The 1997 “check-the-box” Regulations replaced the 1960 Kintner corporate resemblance tests, substituting simplicity and certainty for complexity and uncertainty regarding the federal tax classification of unincorporated business entities. The check-the-box Regulations have attracted some criticism. One broad modern critique argues that the regulations fail in several important respects to reach their full promise. While this Article is also critical of the check-the-box Regulations, the approach is different and indeed is based on an issue barely mentioned in the broader modern critique: “it does seem appropriate not to subject the latter type of entity [ordinary trust] to a regime designed to tax businesses.” Because of this conclusion, the issue was not further explored and the critics failed to seriously consider the reasonable alternatives and [...]
Beware the Federal Government Bearing Gifts: How the American Recovery and Reinvestment Act of 2009 Could Become a Whistleblowing Trojan Horse
According to legend, it was Odysseus of Ithaca who devised the plan to end the ten-year Trojan War by presenting to the Trojans a gift in the form of a giant wooden horse. The Greeks left the horse at the gates of Troy and apparently sailed away in an act of surrender. The Trojans accepted the gift and brought the horse through the gates and into the city. Unbeknownst to the Trojans, a Greek strike force was hidden in the horse. Late that evening, as the Trojans slept, the concealed Greeks slipped out of the horse and opened the gates to the returning Greek army, who torched Troy and ended the devastating war. The lesson, of course, is to be [...]
SYMPOSIUM: CONSTITUTIONAL REVIEW IN CHINA Professor Larry Catá Backer organized a superb symposium on Constitutional Review in the People’s Republic of China for the Suffolk University Law Review. The topic is clearly an important one not just in China, but throughout the world, which witnessed a flowering of constitutionalism in the latter part of the twentieth century. Although constitutionalism in the United States remains curiously and stubbornly different from the norm around the globe, the ideas born in the forge of the American Revolution have clearly played a role in shaping constitutionalism around the world. The title of the symposium—“Constitutional Review in China”—provides the key to understanding the participants’ contributions. Although constitutional judicial review has become the norm throughout the world’s [...]
A Constitutional Court for China Within the Chinese Communist Party: Scientific Development and a Reconsideration of the Institutional Role of the CCP
SYMPOSIUM: CONSTITUTIONAL REVIEW IN CHINA There are great shifts in constitutional thinking taking place today in China among elite Chinese constitutional scholars. Among this group of influential constitutional law scholars, Hu Jintao’s concept of scientific development (科学发展观) has taken a concrete turn in the advancement of theories of Chinese constitutionalism under its current normative framework. One of the more highly debated issues within Chinese constitutional law circles is constitutional review. The debate centers on the viability of transposing some version of the current parliamentary model of constitutional review into the Chinese constitutional system. Western models of constitutional review seem to insist on the necessity of an independent judiciary with a constitutionally sanctioned supervisory role over administrative and political organs as a [...]
SYMPOSIUM: CONSTITUTIONAL REVIEW IN CHINA A general perception exists that constitutional review is not a part of modern Chinese jurisprudence. That view is mistaken. The aim of this essay is to show that, while substantial constitutional change has not yet been established, it is arguable that a unique Chinese brand of constitutionalism has taken root and is evolving. A classic understanding of the concept of judicial review is “a court’s power to review the actions of other branches or levels of government,” including a court’s “power to invalidate legislative and executive actions as being unconstitutional.” Judicial review has become an established part of contemporary constitutionalism in Western jurisprudence. Constitutional review, another expression of judicial review closely associated with the discussion [...]
SYMPOSIUM: CONSTITUTIONAL REVIEW IN CHINA Nulla poena sine lege is a fundamental principle of criminal law. Its application is closely related to a basic understanding of criminal justice and separation of powers. The 1997 Chinese Criminal Law adopts a modified version of this principle. This modified version includes a negative and a positive dimension, and appears to be more rigid on the surface than the classic conception of the doctrine. However, in view of China’s penal statutes, the rigidity of the Chinese nulla poena doctrine has been offset by broad sentence ranges, vague criteria for offense classes, unconstrained sentence mitigation and multi-functional sentencing circumstances. . .
SYMPOSIUM: CONSTITUTIONAL REVIEW IN CHINA On July 24, 2001, the Supreme People’s Court of China (SPC or the Supreme Court) promulgated a new judicial interpretation. This interpretation, commonly referred to as the “Reply to Qi Yuling’s Case” took effect on August 13, 2001. On December 18, 2008, however, the Supreme Court annulled twenty-seven judicial interpretations at once, including the Reply to Qi Yuling’s Case. The reason given for the annulment of the Reply was that it was “no longer applicable.” From its birth to its demise, the Reply survived seven years, four months, and five days in China’s legal system. Although it was never actually applied to a single case after Qi Yuling’s Case, there were disputes regarding the Reply [...]
The Communist Party and the Law: An Outline of Formal and Less Formal Linkages between the Ruling Party and Other Legal Institutions in the People’s Republic of China
SYMPOSIUM: CONSTITUTIONAL REVIEW IN CHINA The Communist Party of China (CPC or the Party) is the absolute power center in Chinese politics. Deng Xiaoping made the Four Cardinal Principles paramount in Chinese politics: upholding the socialist path; the people’s democratic dictatorship; the leadership of the CPC; and the Marxism-Leninism-Mao Zedong Thought. Thus the Party stands aloof, assumes general oversight and coordinates all sides of the executive agencies, the National People’s Congress (NPC), the Chinese People’s Political Consultative Conference (CPPCC), and other mass organizations. If the latter is the flesh, and the armed forces the bones, of the Chinese political body, the Party is undoubtedly its brain, main nerves and tendons. The Party leads and controls all other political (and not [...]
CEO, CFO, COO . . . Cube Dweller? Attorney-Client Privilege and Corporate Communication: Whose Communications Should Massachusetts Law Protect?
Part II of this Note discusses the current state of attorney-client privilege law with respect to corporate communications. It first provides a brief overview of privilege law and introduces the public policy argument that the pursuit of truth in litigation demands restriction of attorney-client privilege rather than expansion to cover more communications, especially within the corporate context. It then outlines the development of the two basic tests for determining the scope of corporate privilege and discusses the Upjohn decision and its effect on the approaches of various states. Part II goes on to explain Massachusetts’s approach to an analogous issue and introduces Commissioner of Revenue v. Comcast Corp., a case the Massachusetts Supreme Judicial Court (SJC) recently decided that involved questions [...]
As Montville, Maine Goes, So Goes Wolcott, Vermont? A Primer on the Local Regulation of Genetically Modified Crops
On March 29th, 2008, the residents of Montville, Maine voted to ban the cultivation of genetically modified organisms (GMOs) within the town’s borders. They did so because, among other things, the town’s residents were concerned about the potential for genetic contamination from farms growing genetically modified crops (GM crops). In enacting its ordinance, Montville became the first local government outside of California to ban the cultivation of GM crops. . . Using Montville’s ordinance for illustrative purposes, this Note will focus on the threats that state law poses to local governments that seek to regulate GM crops. As background, the Note will begin with a summary of the federal regulatory regime with respect to GM crops. Then, the Note will provide [...]