Maine Law Review: Volume 52, No. 1 (2000)

Contents & Article Abstracts


Potential Penalties and Ethical Problems in Filing an Amended Return: The Case of the Repentant Sports/Entertainment Figure's Legal Expenses Deduction
John R. Dorocak

John R. Dorocak, former tax attorney and current professor of accounting at California State University, considers whether a taxpayer must file an amended return for the deduction of legal expenses incurred while defending a criminal prosecution for murder or a civil wrongful death suit. Throughout his article, the Author discusses this topic in the context of the O.J. Simpson criminal prosecution and civil suit. First, he addresses the obligation of a taxpayer and practitioner to file an amended return. Specifically, Professor Dorocak sets forth the ethical obligations of the practitioner regarding an amended return and the potential penalties imposed upon taxpayers for not filing an amended return. Next, the effect of disclosure of the potentially questionable deduction on the original return, and the likelihood of audit are discussed. The Author ultimately concludes that there may be a reasonable basis to support the taxpayer deducting these legal expenses and, if the taxpayer penalty provisions are met, the taxpayer is under no legal obligation to file an amended return.

Evaluating the Reliability of Nonscientific Expert Testimony: A Partial Answer to the Questions Left Unresolved by Kumho Tire Co. v. Carmichael
Edward J. Imwinkelried

In this Article, Edward J. Imwinkelried, professor of law at UC-Davis and former chair of the Evidence Section of the American Association of Law Schools, provides guidance to trial courts attempting to determine the admissibility of nonscientific expert testimony by applying the Supreme Court's recent decision in Kumho Tire. The Author begins by succinctly analyzing the Supreme Court's decision in Kumho Tire. While initially praising the Court for not establishing rigid requirements for the admission of nonscientific expert testimony, Professor Imwinkelried ultimately criticizes the Court for failing to provide trial courts with sufficient guidance. The Author goes on to identify two specific factors that trial judges may find useful. First, Professor Imwinkelried suggests that trial judges consider empirical studies establishing the expert's ability to render the relevant decision more reliably than lay triers of fact. Second, the Author suggests that trial judges consider evidence demonstrating that groups, other than the proponents of the discipline, generally rely on the theory or technique. These factors, concludes Professor Imwinkelried, will both advance the judicial inquiry into reliability and be supported by evidence submissible to the jury.

Maine's Overburdened Law Court: Has the Time Come for a Maine Appeals Court?
Peter L. Murray

Peter L. Murray, noted Maine legal scholar and Harvard professor, writes about the state of the Maine Supreme Judicial Court. After discussing the current case overload and the rising number of appeals, he notes the alternatives to maintaining an overworked appellate court. He suggests we learn from the mistakes and successes of other overburdened state court systems. Murray concludes that the creation of a Maine Appeals Court, an intermediate appellate court, is the most effective way of alleviating the overwhelming and ever-increasing demands on Maine's highest state court.

Regulating the NCAA: Making the Calls under the Sherman Antitrust Act and Title IX
Stephanie M. Greene

In her article, Greene discusses how courts have struggled with applying the laws of the business world as well as civil rights laws to the organization. She focusses on how the decisions of NCAA v. Smith, 119 S. Ct. 924 (1999), and Law v. NCAA, 134 F.3d 1010 (10th Cir. 1998), have illustrated the boundaries of NCAA rule making within the constraints of the Sherman Act. Greene also discusses the Supreme Court's Title IX analysis in Smith, and the unclear precedent on which the decision rests. Finally, she develops theories for holding the NCAA accountable under federal antidiscrimination laws. Greene argues that the NCAA has tremendous power in determining which student-athletes qualify to participate in intercollegiate athletics and to enjoy the benefits of such participation, but argues that this power should not be so great that student-athletes cannot seek the protection of federal regulation when discrimination is an issue. Greene concludes that NCAA shoulder federal regulations willingly, no matter how burdensome they may appear.

Exercising the Right to Public Accommodations: The Debate over Single-Sex Health Clubs
Miriam A. Cherry

This article explores the tension between First Amendment freedom of association and federal and state public accommodations laws. The doctrine of freedom of association allows private clubs to base membership on characteristics such as race, sex, and religion. The federal public accommodations law, which prohibits discrimination "of the goods, services, facilities, privileges, advantages and accommodations of any place of public accommodation…without discrimination or segregation on the ground of race, color, religion, or national origin," does not list "sex" as an impermissible basis for exclusion. Cherry argues that a public accommodations regime barring single-sex health clubs is the best solution to the problem of sexual harassment in coed clubs. Cherry concludes that Congress should amend the federal public accommodations law to prevent sex discrimination and sexual harassment in public accommodations.

Case Note
Mullin v. Raytheon Co.: The Threatened Vitality of Disparate Impact Under the ADEA
Miles F. Archer
Maine's Sex Offender Registration and Notification Act: Wise or Wicked?
James A. Billings
When You Should Have Known: Rethinking Constructive Knowledge in Tort Liability for Sexual Transmission of HIV
John A. Turcotte

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