Legal Studies Research Paper Series

(From Legal Scholarship Network: Legal Studies Research Paper Series, University of North Carolina RSS)

The Double Track in Continental European Criminology

Michael Louis Corrado
This is a brief history of the "double track" criminal justice approach in Germany, Italy, and elsewhere on the Continent.

-November 2, 2016

Regulating Tax Return Preparation

Jay A. Soled and Kathleen DeLaney Thomas
Every year the U.S. government collects nearly $3 trillion of income and employment taxes, a large share of which is used to deliver social welfare benefits to the poor. With respect to these collections and deliveries, the Form 1040 (U.S. Individual Income Tax Return) seeks to ensure taxpayer accuracy. In the twenty-first century, there are two sets of key players that dominate the Form 1040 preparation and submission process, namely, tax return preparers and tax return preparation software companies. The former hand-hold taxpayers through the entire tax return preparation and submission process while the latter provide taxpayers with the necessary tools to complete and submit tax returns on their own. These two groups – tax return preparers and tax software companies – thus stand as vital intermediaries between the government and taxpayers, assisting in the preparation of over 90 percent of all individual tax returns. Despite the essential role that tax return submission plays in government function, Congress has exercised virtually no oversight over the process. Currently, regardless of education, knowledge, or experience, any person can prepare tax returns for compensation. Similarly, there are essentially no checks in place to ensure the substantive accuracy of tax returns prepared with tax software. As a result, millions of flawed tax returns are filed each year, which shortchange the government of much needed revenue, deprive some taxpayers of crucial government benefits, and leave others liable for back taxes and penalties. This article is the first to propose comprehensive reform of the tax return preparation process. It urges Congress to regulate both tax return preparers and tax preparation software companies. Regulatory oversight would include measures such as competency examinations for tax return preparers and mandatory software content designed to improve taxpayer compliance. Adoption of one or more of the reforms we propose should lead to more accurate tax returns, protect taxpayers, and ensure a fairer and more efficient tax system.

-November 2, 2016

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John F. Coyle
Slowly but surely, international trade agreements have disappeared from U.S. courts. This brief Essay provides a concise historical account of this disappearance — which it calls the Great Vanishing — and explains how and why it came to pass. It first describes how the Trade Preferences Act of 1979 banned private lawsuits to enforce international trade agreements. It then shows how the Uruguay Round Agreements Act of 1994 further restricted the ability of private parties to enforce these agreements indirectly. Finally, it shows how U.S. courts today refuse to look to international trade agreements — and to decisions rendered by international tribunals construing those agreements — to interpret domestic statutes that implement them. The Great Vanishing is noteworthy, the Essay contends, for two reasons. First, it represents by far the most comprehensive and successful attempt by Congress to banish a particular type of international law from the courts of the United States. Second, the Great Vanishing coincides with an era of greater skepticism when it comes to the private enforcement of public law. Indeed, in many respects it represents the culmination of that trend.

-November 27, 2016

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John F. Coyle and Joseph M. Green
This Article provides an account of the work performed by corporate lawyers who advise early-stage companies. Drawing upon interviews with practicing attorneys in New York City and the Research Triangle of North Carolina, we show how startup lawyers serve as transaction cost engineers by preparing prepackaged documents, by utilizing standard forms, and by providing non-legal advice to their clients. We show that startup lawyers serve as reputational intermediaries by screening their clients and by vouching for them with investors. We show that startup lawyers serve as regulatory compliance experts, transmitters of norms, and designers of innovative compensation packages. Finally, we show that West Coast norms of startup lawyering — which frame the relationship between the founders and venture capitalists as a partnership — have spread to other startup ecosystems in the United States over the past two decades.

-November 2, 2016

Chapter Four: Quarantine and the Problem of the Third Man

Michael Louis Corrado
Non-retributive attempts to justify punishment are open to some of the same objections that retributive attempts are subject to. Should we return to the preventive Quarantine Model? The attempt to justify that approach by analogy to medical quarantine fails. But Pereboom, Slobogin, and Robinson have raised a problem that I would call the Problem of the Third Man: the problem of the sane and rational but undeterrable offender. Pereboom raises it in support of Quarantine, and the inability to deal with it must be added to the objections to retributive and non-retributive theories of punishment; the problem is to deal with it without adopting the Quarantine Model of criminal justice. The “double track” solution, I suggest, amounts to the tacking together of two unacceptable models and in any event is unstable.

-November 2, 2016

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