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Jenner & Block LLP v. DOJ: Brief of \u3cem\u3eAmici Curiae\u3c/em\u3e 676 Law Professors in Support of Plaintiff\u27s Motion for Summary Judgment and for Declaratory and Permanent Injunctive Relief
No full textAmici 676 law professors submit this brief in support of Plaintiff Jenner & Block’s Motion for Summary Judgment and for Declaratory and Permanent Injunctive Relief (the “Motion”) to emphasize the threat that the President’s Executive Order (the “Order”) presents to the independence and integrity of the legal profession, the rights of clients to seek redress in the courts, and, by extension, the rule of law. As experts in constitutional law, legal ethics, and the history of the legal profession, among other fields, we have a significant interest in ensuring that the principles of free speech, freedom of association, the right to petition the government, and the right to counsel are upheld. As educators, amici have an interest in fostering the next generation of attorneys, and in preparing them to zealously represent clients and causes without fear of reprisal. Many of the amici also recently filed a similar brief in Perkins Coie LLP v. U.S. Department of Justice, et al., Case No. 1:25-cv-00716 (D.D.C.). Jenner and Block has consented to the filing of this brief and the Government has indicated it does not object to its filing. This brief is accompanied by amici’s motion for leave to file. A list of amici is provided in Appendix A.
Institutional affiliations are provided for purposes of identification only. They do not reflect the views of the listed institutions
Eliminating QBAI - One Step Forward, Two Steps Back?
No full textIn this installment of Reflections With Reuven Avi-Yonah, Avi-Yonah explains what makes an effective U.S. tax regime and uses those attributes to evaluate the One Big Beautiful Bill Act. There is plenty to criticize about the One Big Beautiful Bill Act (OBBBA, P.L. 119-21), signed into law by President Trump on July 4. It increases the deficit by about 5.5 trillion if its provisions are made permanent in 2029, like the Tax Cuts and Jobs Act provisions were in 2025. It is distributionally skewed to the top. It makes permanent the worst provision of the TCJA: section 199A (the passthrough deduction). Some of the other extensions, like the expanded standard deduction and expensing, are defensible, but the new provisions, like no tax on tips, overtime, or Social Security benefits and the $40,000 state and local tax deduction, are not
Why Did the IRS Restart Transfer Pricing Litigation?
No full textIn his excellent recent article on Coca-Cola’s appeal of its transfer pricing defeat in the Tax Court, Tax Notes contributing editor Ryan Finley explains that Coca-Cola’s main argument is based on the idea that “the IRS led the company into an ambush.” In 1996 the IRS entered into a closing agreement with Coca-Cola that provided that for the 1987 through 1995 tax years, the division of profits between Coca-Cola and its foreign “supply points” (the subsidiaries responsible for mixing the secret formula) would be based on a 10 percent return to the subsidiary and that any profit above that would be split equally between Coca-Cola and the subsidiaries. The IRS agreed that “the 10-50-50 apportionment formula yielded arm’s-length results consistent with section 482.” The closing agreement also gave “Coca-Cola prospective protection from any section 6662 accuracy-related penalties . . . provided that the company kept applying the 10-50-50 apportionment formula in later years.
Burdens of Proof in Criminal Procedure
No full textThe Supreme Court’s haphazard approach to allocating burdens of proof in criminal procedure has created a system in which constitutional rights can be rendered meaningless simply because defendants are required to prove things they cannot possibly know. Even though allocations of the burden of proof often drive litigation outcomes, the Court has failed to establish clear burden allocation structures for cases arising under the Fourth, Fifth, Sixth, and Fourteenth Amendments, leaving lower courts split about how to allocate the burdens. When the Supreme Court does allocate burdens, it often does so without explanation or consideration of key factors. Recent Supreme Court decisions have exacerbated the problem by subtly shifting burdens of proof to defendants without acknowledgment or justification, creating practical challenges for defendants who lack access to the information necessary to meet those burdens.
This Article provides a framework for analyzing burden allocation in criminal procedure under both federal and state law. It unpacks three categories—efficiency interests, fairness issues, and policy concerns, describing the factors within each category and discussing how each factor has informed and should inform the allocation of criminal procedure burdens. It argues that courts and legislators often overemphasize efficiency interests and policy concerns about system preservation at the expense of fairness and constitutional values. The Article then proposes solutions including strategic burden-splitting and burden-shifting regimes and a greater emphasis on fairness factors and rights-specific interests when allocating burdens of proof in criminal procedure
Should Country-by-Country Reporting Be Public?
No full textUnder action 13 of the base erosion and profit shifting project, large multinational enterprises are obligated to file country-by-country reports with tax authorities. As of April 2024, over 80 countries have adopted a multilateral agreement on exchanging CbC reports. The United States has not adopted the multilateral agreement, but regulations require U.S.-based MNEs to file these reports with the IRS, which can then exchange them with other countries under tax treaties
The Three Lives of Mamengwaa: Toward an Indigenous Canon of Construction
No full textFor too long, tribal judiciaries have been an afterthought in the story of tribal selfdetermination. Until the last half-century, many tribal nations relied on federally administered courts or had no court systems at all. As tribal nations continue to develop their law-enforcement and police powers, tribal justice systems now play a critical role in tribal self-determination. But because tribal codes and constitutions tend to borrow extensively from federal and state law, tribal judges find themselves forced to apply and enforce laws that are poor cultural fits for Indian communities—an unfortunate reality that hampers tribal judges’ ability to regulate and improve tribal governance.
Even where tribal legislatures leave room for tribal judges to apply tribal customary law, the results are haphazard at best. This Article surveys a sample of tribal-court decisions that have used customary law to regulate tribal governance. Tribal judges have interpreted customary law when it is expressly incorporated into tribal positive law, they have looked to customary law to provide substantive rules of decision, and they have relied on customary law as an interpretive tool. Reliance on customary law is ascendant, but still rare, in tribal courts.
Recognizing that Indian country will continue to rely on borrowed laws, and aiming to empower tribal courts to advance tribal governance, this Article proposes that tribal judges adopt an Indigenous canon of construction of tribal laws. Elevating a thirty-year-old taxonomy first articulated by Chief Justice Irvin in Stepetin v. Nisqually Indian Community, this Article recommends that tribal judges seek out and apply tribal customary law in cases where (1) the relevant doctrine arose in federal or state statutes or common law; (2) the tribal nation has not explicitly adopted federal or state law on a given issue in writing; (3) written tribal law was adopted or shifted as a result of the colonizer’s pressure and interests; and (4) tribal custom is inconsistent with the written tribal law, most especially if the law violates the relational philosophies of that tribal nation. Tribal judiciaries experienced at applying tribal customary law will be better positioned to do justice in Indian country
Limits of Contingent Convertible Bonds: Evidence from the Credit Suisse Collapse
No full textIn the aftermath of the Global Financial Crisis, regulators encouraged banks to issue contingent convertible bonds ( CoCos ) to improve the issuing bank\u27s stability. Banks around the world have issued more than $1 trillion worth of CoCos to date. Yet it is unclear whether CoCos have achieved their intended goal of improving stability. Leveraging the unexpected banking panic in March 2023, we show that issuing banks fared worse-as measured by abnormal equity returns and probabilities of default. We also examine market dynamics after 2023 and find that the largest banks have continued to issue CoCos with similar contractual terms, though issuer characteristics are changing
Generative artificial intelligence: Legal ethics issues
Get PDFGenerative artificial intelligence (GenAI) is transforming nearly every sector of society including the practice of law. Legal professionals are increasingly using AI tools for research, drafting, contract review, and even predicting judicial outcomes with as many as one third of respondents to a survey using GenAI daily. But with this rapid adoption come questions that go beyond efficiency and instead point to the core of legal ethics including issues such as competence, confidentiality, and professional judgment
John P. Davis and the Joint Committee
Get PDFThis Article uses archival research and social movement theory to recover a critical but untold story about how John P. Davis innovated novel modes of organizational mobilization and multidimensional advocacy to build power and movement at the intersection of race and the economy in the Jim Crow and New Deal era. It examines Davis’s mobilization of the Joint Committee on National Recovery (JCNR), recovers the mobilization and advocacy models Davis engineered, and tells of the fight Davis and the JCNR waged to achieve racial and economic justice and effect a new— and truly emancipatory—New Deal
100th Henry M. Campbell Moot Court Competition: Final Round
No full textNearly a century has passed since Henry Munroe Campbell’s law partners met with the dean of the University of Michigan Law School to establish a memorial for their friend and colleague. As a result, the Law School’s nascent “case club competition” was named in Mr. Campbell’s honor, a fitting way to combine his love for Michigan Law, oral advocacy, and the training of young lawyers.
I do not know what Mr. Campbell’s law partners envisioned when they met with the dean. They couldn’t have envisioned this beautiful room we are in today for the Final Round—Hutchins Hall didn’t even exist until 1933. And they couldn’t have imagined that, to judge the final round, we’d fly a distinguished panel of judges to Ann Arbor from all corners of the country. But they undoubtedly hoped that their generous gift would make a mark on generations of Michigan Law students. That hope has been fulfilled, and in spades.
To this day, participating in the Campbell Moot Court Competition teaches invaluable skills. The most visible of these is the tremendous oral advocacy you will witness this afternoon. The competitors have progressed through many rounds, refining their arguments at each step. By now, they know the case cold, and I’m sure you’ll be blown away by their command of the facts and the law. Listen more closely, and you’ll pick up on something else they’ve undoubtedly learned: that oral “argument” is a misnomer. The way to be a great advocate is not to argue with the court or with your opponent, but to listen to the court’s questions and to try to understand the best version of your adversary’s case. Only then can the advocate respond with the best version of his own. Indeed, it’s so important to understand one’s opponent’s case, that the Campbell competitors switch sides throughout the competition, advocating alternately for the rights of petitioner and respondent, or in this case, for the landlord and the state.
The Campbell competition teaches a great many skills—researching, brief writing, and public speaking, just to name a few. But if the generations of past and future competitors retain none of that, remembering only the skill of listening to and engaging with one another, we will have done well by the legacy of Henry M. Campbell and his gift to Michigan Law.
Joan LarsenAdviser, Campbell Moot CourtJudge, US Court of Appeals for the Sixth Circui