The article first sketches some potential problems with the reflexive assumption that LegalZoom and its fellow travelers are engaged in the unauthorized practice of law. Even assuming that the practice of preparing routine legal documents for consumers runs afoul of many unauthorized practice statutes, however, there remains an open question of whether these statutes may themselves interfere with First Amendment guarantees. In particular, to the extent that these statutes broadly sweep vast amounts of law-related speech within their scope, they may infringe on free speech rights. The article sets forth some of the possible First Amendment arguments available to document preparers, without extensive elaboration, to call attention to the possibility that they may be raised in defense to an unauthorized practice prosecution. It concludes with a caution about aggressive pursuit of these online document preparers without careful consideration of the possible risks involved. A successful First Amendment challenge to an unauthorized practice statute could have repercussions far beyond the world of LegalZoom.

The institutional limitations of international law—including both custom and treaties—have always been most clear during periods of major crisis. International law is not an illusion, but it is a primitive system with definite limits on its effectiveness. As a result, while international law by itself cannot solve the world’s problem, international law is an essential element of any solution. What is necessary to make international law more effective is a fully developed institutional framework, particularly for any serious or enduring crisis, although that framework might not come into being until after the crisis emerges. To get beyond the limitations of current international law, states must combine the sophisticated insights of international lawyers with the practical structures of political actors through institutions for managing or resolving conflicts before they escalates to injurious levels.

Based upon the author’s perception as a senior IRS official, this article is intended to be a comprehensive discussion of three topics. First, it will summarize the author’s perception of what led the IRS to require the filing of Schedule UTP. Second, it will discuss the key concepts, including why certain provisions were adopted (e.g., the much misunderstood “expect to litigate” provision). And finally, there will be a discussion of the major issues, including in some cases the author’s views on such issues.

The article is written for several audiences, including: (i) corporate tax professionals who already have a working knowledge of Schedule UTP and should be most interested in the discussion of major issues and possibly the theory behind the “expect to litigate” provision; (ii) students and academics who should be interested in the entire article; and finally (iii) government officials who should be interested in techniques corporations may use to avoid disclosure, the definition of “reserve”, whether Schedule M-3 should be modified, and several other sections.

The current definition of tax reserve is circular and it is not clear whether it includes certain scenarios (e.g., deferred tax reserves). The application of the transition rule is of significant importance to corporations that incurred NOL carryforwards during the recession from 2007 to 2009 and expect to utilize those carryforwards in 2010 and later years. The author addresses these two issues in depth and offers various alternative approaches.

Beyond registering that the body of work on law and language that proceeds from the premise that language is but a medium of transmission for the substance of law has been left methodologically behind by contemporary law and language scholarship, this much might also be said: This survey of the state of contemporary humanistic Law and Language scholarship suggests four main conclusions.

The first is that much of value in this body of work involves applying linguistic humanities and/or critical linguistic human sciences methodology to the work of legal institutions, discourses, and texts, and could equally be replicated in "and language" interdisciplinary work in other professions, practices of subject formation, disciplines.

Next, some of it - and the scholarship of Peter Goodrich stands out in particular here - is about the unique or distinctive relationships between law and language. That said, this chapter’s third conclusion about law and language scholarship and the praxes that might be informed by it is that much is yet to be done in the subdiscipline of scholarship concerning itself with the unique or distinctive insights that might emerge from interdisciplinary inquiries into “law” grounded in the work of influential theorists of language and discourse. A cursory sampling of such scholars working in the post- and neostructuralist language studies traditions might range from Derrida and Foucault and Irigaray to Halliday, Kress, and Threadgold to Badiou and Lacan and Kristeva. There are likewise possibilities for interdisciplinary work in law and language that might be potentiated by the development of Peircean semiotics and the linguistic philosophy of Searle and, to a lesser extent, Austin.

This in turn suggests survey’s fourth conclusion: That to the extent that there is an aspect of law and language scholarship that is presently significantly underdeveloped, it is the interrelationships among theories of language, of subject formation, and of law. Lines of inquiry exploring this question might be generated by work drawing on sources that include Husserl's phenomenological theorization of meaning and language and its account of the communicating subject, and Bourdieu’s work on both discourse and subject formation.

The balance of this chapter is divided into six main sections that in turn map distinctive subtypes of Law and Language scholarship: "Humanism and its Supplements;" "InstrumentalPhenomenal;" "PhilosophyTheory;" "Pedagogy and Subject Formation;" "Practice;" and "Culture." I have endeavored to select both representative and significant scholars to exemplify general arguments, with inevitable omissions.

The symposium concludes with a response by Rabinow and his colleagues in the Human Practices Thrust of SynBERC, Gaymon Bennett and Anthony Stavrianakis, to the contributors to the Symposium, in particular to Mullender's application of their method to analyze British negligence law and to the critiques offered by Caudill and by Edmond and Mercer. That response also offers "at least in part, . . . an updating, a report, a reformulation" on/of the opening essay and on their collaboration in SynBERC. And thus it laments "the steadfast lack of a broad curiosity on the part of the engineers, molecular biologists, chemists (and their students)," and concludes "that in important yet ultimately constructive ways, the results of our first set of experiments in Human Practices at SynBERC have proven to be unsuccessful," but not, when subjected to critical reflection, which reveals that "indifference on the part of our hoped-for collaborators was a key to understanding the persistent difficulties and blockages we encountered," to be a failure.

In many of these countries, the something more turned out to be the environment. Communism had a dismal record on the environment. By 1989, sulfurous skies were killing people across the Soviet bloc. Immediately after the end of the Soviet Union, the Russian Federation classified one-sixth of its territory as uninhabitable because of pollution—yet the inhabitants had nowhere to go. Rivers were poisoned beyond anything found in western countries. The Aral Sea, in Central Asia, had become the prime example of “ecocide.” Communism performed so conspicuously poorly regarding the environment for six reasons. First, Marxism carried forward the western tradition of treating nature solely as providing resources for human consumption, particularly as expressed in the “labor theory of value.” A second feature of Marxism reinforced the effect of the labor theory of value—its denial of individual responsibility—leading to reckless disregard of environmental consequences. Thirdly, the socialist goal of “transforming the world” led easily to “gigantomania”—a desire for the largest and most grandiose technological feats. Gigantomania is also found in western countries, but structural features of Communism prevented effective counter-pressure that, at least sometimes, stopped some of the most substantial excesses in the west. This introduces a fourth factor—structural features rooted in Marxist ideology and the conspiratorial nature of Communism’s rise to power—that are perhaps the most important. The “dictatorship of the proletariat” brooked no countervailing power centers. The Communist obsession with secrecy often kept problems hidden from both the public and the central authorities until catastrophe made the problem obvious to all. Fifth, the determination to keep environmental problems secret was reinforced by the belief that such problems could not arise under Communism, which, after all, represented the most progressive ordering of society and the economy; to admit to environmental failings was to admit that Communism had failed in at least one important respect. Finally, there was the importance of “fulfilling the plan.” Success and promotion for officials—and all major economic decisions were made by officials—came only from fulfilling the plan, which generally was measured solely through quantitative achievements, resulting in pervasive poor quality production. New construction is what the plan called for, not maintenance, while cost, in any rational sense, simply was not a factor.

Communism itself may have looked like an old building in 1986, but it also looked like a sturdily built building that would stand a long time. With the environment in such a problematic state, and structural and ideological problems precluding effective responses within a Communist system, it would have been remarkable if environmental problems did not play a major role in bringing down the system. In fact, a major environmental disaster, Chernobyl, occurred on such a scale and in such a place that it could not be hidden and precipitated a crippling crisis in the USSR itself when it became clear that the government could not cope. The crisis discredited the government and emboldened its critics so much that it could not survive. The structure of dissent in the Soviet bloc, such as it was, further ensured that environmental concerns would be central to the rhetoric, if not perhaps the real reasons, for the toppling of the Communist governments. Moderately large “green” movements with a modest degree of independence had been tolerated as a sort of window dressing for the official power structure. These groups, rather than the “forums” created to monitor compliance with the Helsinki Accords or to agitate for democracy or human rights, formed the organizational core for the toppling of most of the Communist governments. The toppling of some governments after an environmental crisis in turn weakened neighboring Communist governments, again often with environmental groups leading the way. Yet the role of the environment (and more pointedly, of environmentalism) in bringing Communism to an end in Europe has largely escaped notice. This paper presents the evidence for just such a central role for environmental concerns in the end of Communism.

Today, some scholars try to solve the Blanshard problem by changing the topic. “Liberal Catholicism,” they intimate, is not the problem posed by the unmodified Catholicism Blanshard targeted more than half a century ago. If, however, we refuse to change the topic (on the ground that the Catholic religion has not changed in any relevant sense), the problem is of broader scope, as Pope John Paul II wrote in 1991: all those who are “convinced that they know the truth and firmly adhere to it are considered unreliable from a democratic point of view.” Perhaps Blanshard was right to the extent he worried that Catholics have principled reservations about the scope of democratic legitimacy and the sweep of democratic authority. It is widely and justly celebrated that the Second Vatican Council (1962-65) declared the natural human right to liberty of conscience. What the same Council said about the liberty of the Church, the libertas ecclesiae, however, is little noticed, but of at least as much practical significance as what it declared about human conscience. Also little noticed, and also significant, is that the same Council said nothing directly about democracy.

In light of these and other facts, this paper argues that faithful Catholics are indeed unreliable from a democratic point of view in the respect that they, in and through their Church, insist that the (democratic) socio-political order must be conformed to higher law and true human rights (through means that are both prudent and otherwise in conformity with valid positive law). Faithful Catholics deny the ultimacy or sufficiency of democracy and what it happens to deliver.

This paper was originally delivered as the Yves R. Simon Lecture at the University of Chicago.