum’s recent announcement of new privacy protocol, PrivaTegrity, that contains most of the features needed to engineer a privacy-enhanced IMA that might be acceptable to law enforcement. The need for some action, whether based on PrivaTegrity or otherwise, is very great — so critical that it may time to accept the previously unthinkable, and accept some form of identity escrow as part of the IMA.
{"title":"Building Privacy into the Infrastructure: Towards a New Identity Management Architecture","authors":"A. Froomkin","doi":"10.2139/SSRN.2740719","DOIUrl":"https://doi.org/10.2139/SSRN.2740719","url":null,"abstract":"We are at risk of becoming digitally transparent to both government and the private sector. As it is increasingly obvious that US law is not going to prevent the destruction of personal privacy, we urgently need better privacy tools, baked into the way we do transactions. A partial, but significant, privacy enhancement would be a new Identity Management Architecture (IMA) enabling multiple privacy-protective transaction-empowered digital personae per user. Each persona (or ‘nym if you prefer) would have the ability to communicate, and at least a limited ability to transact, in a manner that would not be linkable, or least very difficult to link, to the real identity of the user. By using a variety of personae for online transactions, reading, and communication, users would defeat — or at least vastly reduce the effectiveness — of commercial and perhaps also governmental profiling.The problem is that an IMA that enables privacy enhanced personae is most unlikely to reach wide acceptance unless it is designed in a manner that makes it easy to use. It will not receive US governmental acceptance unless it also reduces the extent to which the personae can be used to break laws and evade contractual obligations. This paper thus discusses the legal and political considerations that might inform a requirements document for such an IMA with special reference to US law and likely US government reaction. It includes a survey of laws that parties engaging in or enabling anonymous or pseudonymous transactions should consider, and concludes with discussion of several critical design decisions including transnational credentials, the possibility of identity escrow for transactional personae, and speculation as to how personae might fare in the marketplace.The timeliness of this proposal is demonstrated by David Chaum’s recent announcement of new privacy protocol, PrivaTegrity, that contains most of the features needed to engineer a privacy-enhanced IMA that might be acceptable to law enforcement. The need for some action, whether based on PrivaTegrity or otherwise, is very great — so critical that it may time to accept the previously unthinkable, and accept some form of identity escrow as part of the IMA.","PeriodicalId":136236,"journal":{"name":"University of Miami School of Law Legal Studies Research Paper Series","volume":"114 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131718542","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the United States and elsewhere, basic principles of international taxation have, in recent years, become the subject of vigorous debate and controversy. Historically, the United States has taxed residents, including domestic corporations, on worldwide income, but has allowed them credit for foreign income taxes in order to alleviate double taxation. Other countries, particularly countries of continental Europe, have long used an exemption system under which income from foreign business activities is exempted from home-country tax, while passive investment income is taxed with a worldwide/credit system similar to that of the United States. Recently, several countries that historically had worldwide/credit systems switched to exemption systems. Some scholars, business representatives, and politicians argue that the United States should do the same. This article examines the law of one such country, Japan, and compares the existing U.S. system with the new Japanese exemption system. A principal conclusion of the article is that a simple switch by the United States, without other corrective changes, would open up tax minimization and avoidance opportunities that are not available to Japanese companies, even after the recent changes in Japanese law.
{"title":"Credit vs. Exemption: A Comparative Study of Double Tax Relief in the United States and Japan","authors":"Lawrence Lokken, Y. Kitamura","doi":"10.2139/SSRN.1757990","DOIUrl":"https://doi.org/10.2139/SSRN.1757990","url":null,"abstract":"In the United States and elsewhere, basic principles of international taxation have, in recent years, become the subject of vigorous debate and controversy. Historically, the United States has taxed residents, including domestic corporations, on worldwide income, but has allowed them credit for foreign income taxes in order to alleviate double taxation. Other countries, particularly countries of continental Europe, have long used an exemption system under which income from foreign business activities is exempted from home-country tax, while passive investment income is taxed with a worldwide/credit system similar to that of the United States. Recently, several countries that historically had worldwide/credit systems switched to exemption systems. Some scholars, business representatives, and politicians argue that the United States should do the same. This article examines the law of one such country, Japan, and compares the existing U.S. system with the new Japanese exemption system. A principal conclusion of the article is that a simple switch by the United States, without other corrective changes, would open up tax minimization and avoidance opportunities that are not available to Japanese companies, even after the recent changes in Japanese law.","PeriodicalId":136236,"journal":{"name":"University of Miami School of Law Legal Studies Research Paper Series","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115363554","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The sale of real estate or other business or investment assets often entails the transfer of liabilities by the seller of the property. The liabilities involved may be recourse or nonrecourse, fixed or contingent, and may involve expenditures that may be tax deductible, may require capitalization or may be neither deductible or capitalizable. The definition of liability is not always clear. In this article the authors recommended use of a definition included in a then temporary partnership regulation, but that has now been adopted by Reg.1.752-1(a)(4), and the author still believe it should be considered applicable more broadly. They note that it has subsequently be used in several tax shelter cases, particularly ones involving short sale obligations. In this article the authors seek to deal comprehensively with the treatment of liabilities in a variety of contexts, including installment sales and nonrecognition exchanges. Accordingly, despite its age, much if not most of the discussion is still valid.
{"title":"Sale of Business Assets: Contingent Liabilities and Economic Performance","authors":"E. Manning, Jerome M. Hesch","doi":"10.2139/SSRN.1503457","DOIUrl":"https://doi.org/10.2139/SSRN.1503457","url":null,"abstract":"The sale of real estate or other business or investment assets often entails the transfer of liabilities by the seller of the property. The liabilities involved may be recourse or nonrecourse, fixed or contingent, and may involve expenditures that may be tax deductible, may require capitalization or may be neither deductible or capitalizable. The definition of liability is not always clear. In this article the authors recommended use of a definition included in a then temporary partnership regulation, but that has now been adopted by Reg.1.752-1(a)(4), and the author still believe it should be considered applicable more broadly. They note that it has subsequently be used in several tax shelter cases, particularly ones involving short sale obligations. In this article the authors seek to deal comprehensively with the treatment of liabilities in a variety of contexts, including installment sales and nonrecognition exchanges. Accordingly, despite its age, much if not most of the discussion is still valid.","PeriodicalId":136236,"journal":{"name":"University of Miami School of Law Legal Studies Research Paper Series","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127190761","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper is about a historic strike of service workers at the University of Miami in 2006. Section I narrates the strike from the perspective of the workers, low wage immigrant workers in a market organized by a large labor contractor leased to a large corporate enduser. Section II analyzes whether joint employer status under National Labor Relations Act should be found in these market circumstances, and suggests changes in the statute and interpretive doctrines to make effective collective bargaining feasible in such labor markets. Section III shows how the university and the workers developed substantially different legal consciousness of the strike.
{"title":"Of Service Workers, Contracting Out, Joint Employment, Legal Consciousness, and the University of Miami","authors":"K. Casebeer","doi":"10.2139/SSRN.1020623","DOIUrl":"https://doi.org/10.2139/SSRN.1020623","url":null,"abstract":"This paper is about a historic strike of service workers at the University of Miami in 2006. Section I narrates the strike from the perspective of the workers, low wage immigrant workers in a market organized by a large labor contractor leased to a large corporate enduser. Section II analyzes whether joint employer status under National Labor Relations Act should be found in these market circumstances, and suggests changes in the statute and interpretive doctrines to make effective collective bargaining feasible in such labor markets. Section III shows how the university and the workers developed substantially different legal consciousness of the strike.","PeriodicalId":136236,"journal":{"name":"University of Miami School of Law Legal Studies Research Paper Series","volume":"99 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127106631","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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