April 2014 Philippine Supreme Court Decisions on Tax Law | LEXOTERICA: A PHILIPPINE BLAWG

See - April 2014 Philippine Supreme Court Decisions on Tax Law | LEXOTERICA: A PHILIPPINE BLAWG





"x x x.

National Internal Revenue Code; income tax; creditable withholding tax; refund; requisites. There are three essential conditions for the grant of a claim for refund of creditable withholding income tax, to wit: (1) the claim is filed with the Commissioner of Internal Revenue within the two-year period from the date of payment of the tax; (2) it is shown on the return of the recipient that the income payment received was declared as part of the gross income; and (3) the fact of withholding is established by a copy of a statement duly issued by the payor to the payee showing the amount paid and the amount of the tax withheld therefrom. Commissioner of Internal Revenue v. Team (Philippines) Operations Corporation (formerly Mirant Phils., Operation Corporation), G.R. No. 179260, April 2, 2014.

National Internal Revenue Code; income tax; tax credit or refund; corporations; irrevocability rule. In case the corporation is entitled to a tax credit or refund of the excess estimated quarterly income taxes paid, the excess amount shown on its final adjustment return may be carried over and credited against the estimated quarterly income tax liabilities for the taxable quarters of the succeeding taxable years. Once the option to carry-over and apply the excess quarterly income tax against income tax due for the taxable quarters of the succeeding taxable years has been made, such option shall be considered irrevocable for that taxable period and no application for cash refund or issuance of a tax credit certificate shall be allowed therefor. Commissioner of Internal Revenue v. Team (Philippines) Operations Corporation (formerly Mirant Phils., Operation Corporation), G.R. No. 179260, April 2, 2014.

Court of Tax Appeals; findings and conclusions of the CTA are accorded highest respect. The findings and conclusions of the Court of Tax Appeals (CTA) are accorded the highest respect and will not be lightly set aside. The CTA, by the very nature of its functions, is dedicated exclusively to the resolution of tax problems and has accordingly developed an expertise on the subject unless there has been an abusive or improvident exercise of authority. Consequently, its conclusions will not be overturned unless there has been an abuse or improvident exercise of authority. Its findings can only be disturbed on appeal if they are not supported by substantial evidence or there is a showing of gross error or abuse on the part of the Tax Court. In the absence of any clear and convincing proof to the contrary, the Court must presume that the CTA rendered a decision which is valid in every respect. Commissioner of Internal Revenue v. Team (Philippines) Operations Corporation (formerly Mirant Phils., Operation Corporation), G.R. No. 179260, April 2, 2014.

x x x."

March 2014 Philippine Supreme Court Decisions on Tax Law | LEXOTERICA: A PHILIPPINE BLAWG

See - March 2014 Philippine Supreme Court Decisions on Tax Law | LEXOTERICA: A PHILIPPINE BLAWG





"x x x.

National Internal Revenue Code; value-added tax; zero-rated or effectively zero-rated sales; unutilized input value-added tax; claims for tax credit or refund; period to file appeal with the Court of Tax Appeals. Section 112 (D) of the National Internal Revenue Code provides the Commissioner of Internal Revenue a 120-day period from submission of complete documents in support of the administrative claim within which to act on claims for refund/applications for issuance of the tax credit certificate. Upon denial of the claim or application, or upon expiration of the 120-day period, the taxpayer only has 30 days within which to appeal said adverse decision or unacted claim before the CTA, otherwise, said judicial claim shall be considered as filed out of time. Commissioner of Internal Revenue v. Silicon Philippines, Inc. (formerly Intel Philippines Manufacturing, Inc.), G.R. No. 169778, March 12, 2014.

National Internal Revenue Code; value-added tax; unutilized input VAT; claims for tax credit or refund; prescriptive periods.  (1) An administrative claim must be filed with the Commissioner of Internal Revenue (CIR) within two years after the close of the taxable quarter when the zero-rated or effectively zero-rated sales were made. (2) The  CIR  has  120  days  from  the  date  of  submission  of complete documents in support of the administrative claim within which to decide whether to grant a refund or issue a tax credit certificate.  The 120-day period may extend beyond the two-year period from the filing of the administrative claim if the claim is filed in the later part of the two-year period.  If the 120-day period expires without any decision from the CIR, then the administrative claim may be considered to be denied by inaction. (3) A judicial claim must be filed with the Court of Tax Appeals (CTA) within 30 days from the receipt of the CIR’s decision denying the administrative claim or from the expiration of the 120-day period without any action from the CIR. (4) All taxpayers can rely on Bureau of Internal Revenue Ruling No. DA-489-03 from the time of its issuance on December 10, 2003 up to its reversal by the Court in theAichi case on October 6, 2010, as an exception to the mandatory and jurisdictional 120+30 day periods. Commissioner of Internal Revenue v. Silicon Philippines, Inc. (formerly Intel Philippines Manufacturing, Inc.), G.R. No. 169778, March 12, 2014.

National Internal Revenue Code; value-added tax; Section 4.108-1 of Revenue Regulations No. 7-95; significance  of imprinting the word “zero-rated” for zero-rated sales covered by its receipts or invoices. The absence or non-printing of the word “zero-rated” in the claimant’s invoices is fatal to its claim for the refund and/or tax credit representing its unutilized input value-added tax (VAT) attributable to its zero-rated sales. The  appearance  of  the  word  “zero-rated”  on  the  face  of invoices  covering  zero-rated  sales  prevents  buyers  from  falsely claiming input VAT from their purchases when no VAT was actually paid. Further, the printing of the word “zero-rated” on the invoice helps segregate sales that are subject to 12% VAT from those sales that are zero-rated. Commissioner of Internal Revenue v. Silicon Philippines, Inc. (formerly Intel Philippines Manufacturing, Inc.), G.R. No. 169778, March 12, 2014.

National Internal Revenue Code; value-added tax; imprinting “BIR Authority to Print” in invoices; no law or Bureau of Internal Revenue rule or regulation requiring the taxpayer-claimant’s authority from the BIR to print its sales invoices (BIR authority to print) to be reflected or indicated therein. While the Court considers the importance of imprinting the word “zero-rated” in said invoices, the same does not apply to the phrase “BIR authority to print.” There is no law or Bureau of Internal Revenue (BIR) rule or regulation requiring the taxpayer-claimant’s authority from the BIR to print its sales invoices (BIR authority to print) to be reflected or indicated therein. While entities engaged in business are required to secure from the BIR an authority to print receipts or invoices and to issue duly registered receipts or invoices, it is not required that the BIR authority to print be reflected or indicated therein. Commissioner of Internal Revenue v. Silicon Philippines, Inc. (formerly Intel Philippines Manufacturing, Inc.), G.R. No. 169778, March 12, 2014.

x x x."

A look at cases before the Supreme Court - Yahoo News Philippines

See - A look at cases before the Supreme Court - Yahoo News Philippines





"x x x.

A look at some of the noteworthy cases the Supreme Court will hear this term, which begins Monday:

—Mistaken traffic stop: A broken brake light led a North Carolina police officer to pull over a car in which cocaine was later found. Turns out, the state requires only one functioning brake light. The court is weighing a case about whether a defendant's constitutional protection against unreasonable searches was violated because of the officer's mistaken understanding of the law.

—Prison beards: An Arkansas inmate is challenging a prison policy that prevents him from growing a short beard in accordance with his Muslim religious beliefs. Prison officials say the policy prevents inmates from concealing contraband or quickly changing their appearance in an escape.

—Teeth whitening: The North Carolina Board of Dental Examiners is challenging a Federal Trade Commission order that said the dentist-filled board is trying to kill off competition from day spas and tanning booths that offer teeth-whitening.

—Dishonest juror: Claims that a juror's comments during trial deliberations over a South Dakota traffic accident raise questions about her impartiality and possibly could result in a new trial.

—Born in Jerusalem: The case of an American born in Jerusalem who wants his passport to list his birthplace as Israel underlies a major dispute between Congress and the president, with Middle Eastern politics as the backdrop. The United States has never recognized any nation's sovereignty over Jerusalem, believing the city's status should be resolved in peace negotiations. The administration says a 2002 law passed by Congress allowing Israel to be listed as the birthplace of Jerusalem-born Americans would in essence be seen as a U.S. endorsement of Israeli control of the city.

—Alabama redistricting: Democrats and black lawmakers contend that Republican leaders in Alabama drew a new legislative map that illegally packed black voters into too few voting districts to limit minority political power. Republicans say they complied with the law by keeping the same number of districts in which black voters could elect candidates of their choice.

— Facebook threats: A Pennsylvania man challenges his conviction for making threats on Facebook. He says his online rants about killing his estranged wife, shooting up a school and slitting an FBI agent's throat were simply rap lyrics, and that he didn't mean to threaten anyone.

— Pregnancy discrimination: A United Parcel Service employee says the company failed to accommodate her pregnancy when it refused to give her light-duty work. But UPS contends its policies are "pregnancy-neutral," allowing light-duty assignments only in cases where employees are injured on the job or have certain medical conditions.

—Housing discrimination: For the third time, the court has agreed to hear a challenge from Texas to an important tool the government is increasingly using to fight discrimination in housing. Two earlier cases settled before the justices could weigh in on the legality of determining discrimination from the results of a policy that disproportionately affects minorities, rather than by showing any intent to discriminate.

—Religious discrimination: Retailer Abercrombie and Fitch is defending its denial of a job to a woman wearing a Muslim headscarf by arguing that she did not say during her interview that she wears the hijab for religious reasons.

___

Cases the justices could decide to hear before the term ends in late June:

—Gay marriage: Both sides want the justices to settle the question of whether same-sex couples have the same right to marry as heterosexuals under the Constitution. A court ruling in favor of same-sex marriage would grant marriage rights to same-sex couples in all 50 states, up from 19 states and the District of Columbia. A decision in favor of state marriage bans would allow states to continue setting the rules on whether to allow same-sex couples to wed.

—Abortion: Several states have passed laws in recent years aimed at limiting abortion by imposing hospital admitting privilege requirements on doctors who perform abortions, forcing abortion clinic facilities to meet tougher standards and preventing doctors from prescribing pills for medical abortions later in a pregnancy and at a lower dose. The court could take one or more cases that are winding through the courts.

—Voting disputes: Identification requirements and limits on early voting are among state voting laws that could make their way to the Supreme Court this term. The court already has jumped preliminarily into a case over early voting in Ohio and seems likely to want a full-blown review. But a decision on hearing that case could come late enough in the term to push back the argument and decision to the following term that begins a year from now.

—Contraception: The next fight over the new health care law's requirement that contraception be offered to women among a range of preventive services at no extra cost concerns the responsibilities of religious not-for-profit universities, hospitals and other institutions. The Obama administration already allows those organizations to shift responsibility for coverage to their insurers, but the groups say that so-called accommodation still is a burden on their religious consciences. In June, the justices said family-owned corporations with religious objections do not have to pay for contraceptives for women covered under their health plans.

—Health care subsidies: Legal challenges to the health care law continue in several states that would drastically reduce the number of Americans eligible for subsidies to make health insurance affordable. One appeal of a court ruling denying a challenge to the subsidies already is pending at the Supreme Court, although the pace of the other cases suggests the justices are more likely to wait, if they even are willing to undertake another high-stakes fight over the health care law.

—Affirmative action: The court could get another crack at the University of Texas admissions policy that takes race into account among many factors in filling some seats in entering freshmen classes. Lower courts upheld the Texas policy following a Supreme Court decision in 2013 that ordered a new review. The case currently is being appealed to the full 5th U.S. Circuit Court of Appeals in New Orleans.

x x x."

The Best Lawyers Demonstrate the Best Ways to Attack Adverse Authority — Lawyerist

See - The Best Lawyers Demonstrate the Best Ways to Attack Adverse Authority — Lawyerist





"x x x.

What should you do when your opponent cites authority in a motion or brief that appears directly on point? Panic. After you finish panicking, you need to determine two threshold issues: whether the authority is binding or merely persuasive and whether the facts are analogous to your situation. The answers to those questions will dictate how you attack the adverse authority.

If the authority seems to be binding (but is not), then explain why the authority doesn’t bind your court. If the facts of a case are dissimilar, you could use the case affirmatively to support your argument or could demonstrate that your opponent inaccurately described the case. If the facts of a case are similar, you could attack its reasoning. But if a case is binding and has directly addressed your issue, the better approach is to distinguish it.

In this article, I explain six different methods to knock down adverse authority and illustrate them with examples from the best litigators. At least one method should apply to your opponent’s cited authority. If not, you may consider settling the claims.

x x x."

On accepting new clients

See - 5 Things Every Lawyer Should Do During Client Intake - Strategist





"x x x.

Here are five things you should be doing to ensure that you end up with conflict-free, sane, paying clients:

1. Check for Conflicts.

This is the first step in most cases: running your client's name, the adversary's name, and any related business entities through your system to see if you've ever represented anyone related to the case. If a name pops up, you'll want to do some more digging to see what the conflict is: Was this a consultation on an unrelated matter ten years ago, or is this a current client of the firm for this exact case? If any waivers for conflicts are necessary, those need to be handled before you get any confidential information.

What happens if you don't? You'll almost certainly be fired. You'll probably lose some fees. And things get really heated, you might even end up with a bar discipline case.

2. Collect Intake Paperwork.

Some of this information you'll have from the conflicts check. In fact, many people do the intake paperwork before the conflicts check, often though a website form. If you do this step first, be sure that your form doesn't allow clients to submit confidential information that could create a conflict with an existing client.

Intake forms should include basic biographical data (name, contact info, date of birth, etc.). We'd also recommend individualized questionnaires for different types of cases -- personal injury questionnaires should look very different from estate planning or divorce consultations.

Here are a couple of sample forms that might come in handy:

• Maryland State Bar LOMA Sample Form
• Georgia State Bar: Intake Forms, Checklists and Surveys

3. Ask Yourself: Is This a Good Fit?

This isn't just your chance to impress the potential client -- it's the client's chance to impress you.

You need to look for signs of problem clients, especially clients who are shopping for their third or fourth attorney. You need to consider whether you can handle the case -- is it an unfamiliar practice area or niche issue?

Also, consider having an assistant do a little Google-fu on clients before they come in, to make sure you don't have some raving loon who likes to write psychotic rants online (especially on review sites).

If you want the case, shift gears and impress the client by selling yourself as a legal professional. Don't get too excited and overpromise or otherwise blow the "sale" -- just be yourself, and impress the client with your legal acumen and desire to help them with their problem.

4. Draft a Retainer Agreement or Non-Engagement Letter.

If you and the client decide to move forward, this is the part where you'll draft the retainer agreement and talk about payment options. For most clients, having them put down a retainer or pay a deposit in advance is a good idea -- folks with legal problems tend to deprioritize paying their lawyer once the case is closed.

If you do not take the case, consider whether you need give him or her a non-engagement letter. These letters warn non-clients of possible time limits on their claims and explain, in writing, that you are not representing them. As we said before, "When in doubt, write it out."

5. Check Deadlines and Plan Ahead.

If you do take the case, don't just put the file in a drawer and the check in the bank. You should immediately put your client's information into your practice management system (assuming you have one, and you really should, preferably a cloud-based system).

Basically, this is where you create the case plan. For familiar case types and practice areas, you probably know what paperwork will be required and when, but consider having checklists for each type of case to make sure you don't skip steps. You also need to check for filing deadlines and statutes of limitations and put those in the calendar, with reminders set for a least a week beforehand.

Did we miss anything crucial steps in the client intake process? Tweet us with your tips @FindLawLP.

Related Resources:

• Should You Charge for Consultations? (FindLaw's Strategist)
• Does Your Firm Need a Marketing Manager? (FindLaw's Strategist)
• Survey: Half of All Lawyers Want Us to Dress More Formally (FindLaw's Strategist) x  x x."

Why bar exams ruin legal education | Inquirer Opinion

See - Why bar exams ruin legal education | Inquirer Opinion







"x x x.

This week, another batch of law students will have wasted an extra year of their lives to study for the month-long bar exam. This is in addition to four years of law school where every moment was defined by the bar. It is high time the Philippines got rid of its unique obsession with what was supposed to be a simple licensure exam that mutated into a rite of passage and national spectacle.

We Filipinos do not realize that we are the only society that banners bar topnotchers on the front pages of newspapers. My American classmates in Harvard Law School openly said that every point they scored above passing in the New York bar represented eight wasted hours of their lives. Our bar reviewer stressed that the exam demands a lower level of intelligence.

I saw confused looks on my classmates’ faces in reaction to a Filipino citing “bar topnotcher” as a credential. Later, I would see the same confused look on an international law firm partner’s face, seconds before throwing away a Filipino resumé. Note that Barack Obama is cited as the first African-American president of the Harvard Law Review—the United States’ single most prestigious legal credential—not as a bar topnotcher and not even as a Harvard Law magna cum laude graduate.

I can attest that the Philippine bar exam is the most difficult in the world—for all the wrong reasons. The New York exam has a well-defined scope and structured questions. When I took the Philippine exam, I was asked a question on which I wrote a thesis of over 100 pages.

The long list of required Philippine bar subjects has not changed in decades. The exam demands basic knowledge of intercountry adoption, war crimes, value-added taxation, and liability in car accidents, a demand that would never arise in actual practice.

Our law school curricula naturally follow the too-long list of prescribed bar subjects. This has destroyed legal education because there is simply no room for anything else, especially with the entire fourth year of law school intended for bar review subjects that are a compressed repeat of the first three. In contrast, law is a three-year program in the United States where one takes the most basic subjects in freshman year. The succeeding years are purely for electives—they presume one does not need exposure to every single field—and some have proposed two-year programs given this.

Philippine law schools must devote three units to the Negotiable Instruments Law. This is a cruel joke because the law was intended for a time when commercial papers were delivered by galleon or stagecoach and that class typically ends with a summary of the brief rules for bank checks, the instrument we far more commonly use today. In contrast to this monumental waste of time, modern, complex laws such as the Intellectual Property and the Securities Regulation Codes are not required reading.

The line of University of the Philippines professors once was that students were there to study law in the grand manner, not review for the bar. Even UP bowed to pressure from alumni fixated on the bar. Equally fixated college seniors were attracted to schools with higher bar passing rates and topnotcher counts. UP did well in both in recent years, but at the staggering cost of eliminating nearly all electives in favor of mandatory bar review classes and stricter grade requirements to remove perceived weaker students before they could affect the all-important bar statistics.

All this has reduced law school to soulless memory games. Our unconscious image of the abogado de campanilla is still an idiot savant who can recite pages of rules verbatim, down to the commas. I remember a progressive Dean Raul Pangalangan holding up a CD of compiled court decisions, then worth about P30,000, to freshmen and reiterating the trivial market value of the memory games.

The obsession with memorization cripples education. Teaching constitutional law, the most philosophical of all law subjects, it is frustrating to see students simply skip to the bottom of decisions to see who won, then memorize a summary of the resulting doctrine, missing the essence of the very human conflicts involved.

I spent years flying around as a New York securities lawyer and lesson No. 1 was that securities law is fundamentally different from other fields because it involves public markets; thus, you cannot just copy financial contracts from other fields. Given our rote education, Filipino lawyers tend to approach it as a list of registration procedures and exemptions from registration, with less emphasis in contracts on the central point that you can be jailed for allegedly offering securities to retirees with misleading marketing material.

At my Harvard graduation, Dean Elena Kagan (later solicitor general and now justice of the US Supreme Court) did not exhort a 100-percent passing rate, pick a “bar bet,” or even read out academic honors. Instead, she read out the number of hours my American classmates spent offering free legal aid and recognized the student who organized all the gatherings and served as the glue that kept the large class together. If this is good enough for Harvard Law School and one of the most highly regarded American educators and jurists, it should be good enough for a Philippine law school. Frustrated young professors eagerly await the day when we do not need a straitjacket of a standardized exam to double-check our students’ quality, and law can be taught in its full intellectual beauty and modernity.

Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) cochairs the Philippine Bar Association Committee on Constitutional Law and teaches at the University of the East.

x x x."

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PNP chief violated 4 laws on accepting gifts

See - PNP chief violated 4 laws on accepting gifts





"x x x.

These laws, which regulate the act or practice of gift-giving to public officials, are:

1. Articles 210-212 of the Revised Penal Code
2. Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act)
3. Republic Act No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees)
4. Presidential Decree 46 (Making it Punishable for Public Officials and Employees to Receive, and for Private Persons to Give, Gifts on Any Occasion, including Christmas)."

CA probes 4 judges linked to ‘Arlene’ | Headlines, News, The Philippine Star | philstar.com

See - CA probes 4 judges linked to ‘Arlene’ | Headlines, News, The Philippine Star | philstar.com





"x x x.

MANILA, Philippines - Four regional trial court (RTC) judges are facing investigation before the Court of Appeals (CA) after they were implicated in alleged fixing of cases and influence peddling by a certain “Ma’am Arlene”  in the judiciary.

The cases were assigned to Associate Justices Ramon Garcia, Romeo Barza and Celia Librea-Leagogo.

The STAR learned yesterday that the four judges are Rommel Baybay of Makati RTC Branch 132, Ralph Lee of Quezon City RTC Branch 83; Marino Rubia of Biñan, Laguna RTC Branch 24, and Lyliha Aquino of Manila RTC Branch 24.

They have been summoned and asked to explain their links with Ma’am Arlene.

An insider said the investigation aims to determine if the judges committed violations of the New Code of Judicial Conduct.

“The respondents were ordered to appear before the investigating justices or submit judicial affidavits. Several witnesses were also summoned,” the insider said.

Headlines ( Article MRec ), pagematch: 1, sectionmatch: 1

Last July, the Supreme Court (SC) ordered the investigation after an ad hoc committee chaired by Associate Justice Marvic Leonen found that the four judges violated laws and rules in the conduct of elections of officers of the Philippine Judges Association (PJA).

The CA was given 90 days from raffle to conclude the investigation and submit reports to the SC.

“Upon raffle, the Clerk of Court of the Supreme Court is ordered to furnish the investigating judges confidential copies of the attached summary of preliminary findings of the investigating committee pertaining to the judges,” the SC said.

“The investigation shall be conducted with utmost confidentiality and the report and recommendation shall be directly submitted to the Clerk of Court of the Supreme Court in a sealed envelope.”

The SC issued the order based on the recommendations of the Leonen-led panel last May.

Ma’am Arlene was identified as Arlene Lerma, a former employee of Manila City Hall.

The SC had initially traced the source of the reports to a supposed “smear campaign” in the electoral contest in the PJA.

It ordered the suspension of the recognition of Lee and Aquino as PJA elected officers “until such time that this Court will issue a resolution revoking the suspension.”

Changes in the PJA leadership were withheld pending dialogue among its remaining officers and the SC through Leonen.

The SC also ordered Aquino to return to her previous station as judge of Tuguegarao, Cagayan RTC Branch 4.

 It has already ordered the dismissal from judicial service of Rubia in connection with another administrative case.

x x x."

Supreme Court stops sale of Ayala TechnoHub land | Inquirer News

See - Supreme Court stops sale of Ayala TechnoHub land | Inquirer News





"x x x .

MANILA, Philippines—The Supreme Court on Wednesday stopped the Quezon City government from auctioning off the prime property now hosting the Ayala TechnoHub due to the supposed failure of its lessor, the University of the Philippines, to pay real estate taxes amounting to P117 million.

The high court’s Second Division granted UP’s petition for a temporary restraining order (TRO) against the auction scheduled on Nov. 20.

The UP administration, in a petition filed last week through the Office of the Solicitor General, maintained that it is exempt from paying such taxes to the local government under the university’s charter and the Local Government Code.

The state university is asking the court to nullify the statement of delinquency and the final notice of delinquency issued by the city government in May and July, respectively, in an effort to collect P117,182,700 in tax liabilities from 2009 to the first three quarters of 2014.

UP leased the property to Ayala Land Inc. in October 2006. Located along Commonwealth Avenue, the 380,630-square meter property has since been developed into an info-tech and research hub, with sections allotted for commercial establishments.

The court’s Second Division chaired by Justice Antonio Carpio ordered the respondent, the City Treasurer of Quezon City, to file its comment on the UP petition within 10 days.

In an earlier interview, Quezon City Treasurer Edgar Villanueva said the UP property became taxable when it started to be used in a proprietary function and not for educational purposes.

“We’re charging UP because our office thinks that they’re taxable, because the property is now being utilized by a private entity which is also taxable,” Villanueva said. “According to the Constitution, educational institutions are exempt from payment of real property tax if (the land) is being used directly and specifically for educational purposes. We recognize that. But when UP utilized the property in a proprietary function, they stepped into the (category) of an ordinary taxable entity.”

He said the Bureau of Local Government Finance, an agency under the Department of Finance, had concurred with this position.

But in its petition, UP insisted that the tax exemption applies to its properties “whether used for educational purposes or in support thereof,” and that the city government’s plan to take over and sell the land would cause irreparable damage to UP and deprive it of a major opportunity “to raise much-needed revenues in support of its mandate.”

x x x."

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Law School Exam Tips: 5 Ways to Perform Well on Law School Exams

See - Law School Exam Tips: 5 Ways to Perform Well on Law School Exams





"x x x.

Plan your response
It’s hard to not get caught up in the “hurry up and start” pressure. Before starting immediately, plan an outlined response, which will help organize your thoughts and allow you to address the question clearly.

Craft a well-organized essay
Clear and concise writing will gain you points even if you fail to spot all of the issues. By crafting a well-organized essay, you will make the professor’s job easier. With this being said, be sure to include an introduction stating the rule of law, supporting paragraphs that apply the rule and mention any counter-arguments. 

Remember “IRAC”“Issue. Rule. Analysis. Conclusion.” This is the formula for law school writing exams which has been the most successful approach. Even if there is no clear answer, be sure to list several alternative conclusions and explain why each is logical. 

Review past examsMany professors maintain a file of exams they have given in past years. While past exams don’t include the answers, they will give you an idea of the style and format of the professor’s exams. You can then brainstorm responses to the questions with other students. Some professors may even be willing to critique your answer or give advice on how to best answer the question.

Budget your time Oftentimes, professors may plant a difficult question in an exam to test the student’s ability to manage his or her time. There will be some questions on the exams will be harder to answer than others. Skip harder questions to spend time on the other questions.

x x x."

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Social Media and Spoliation – Can A Client Delete Her Facebook Posts? | The National Law Review

See - Social Media and Spoliation – Can A Client Delete Her Facebook Posts? | The National Law Review


"x x x. 

As an attorney, what can and 
what should you do about your client’s 
social media activity?  

Can you advise your client to remove 
content, or change privacy settings 
so opposing counsel 
and others cannot snoop?  

But what about existing social media?  
Can it be made private?  
Can it be purged?  

The answer to the last question is 
an emphatic “no.”  Rule 3.4 of the 
Massachusetts Rules of Professional 
Conduct provides, in relevant part, 
that “[a] lawyer shall not: 
(a) unlawfully obstruct another 
party’s access to evidence or 
unlawfully alter, destroy, or 
conceal a document or other 
material having potential evidentiary 
value.  A lawyer shall not counsel 
or assist another person to 
do any such act; ….” M.R.C.P. 3.4. 
To purge damaging information on 
social media would, if relevant, 
likely constitute spoliation.  
See Scott v. Garfield, 454 Mass. 790, 
798 (2009) (“The doctrine of 
spoliation permits the imposition 
of sanctions and remedies where a 
litigant or its expert negligently or 
intentionally loses or destroys evidence 
that the litigant (or expert) knows or 
reasonably should know might be 
relevant to a possible action, 
even when the spoliation occurs before 
an action has been commenced.”). 

x x x."

The Fifth Amendment’s Grand Jury: A Proud & Lost Protection of Liberty | David J. Shestokas

See - The Fifth Amendment’s Grand Jury: A Proud & Lost Protection of Liberty | David J. Shestokas





"x x x.

The Grand Jury Clause of the Fifth Amendment

 The Grand Jury Clause of the Fifth Amendment reads:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger;

The History of Grand Juries

 The roots of the Grand Jury[1] are in the Magna Carta.  King John’s agreement with the Barons in 1215 placed a group of Barons between the King and legal actions including criminal prosecutions.  This procedure was to protect liberties from unfettered interference by the crown.  What was to become the modern Grand Jury began in 1368 when King Edward III appointed 24 men in each county to investigate and lodge accusations of crime.  However, 300 years[2] would pass before grand juries would become the citizen’s protection written into the Constitution from malicious, political or unwarranted prosecutions.

American colonists inherited grand juries from English law and as tensions grew between the colonies and England colonial grand juries regularly refused to approve the king’s prosecutions.  In the colonies grand juries were in the forefront of the revolution by resisting the crown and exercising the rights of self-government.  In 1735 a colonial grand jury refused to issue an indictment[3] for seditious libel and set the stage for the case of John Peter Zenger, which ultimately freed the press in America.

The Fifth Amendment Grand Jury Protection Mirrors Colonial Experience

The Founding generation came to cherish the value of placing citizens between government prosecution and the accused.  All men have a natural right to liberty and government interference with that right should not be entered upon either lightly or easily.  The Fifth Amendment institutionalized the colonial experience of resisting the government through the grand jury and was recognized by the Supreme Court:

“Historically, this body has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.”  Wood v. Georgia (1962)

The Grand Jury in Modern Times

From ratification of the Bill of Rights 1791 until the 1946 adoption of the Federal Rules of Criminal Procedure (FRCP), specifically Rule 6[4] grand juries were not governed by statute.  The Grand Jury was an institution that existed before the Constitution and recognized by the Fifth Amendment and not considered a part of any branch of government, but rather a panel of citizens.

While grand juries started as investigative and accusatory bodies with great independent authority, that authority has been diminished both in practice and by statute.  Federal[5] grand juries are typically composed of 23 citizens and convene for periods from one month to a year.  Legally as a pre-constitutional institution recognized by the Constitution, grand juries retain the independent authority that they had at common law.[6]  In practice, they have become a prosecutor’s panel dependent upon the prosecutor for their agenda, though technically they are not part of the executive branch.

How a Grand Jury Works

Grand jury proceedings are secret. The prosecutor presents evidence to the panel and no judge is present. The targets of grand jury investigations have no rights to be present or informed about the proceedings. A vote of twelve grand jurors is required to return an indictment.

Since the grand jury is an investigative body and not a court, many court rules do not apply. Jurors may consider evidence that cannot be used in court such as hearsay or evidence that may have been gathered in violation of the Fourth, Fifth or Sixth amendments. There is no right for a witness to have an attorney present.[7]  They have the power to issue subpoenas for both physical evidence and testimony.

Given the evolution over the years, grand juries, whose members once proudly stood up to the King of England, rather than maintaining a buffer between the government and the people, have become an extension of the prosecution.  The change in the nature of grand juries was best expressed by the now famous observation of former Judge Sol Wachter who observed that prosecutors now exercise so much control that a grand jury could be persuaded to “indict a ham sandwich”.

The Demise of a Procedural Protection for Life and Liberty

What once stood as a bulwark for freedom and was constitutionalized to be so is now best described:

“Thus, while the grand jury still exists as an institution — in a sterile, watered-down, and impotent form — its decisions are the mere reflection of the United States Justice Department. In practice, the grand jury’s every move is controlled by the prosecution, whom the grand jury simply does not know it is supposed to be pitted against.”   Roger Roots[8]

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