[Pages 1-78]
OPTIMAL BANKRUPTCY IN A NON-OPTIMAL WORLD
Richard M. Hynes*

Abstract:  Consumer bankruptcy insures individuals against misfortune. Like other forms of insurance, bankruptcy reduces an individual’s incentive to guard against misfortune and provides her with an incentive to overstate her need for relief. The “first-best,” or optimal, bankruptcy system, like the first-best tax or public assistance system, solves these moral hazards without any loss of efficiency. In bankruptcy, this first-best approach would deny relief to debtors responsible for their own distress and reduce the deserving debtors’ obligations to an amount commensurate with their ability to pay. While the Bankruptcy Code tries (in part) to follow this first-best approach, such a utopian system requires omniscient judges who can perfectly determine which debtors deserve relief and how much a deserving debtor can pay. Real bankruptcy judges have interpreted the Bankruptcy Code to implement a second-best, or feasible, bankruptcy system that accounts for the limited information that they possess.

[Pages 79-176]
ONE NATION AMONG MANY: POLICY IMPLICATIONS OF CROSS-BORDER TAX ARBITRAGE
Diane M. Ring*

Abstract:  Cross-border tax arbitrage arises where a transaction is subject to two or more countries’ differing tax regimes. Conflicts between the tax rules create unique opportunities for the parties to engage in profit-able tax planning—opportunities that would not be available if the transaction occurred entirely domestically in one of the countries. These opportunities have been a growing feature of the multi-juris-dictional business world and have raised issues concerning whether and how countries, such as the United States, should respond. This Article examines cross-border tax arbitrage in the context of both domestic tax policy and of other international tax issues, and considers potential responses. It proposes an analytic framework for cross-border tax arbit-rage based on specific case studies. The Article concludes by pro-posing a balancing test for determining the appropriate treatment of specific instances of cross-border tax arbitrage.

[Pages 177-206]
THE MALLEABLE USE OF HISTORY IN SUBSTANTIVE DUE PROCESS JURISPRUDENCE: HOW THE "DEEPLY ROOTED" TEST SHOULD NOT BE A BARRIER TO FINDING THE DEFENSE OF MARRIAGE ACT UNCONSTITUTIONAL UNDER THE FIFTH AMENDMENT'S DUE PROCESS CLAUSE
Veronica C. Abreu

Abstract:  Passed in 1996, the Defense of Marriage Act (“DOMA”) clarifies “marriage” as referring exclusively to a legal union between one man and one woman as husband and wife. Paralleling the intense social debate over same-sex marriages, DOMA sparked an array of scholarly attacks on its own constitutionality. The author argues that scholarship should not overlook substantive due process jurisprudence in challenging DOMA. The U.S. Supreme Court’s use of history in defining fundamental rights under substantive due process is sufficiently flexible to accommodate same-sex marriages within the fundamental right to marriage. The Court, although emphasizing tradition and history as the roots from which fundamental rights stem, has been willing to overlook, or to selectively read, such history and traditions. The author concludes that a failure to extend fundamental right status to same-sex marriage would in fact undermine some of the Court’s most notable precedents in this area of law.

[Pages 207-244]
A DANGEROUS PREOCCUPATION WITH FUTURE DANGER: WHY EXPERT PREDICTIONS OF FUTURE DANGEROUSNESS IN CAPITAL CASES ARE UNCONSTITUTIONAL
Eugenia T. La Fontaine

Abstract:  In Furman v. Georgia, the United States Supreme Court held that it was unconstitutional to administer the death penalty upon the sole, unguided discretion of juries. In response to Furman, some states amended their statutes to suggest or require that a jury assess the defendant’s future dangerousness before issuing a death sentence. Generally, this assessment is based on psychiatric expert testimony. This author explores the reliability and accuracy of psychiatric expert testimony of future dangerousness in light of the Court’s more recent Barefoot v. Estelle and Daubert v. Merrell Dow Pharmaceuticals decisions. The author argues that because the death penalty is so extreme and utterly final, heightened standards of reliability and accuracy should be used when determining the admissibility of evidence at the sentencing phases of capital trials.

[Pages 245-287]
SEARCHING FOR AN EFFICACIOUS JOINT INVENTORSHIP STANDARD
Joshua Matt

Abstract: Congress’s 1984 amendments to 35 U.S.C. § 116 lowered the bar for establishing joint inventorship of a patent, but did not clarify the uncertainty inherent in joint inventorship law. The crux of this uncertainty is the ability of a person to become a joint inventor because of a minor contribution to an invention and, thus, to obtain ownership rights commensurate with those of more significant contributors. This circumstance obscures the respective rights of researchers, enables dubious legal arguments regarding those rights, mandates unnecessary legal involvement in the research process, and inhibits research collaboration. This Note reviews current joint inventorship and joint ownership law and evaluates potential reforms. The Note concludes that a judicial “matrix approach” to joint inventorship, incorporating clear rules adapted to specific contextual concerns, would best achievethe policies and goals of patent law.