Here is the latest faculty scholarship appearing in the University of Wisconsin Law School Legal Studies Research Papers series found on SSRN.
- Regulation of the Legal Profession in China: An Historical Overview China Law & Society Review (forthcoming) by JOHN K.M. OHNESORGE, UW Law School
This essay begins with an exploration of the role of law and “proto lawyers” in imperial China, followed by a survey of the legal profession and its regulation in Republican China before 1949 (Section II). Section III addresses lawyer regulation during the high tide of Soviet and the Maoist influence (III.A.), and in the post-1978 reform period (III.B. and III.C.), including the regulation of foreign lawyers and law firms in the China market. Section III.D. turns to developments since Xi Jinping took power in 2012, and Section IV offers concluding observations.
- Taxing Composite Transactions 77 SMU L. Rev. (forthcoming) by EMILY CAUBLE, UW Law School
In a variety of contexts, taxpayers engage in composite transactions — essentially two transactions in one. For instance, when an individual sells property for less than its fair market value to a friend or relative, the transaction involves a sale and a gift. As another example, from time to time, retailers run promotions offering to rebate the price of merchandise if a team wins a sporting event. A buyer of the merchandise, effectively, makes a purchase and also places a bet on the sporting event’s outcome. Tax law’s treatment of composite transactions is not uniform. In some contexts, tax law fully bifurcates these transactions into their separate components. Under this bifurcated approach, a taxpayer who engages in a composite transaction receives the same tax treatment as a taxpayer who goes through the motions of engaging in the component transactions separately. In other contexts, tax law adopts a collapsed approach under which taxpayers obtain markedly different tax treatment by engaging in a composite transaction instead of carrying out the components as separate transactions. In still other contexts, tax law employs a hybrid approach that partially disentangles a composite transaction into its separate components but, nonetheless, bestows upon the composite transaction tax treatment that is not identical to what follows from engaging in the components as separate transactions. In addition to the existing approaches to composite transactions, other hypothetical approaches are possible. Each of the existing approaches and the conceivable alternatives offers various advantages and disadvantages when judged in terms of the approach’s propensity to reduce tax revenue, the approach’s tendency to trap unwary taxpayers while benefiting well-advised taxpayers, the likelihood that the approach will prompt taxpayers to alter their transactions for tax reasons, and the administrability of the approach. This Article undertakes an examination of composite transactions, evaluating advantages and disadvantages of different approaches. In addition, this Article presents new survey results that shed light on the counterintuitive nature of current law.
- Interpreting Ratification 1 J. Am. Con. Hist. 449 (2023) by DAVID S. SCHWARTZ, UW Law School, and Andrew Coan, University of Arizona, James E. Rogers College of Law
For two centuries, constitutional interpreters have relied on statements from the ratification debates—especially The Federalist—as persuasive authority in constitutional interpretation. This reliance, which has only increased with the rise of public-meaning originalism, mistakes Federalist campaign literature and oratory for objective and disinterested constitutional interpretation, and mistakenly dismisses the interpretations of Anti-Federalists as irrelevant.Focusing on the debate over enumerated powers, this article challenges the unfounded assumptions of Federalist objectivity and Anti-Federalist irrelevance and models the historical method necessary to interpret the ratification debates rigorously. More specifically, the article advances three central claims. First, the probable insincerity of much Federalist advocacy—including The Federalist—significantly undercuts its authority as evidence of a determinate original public meaning. Second, Anti-Federalist advocacy opposing ratification is much more probative evidence of original public meaning than has generally been recognized. Third, the most prominent arguments for privileging Federalist over Anti-Federalist advocacy are internally flawed and historically unfounded. More important, none of those arguments can be squared with the tenets of public-meaning originalism.All of this significantly undermines a principled originalist case for limiting federal power. It also calls into question the resolving power of originalism as a practical method for deciding controversial cases. Both of these implications would represent seismic shifts in U.S. constitutional law.
- Nonmarital Fathers in Family Court: Judges’ and Lawyers’ Perspectives 99 Washington Univ. Law. Rev. 1869 (2022) by TONYA L. BRITO, UW Law School
This Article presents findings revealing judges and government attorneys’ perspectives regarding nonmarital fathers as parents. The findings are drawn from original empirical data generated in a rigorous and extensive five-year qualitative study investigating the experiences of low-income litigants in family court. Specifically, this Article examines the perspectives of the judges and family court commissions who preside over IV-D child support cases as well the government attorneys who bring actions to enforce child support orders. These legal actors place a primacy on fathers’ role as economic providers and characterize the fathers as disengaged dads because they do not reliably pay child support. When fathers counter in court that they are engaged dads who provide nurturing and caretaking to their children, judges and government attorneys admonish them stating that parental involvement is not relevant in support enforcement cases. Yet, when fathers attempt to affirmatively assert legal claims to gain access to and parenting time with their children, those same legal actors silence them and tell them that the court cannot hear their parenting claims and they must pursue them in a separate proceeding elsewhere.
- Litigating Precarity: Low-Wage Workers and Child Support Enforcement 101 N.C. L. Rev. 1495 (2023) by TONYA L. BRITO, UW Law School, and Kathleen Wood, UW Law School
The child-support enforcement system has failed to come to grips with the labor market realities of the low-wage fathers it summons to court for nonpayment. This Article uses original empirical data gathered from a court-based ethnography and in-depth interviews with judges, lawyers, and noncustodial parents to illustrate how precarious workers experience the child-support enforcement system. The noncustodial fathers in the study are predominantly Black, low-wage, precarious workers who possess significant barriers to employment, including health problems, histories of incarceration, and limited education. Their real-life work experiences present vivid portraits of their difficulties obtaining and retaining stable jobs that provide a living wage. In an effort to find work, they often seek temp jobs or pursue a wide variety of ventures in the cash economy, everything from cutting hair to collecting cans and bottles for money. In light of their precarious work experiences and volatile earnings, it is no surprise that the noncustodial fathers in the study were not able to reliably pay their child-support order in full each month and, consequently, were summoned to court for nonpayment of support. Rather than confronting the reality of what the low-wage precarious labor market offers these fathers, the judges and government attorneys in enforcement hearings, and the child-support system more generally, stubbornly persist in enforcing child-support orders, premised on a full-time minimum wage job, that bear little relationship to the fathers’ actual earnings. Instead, inflated child-support orders set fathers up to accrue tremendous child-support debts that burden them and their families. And fathers experience harsh and counterproductive enforcement remedies, including the loss of their drivers’ licenses and threats of civil incarceration.
For the full text of these works and additional scholarship from UW Law faculty and staff, visit the University of Wisconsin Law School Legal Studies Research Paper Series on SSRN. A free email subscription is available at the top right of the page.