Erik Jensen - Academia.edu (original) (raw)

Papers by Erik Jensen

Perspectives on Politics, 2006

Cleveland State Law Review, 2006

Case Western Reserve law review, 2011

(or Edgar Hahn, as he is sometimes known 1) was one of the bright young men Louis Toepfer-legenda... more (or Edgar Hahn, as he is sometimes known 1) was one of the bright young men Louis Toepfer-legendary dean and later Case Western Reserve University president-brought to this law school in the late 1960s. Youthful though Austin then was, I suspect he already had curmudgeonly qualities. If he didn't, he developed them soon thereafter, and he has kept them well-watered and fertilized. 2 He'll enter retirement as a Certified Curmudgeon. Arthur Austin is known to generations of CWRU students. He has made Contracts come alive, sort of, at six o'clock in the morning. 3 His classes have stimulated interest in antitrust, 4 unfair competition, 5 † David L. Brennan Professor of Law, Case Western Reserve University. Using lots of footnotes in this essay seemed appropriate. See Arthur D. Austin, Footnotes as Product Differentiation, 40 VAND. L. REV. 1131 (1987) [hereinafter Footnotes] (making chic the study of footnoting practices). And I thank William Faulkner, Willie Mays, and Ralph Sampson for their support. Cf. Arthur D. Austin, The "Custom of Vetting" as a Substitute for Peer Review, 32 ARIZ. L. REV. 1 (1989) [hereinafter Vetting] (noting increasing use of famous names in vetting footnotes, like this one, to impress student editors and to increase authors' chances of being published). 1 Since 1978 Austin has been the Edgar A. Hahn Professor of Jurisprudence, and those citing his work occasionally mix up Austin and Hahn.

My colleague as faculty editor at CWRU, Jonathan Entin, and the real editor of the Journal during... more My colleague as faculty editor at CWRU, Jonathan Entin, and the real editor of the Journal during those six and a half years, Associate Editor Kerstin Trawick (not a law teacher, but far better than a law teacher), wouldn't necessarily agree with what I say in this essay. In fact, I suspect they would have discouraged me from writing it, had they only known. In addition, nothing in this essay reflects official AALS policy about anything.

J. Legal Educ., 1989

Professorial irritation with law reviews is not new, of course, but until recently the discipline... more Professorial irritation with law reviews is not new, of course, but until recently the discipline had learned to live with the stupidities and inefficiencies of the legal publication system. Yes, we are stuck with the effects of student editors'" neophytic judgment," 1 but we gain a ...

Does the constitutional requirement that the compensation of federal judges not be diminished dur... more Does the constitutional requirement that the compensation of federal judges not be diminished during their Continuance in office preclude Congress from subjecting sitting judges to the social security taxes from which they had previously been exempt? In Hatter v. United States, the Federal Circuit ruled for judges claiming such an exemption, and, after the Supreme Court granted cert, the authors wrote the first of these two articles, arguing why, for a multitude of reasons, the Supreme Court should reverse and make it clear that judges may constitutionally be subject to a tax of general application. After the Supreme Court held for the judges in 2001, the authors wrote the second article, criticizing the Courts decision describing why the Court had gotten the result and analysis wrong, but also explaining why the damage down done was minimal because the issue is unlikely to arise again

Applied Accounting - Practitioner eJournal, 2018

While the legislation popularly (or unpopularly) known as the Tax Cuts and Jobs Act of 2017 was w... more While the legislation popularly (or unpopularly) known as the Tax Cuts and Jobs Act of 2017 was working its way through Congress, many colleges and universities were afraid that the repeal of Internal Revenue Code section 117(d), as provided in the House version of the bill, would have catastrophic effects on American graduate education. The concern was that, after repeal, graduate teaching and research assistants would be taxed on their tuition reductions, and the measure of the income would be determined using the stated tuition figure — the sticker price — for the academic institution. Section 117(d) survived, but it could come under challenge again and it’s worth considering what difference repeal would really make. This article concludes that repeal would have negatively affected few graduate students; the real effect would have been on undergraduate tuition reductions provided to faculty, staff, and dependents. In addition, the article questions the common assumption that, whe...

Roger Williams university law review, 2006

At bottom, what all of this means to Professor Johnson is that, in evaluating the legitimacy of a... more At bottom, what all of this means to Professor Johnson is that, in evaluating the legitimacy of an unapportioned tax today, we should go back to the understanding of the Hylton justices, under which nothing but a capitation tax or a tax on real estate should be subject to apportionment. 8 And, if there's any doubt about the appropriate result in a particular case, Johnson urges us to use "manipulative expansion" of 5 See U.S. Const. art. I, sec. 2, cl. 3: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons. See also U.S. Const. art. I, sec. 9, cl. 4 ("No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."). Apportionment therefore means that a state with, say, one-twentieth of the national population must bear one-twentieth of the aggregate liability associated with any direct tax, regardless of the state's percentage of the national tax base. 6 3 U.S. (3 Dall.) 171 (1796). 7 157 U.S. 429 (1895) (holding unapportioned tax on income from real estate unconstitutional); 158 U.S. 601 (1895) (extending principle to income from personal property and rejecting entire 1894 tax). 8 Hylton, 3 U.S. (3 Dall.) at 175 (Chase, J.); id. at 183 (Iredell, J.); id. at 177 (Paterson, J.); see infra notes 75-77 and accompanying text. Given what Johnson says about wealth taxes, he must think that even a tax on real estate is no longer subject to apportionment.

At bottom, what all of this means to Professor Johnson is that, in evaluating the legitimacy of a... more At bottom, what all of this means to Professor Johnson is that, in evaluating the legitimacy of an unapportioned tax today, we should go back to the understanding of the Hylton justices, under which nothing but a capitation tax or a tax on real estate should be subject to apportionment. 8 And, if there's any doubt about the appropriate result in a particular case, Johnson urges us to use "manipulative expansion" of 5 See U.S. Const. art. I, sec. 2, cl. 3: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons. See also U.S. Const. art. I, sec. 9, cl. 4 ("No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."). Apportionment therefore means that a state with, say, one-twentieth of the national population must bear one-twentieth of the aggregate liability associated with any direct tax, regardless of the state's percentage of the national tax base. 6 3 U.S. (3 Dall.) 171 (1796). 7 157 U.S. 429 (1895) (holding unapportioned tax on income from real estate unconstitutional); 158 U.S. 601 (1895) (extending principle to income from personal property and rejecting entire 1894 tax). 8 Hylton, 3 U.S. (3 Dall.) at 175 (Chase, J.); id. at 183 (Iredell, J.); id. at 177 (Paterson, J.); see infra notes 75-77 and accompanying text. Given what Johnson says about wealth taxes, he must think that even a tax on real estate is no longer subject to apportionment.

Journal of Legal Education, 2016

This is an essay on grammar and writing, with extended consideration of the value of Strunk & Whi... more This is an essay on grammar and writing, with extended consideration of the value of Strunk & White as a guide. Although the essay defends Strunk & White against several of that volume’s strongest critics, it also illustrates that even the best writers — and E. B. White was terrific, as was Antonin Scalia — sometimes make mistakes. (At great, perhaps excessive, length, the essay dissects a problematic passage in White’s “Death of a Pig.”) We should learn from those mistakes, not accept them as inevitable.

Perspectives on Politics, 2006

Cleveland State Law Review, 2006

Case Western Reserve law review, 2011

(or Edgar Hahn, as he is sometimes known 1) was one of the bright young men Louis Toepfer-legenda... more (or Edgar Hahn, as he is sometimes known 1) was one of the bright young men Louis Toepfer-legendary dean and later Case Western Reserve University president-brought to this law school in the late 1960s. Youthful though Austin then was, I suspect he already had curmudgeonly qualities. If he didn't, he developed them soon thereafter, and he has kept them well-watered and fertilized. 2 He'll enter retirement as a Certified Curmudgeon. Arthur Austin is known to generations of CWRU students. He has made Contracts come alive, sort of, at six o'clock in the morning. 3 His classes have stimulated interest in antitrust, 4 unfair competition, 5 † David L. Brennan Professor of Law, Case Western Reserve University. Using lots of footnotes in this essay seemed appropriate. See Arthur D. Austin, Footnotes as Product Differentiation, 40 VAND. L. REV. 1131 (1987) [hereinafter Footnotes] (making chic the study of footnoting practices). And I thank William Faulkner, Willie Mays, and Ralph Sampson for their support. Cf. Arthur D. Austin, The "Custom of Vetting" as a Substitute for Peer Review, 32 ARIZ. L. REV. 1 (1989) [hereinafter Vetting] (noting increasing use of famous names in vetting footnotes, like this one, to impress student editors and to increase authors' chances of being published). 1 Since 1978 Austin has been the Edgar A. Hahn Professor of Jurisprudence, and those citing his work occasionally mix up Austin and Hahn.

My colleague as faculty editor at CWRU, Jonathan Entin, and the real editor of the Journal during... more My colleague as faculty editor at CWRU, Jonathan Entin, and the real editor of the Journal during those six and a half years, Associate Editor Kerstin Trawick (not a law teacher, but far better than a law teacher), wouldn't necessarily agree with what I say in this essay. In fact, I suspect they would have discouraged me from writing it, had they only known. In addition, nothing in this essay reflects official AALS policy about anything.

J. Legal Educ., 1989

Professorial irritation with law reviews is not new, of course, but until recently the discipline... more Professorial irritation with law reviews is not new, of course, but until recently the discipline had learned to live with the stupidities and inefficiencies of the legal publication system. Yes, we are stuck with the effects of student editors'" neophytic judgment," 1 but we gain a ...

Does the constitutional requirement that the compensation of federal judges not be diminished dur... more Does the constitutional requirement that the compensation of federal judges not be diminished during their Continuance in office preclude Congress from subjecting sitting judges to the social security taxes from which they had previously been exempt? In Hatter v. United States, the Federal Circuit ruled for judges claiming such an exemption, and, after the Supreme Court granted cert, the authors wrote the first of these two articles, arguing why, for a multitude of reasons, the Supreme Court should reverse and make it clear that judges may constitutionally be subject to a tax of general application. After the Supreme Court held for the judges in 2001, the authors wrote the second article, criticizing the Courts decision describing why the Court had gotten the result and analysis wrong, but also explaining why the damage down done was minimal because the issue is unlikely to arise again

Applied Accounting - Practitioner eJournal, 2018

While the legislation popularly (or unpopularly) known as the Tax Cuts and Jobs Act of 2017 was w... more While the legislation popularly (or unpopularly) known as the Tax Cuts and Jobs Act of 2017 was working its way through Congress, many colleges and universities were afraid that the repeal of Internal Revenue Code section 117(d), as provided in the House version of the bill, would have catastrophic effects on American graduate education. The concern was that, after repeal, graduate teaching and research assistants would be taxed on their tuition reductions, and the measure of the income would be determined using the stated tuition figure — the sticker price — for the academic institution. Section 117(d) survived, but it could come under challenge again and it’s worth considering what difference repeal would really make. This article concludes that repeal would have negatively affected few graduate students; the real effect would have been on undergraduate tuition reductions provided to faculty, staff, and dependents. In addition, the article questions the common assumption that, whe...

Roger Williams university law review, 2006

At bottom, what all of this means to Professor Johnson is that, in evaluating the legitimacy of a... more At bottom, what all of this means to Professor Johnson is that, in evaluating the legitimacy of an unapportioned tax today, we should go back to the understanding of the Hylton justices, under which nothing but a capitation tax or a tax on real estate should be subject to apportionment. 8 And, if there's any doubt about the appropriate result in a particular case, Johnson urges us to use "manipulative expansion" of 5 See U.S. Const. art. I, sec. 2, cl. 3: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons. See also U.S. Const. art. I, sec. 9, cl. 4 ("No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."). Apportionment therefore means that a state with, say, one-twentieth of the national population must bear one-twentieth of the aggregate liability associated with any direct tax, regardless of the state's percentage of the national tax base. 6 3 U.S. (3 Dall.) 171 (1796). 7 157 U.S. 429 (1895) (holding unapportioned tax on income from real estate unconstitutional); 158 U.S. 601 (1895) (extending principle to income from personal property and rejecting entire 1894 tax). 8 Hylton, 3 U.S. (3 Dall.) at 175 (Chase, J.); id. at 183 (Iredell, J.); id. at 177 (Paterson, J.); see infra notes 75-77 and accompanying text. Given what Johnson says about wealth taxes, he must think that even a tax on real estate is no longer subject to apportionment.

At bottom, what all of this means to Professor Johnson is that, in evaluating the legitimacy of a... more At bottom, what all of this means to Professor Johnson is that, in evaluating the legitimacy of an unapportioned tax today, we should go back to the understanding of the Hylton justices, under which nothing but a capitation tax or a tax on real estate should be subject to apportionment. 8 And, if there's any doubt about the appropriate result in a particular case, Johnson urges us to use "manipulative expansion" of 5 See U.S. Const. art. I, sec. 2, cl. 3: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons. See also U.S. Const. art. I, sec. 9, cl. 4 ("No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."). Apportionment therefore means that a state with, say, one-twentieth of the national population must bear one-twentieth of the aggregate liability associated with any direct tax, regardless of the state's percentage of the national tax base. 6 3 U.S. (3 Dall.) 171 (1796). 7 157 U.S. 429 (1895) (holding unapportioned tax on income from real estate unconstitutional); 158 U.S. 601 (1895) (extending principle to income from personal property and rejecting entire 1894 tax). 8 Hylton, 3 U.S. (3 Dall.) at 175 (Chase, J.); id. at 183 (Iredell, J.); id. at 177 (Paterson, J.); see infra notes 75-77 and accompanying text. Given what Johnson says about wealth taxes, he must think that even a tax on real estate is no longer subject to apportionment.

Journal of Legal Education, 2016

This is an essay on grammar and writing, with extended consideration of the value of Strunk & Whi... more This is an essay on grammar and writing, with extended consideration of the value of Strunk & White as a guide. Although the essay defends Strunk & White against several of that volume’s strongest critics, it also illustrates that even the best writers — and E. B. White was terrific, as was Antonin Scalia — sometimes make mistakes. (At great, perhaps excessive, length, the essay dissects a problematic passage in White’s “Death of a Pig.”) We should learn from those mistakes, not accept them as inevitable.