ILLINOIS BUSINESS LAW JOURNAL A Publication of the Students of the University of Illinois College of Law SPRING 2007 ISSUE, VOLUME 4 Ill. Bus. L.J. | Vol. 4 Please direct all inquires to: Illinois Business Law Journal University of Illinois College of Law 504 E. Pennsylvania Avenue Champaign, IL 61820 [email protected] Page 2 of 202 Ill. Bus. L.J. | Vol. 4 Table of Contents DIVERSIFICATION IN CORPORATE LAW ........................................................................... 6 FIRST YEAR, SECOND CHANCE ....................................................................................... 15 CUOMO’S CODE OF CONDUCT: TROUBLED TIMES FOR THE STUDENT LOAN INDUSTRY .......................................................................................................................................... 25 ACCESSING UNCLAIMED TIF FUNDS ............................................................................. 31 UNDOCUMENTED TAXATION: MORE ILLEGAL IMMIGRANTS LIKELY TO FILE RETURNS .......................................................................................................................................... 34 EVOLUTION OF MATERNALISM IN CORPORATE LAW ................................................... 39 ANCHORS AWEIGH! THE U.S. NAVY, THE U.S. COAST GUARD, AND REGULATING INTERNATIONAL SHIPPING ON THE HIGH SEAS ............................................................ 52 NOT SO FUNNY FUNNY BUSINESS .................................................................................. 61 THE DARK SIDE OF LAND USE RESTRICTIONS ............................................................... 65 A PENNY FOR YOUR POUNDS: U.S. COMPANIES ARE PAYING OVERWEIGHT EMPLOYEES TO GET INTO SHAPE .................................................................................... 69 THE APPLICATION OF EU COMPETITION LAW TO PROFESSIONAL SOCCER: SHOULD THE EU REGULATE PROFESSIONAL SOCCER? (PART II) ................................................ 76 PESTILENCE, WAR, FAMINE, DEATH…AND UNEMPLOYMENT?: AN ANALYSIS OF THE INTERNET MESSAGE BOARDS’ IMPACT ON LAW FIRM RECRUITMENT ......................... 80 CHINA APPROVES BILL TO END PREFERENTIAL TAX TREATMENT FOR FOREIGN COMPANIES ...................................................................................................................... 86 Page 3 of 202 Ill. Bus. L.J. | Vol. 4 FINDING REIT INVESTORS THROUGH THE EB-5 VISA PROGRAM ................................. 90 ANATOMY OF A TAX PROTESTER .................................................................................... 94 WILL CONGRESS KILL THE “DEATH” TAX? ................................................................... 99 THE CLASSICAL LEGACY OF ADMIRALTY: THE ROMAN EXPERIENCE (PART TWO OF A TWO-PART SERIES) ........................................................................................................ 103 AUTOMATED DOCUMENT REVIEW: COST SAVER FOR THE STARTUP FIRM? .............. 123 IRS STUDY CONFIRMS THE OBVIOUS ............................................................................ 126 DON’T FRANCHISE ME! THE NFL’S EMERGING DILEMMA ........................................ 131 TURNING BROWNFIELDS INTO BIG GREEN: PRACTICAL CONCERNS REGARDING CONTAMINATED REAL ESTATE .................................................................................... 138 SIRIUS-XM “MERGER OF EQUALS” FACES REGULATORY CHALLENGE ..................... 144 “THE IRONY OF ALL OF THIS, IS THAT THEY FAILED TO SEE THE IRONY OF ALL THIS.” ........................................................................................................................................ 149 LOOPHOLE IN THE U.S.A. PATRIOT ACT ENABLES FINANCIAL INSTITUTIONS TO PROVIDE SERVICES TO UNDOCUMENTED IMMIGRANTS ............................................... 156 INVESTING IN PRIVATIZED MUNICIPAL INFRASTRUCTURE: ACCOUNTING FOR THE LEGAL RISKS ................................................................................................................... 161 CAN BUSH’S HEALTH INSURANCE TAX PROPOSAL HELP SOLVE AMERICAN HEALTHCARE WOES? .................................................................................................... 165 NO JUST COMPENSATION, JUST REPRESENTATION? ................................................... 171 Page 4 of 202 Ill. Bus. L.J. | Vol. 4 THE CLASSICAL LEGACY OF ADMIRALTY: THE PRE-ROMAN WORLD (PART ONE OF A TWO-PART SERIES) ........................................................................................................ 180 WHEN COACH BLOWS THE WHISTLE ARE YOU OUT OF BOUNDS? ............................. 191 THE BUSINESS OF SURVEILLANCE: BALANCING CONCERNS OVER UBIQUITOUS TECHNOLOGY ................................................................................................................ 194 DEFEATING THE PURPOSE OF THE TAX PENALTY – AN EXERCISE IN UNDERDETERRENCE ...................................................................................................... 199 Page 5 of 202 Ill. Bus. L.J. | Vol. 4 DIVERSIFICATION IN CORPORATE LAW I. Introduction In today’s world where every law firm claims to value diversity throughout their ranks and prioritize it as a top concern in recruiting, it is easy to forget that even in the 1960s, Secretary of Labor Willard Wirtz called the American legal profession “the worst segregated group in the whole economy.” [1] According to a 2003 American Bar Association study, slightly more than 89% of all lawyers in the nation are white. The overall numbers of women and minorities at the associate level are improving substantially, but the odds of making partner stay low. [2] Lawyers of color account for less than 5% of partners in all of the largest American law firms, according to the National Association for Law Placement. [3] White males have five times better odds than women of making partner, and seven times better than Asian-Americans or African-Americans. [4] Minority-owned firms provide a greater likelihood for advancement for many associates towards partnership, and the Clinton administration’s programs worked to create a better environment for such firms. [5] However, in recent years a backslide has occurred; legal and political changes have made it more acceptable for corporations and the government to give short shrift to minority-owned firms. [6] Still, without pressure from the government, market forces are causing diversity in larger firms to become a business imperative. [7] II. External Pressure to Diversify Page 6 of 202 Ill. Bus. L.J. | Vol. 4 While large law firms have advised their own clients to diversify their employee population, they themselves have made virtually no progress in diversifying their own ranks. [8] In a legal profession “that prides itself on promoting equal opportunity under the law,” firms are failing to adhere to their own standards. [9] Meanwhile, rapid globalization of international commerce is changing the face of the business world. [10] The Supreme Court has stated that “today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” [11] Companies and law firms of today have found that maintaining a strong posture on diversity promotes market share success. [12] Some of the largest corporate clients to law firms are demanding that numbers of minority employment through the associate and partner ranks improve – and threatening to fire firms that do not comply or show adequate progress. [13] The business world today looks to become “the catalyst to change law firm culture.”[14] Some clients even ask for not just diversity statistics overall for the firm, but also for the figures relating to the team of lawyers working on the specific relevant matter, and the hours billed by minority lawyers. [15] Clients are put off by a “beauty contest with a token lawyer in order to try and demonstrate diversity,” says one chairwoman of a large firm’s diversity committee. [16] The president of the American Bar Association stated that “Public confidence in our profession – and the justice system as a whole – requires that law firms and the judicial system reflect the full diversity of our society. Today they do not.” [17] Page 7 of 202 Ill. Bus. L.J. | Vol. 4 The road ahead for law firm recruiters is a difficult one – though their corporate mottos and firm policies paint a picture of collegiality and a world where skin color is of no consequence, the reality is turning out to be the opposite. [18] Aggressive recruitment of minorities is being painted as a lose-lose situation for everyone when the program is not well run. III. Internal Strife White attorneys complain among themselves that minorities are being given special treatment and hired only to pay lip service to political correctness, and resent their minority colleagues for what they see as an unfair exemption to the meritocracy. [19] A former white partner at a San Francisco law firm stated that he was exasperated with “an excessive amount of whining” by minorities at the firm. [20] Meanwhile, a black lawyer at the same firm stated that he “was getting really frustrated” with the situation as well. “Success or failure depends on developing mentor relationships, and those are much more difficult for minorities to develop if there are no other minorities in positions of influence or power,” he said. [21] Indeed, attorneys of color are sometimes called “a token presence in the legal system.” [22] Their numbers are high enough to undermine claims of racial exclusivity and elitism, but far too low to create a