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Stefan J. Padfield

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Director of the NCPPR's Free Enterprise Project. Prior experience includes 15+ years as a law professor, two federal judicial clerkships, private practice at Cravath, Swaine & Moore, LLP, and 6 years enlisted active duty (US Army). Immigrant (naturalized).

The Section on Agency, Partnership, LLCs and Unincorporated Associations is pleased to announce a Call for Papers for the Section’s program on The Challenges and Opportunities of Exotic Hybrids—Series LLCs, Up-C’s and Master Limited Partnerships. In addition to featuring invited speakers, we seek speakers (and papers) that will be selected from this call. The AALS Sections on Taxation, Securities Regulation, and Business Associations are co-sponsoring this program.

Business entity structures continue to evolve as legal innovations mature into recognized business association forms.  For example, variants on LLC and limited partnership forms can be used to maximize asset protection, leverage tax advantages, access capital markets, and achieve other business objectives.  The program will introduce attendees to several “exotic” hybrid structures and discuss the challenges and opportunities associated with each.  The program will be informative—inviting subject matter experts to educate audience members—and exploratory, critically examining the tax, governance, private ordering, securities, and policy implications of new entity structuring tools.

Any full-time faculty of an AALS member or fee-paid school who has written an unpublished paper, is working on a paper, or who is interested in writing a paper in this area is invited to submit a 1- or 2-page proposal by …

The Constitution tells us that patents can be given to “inventors,” and the Patent Act states that protection is available to “[w]hoever invents or discovers” an invention.  These are not generally controversial propositions, but like so many legal regimes, technology is forcing these analog laws to deal with digital phenomena. The culprits here are artificial intelligence and software capable of inventing new technologies. Can patents be given to digital “inventors,” and if not, does any human have the right to patent such an invention?

Obvious comparisons can be drawn to whether non-humans can be “authors”—as required by the Constitution—for copyright purposes. For instance, can a digital composer of music be given copyright protection for its work? The academic consensus is that technology is not an author (for Constitutional purposes), but the agreement dissolves from there. Some have argued that programmers should be given ownership rights—a reasonable proposition—but this sentiment is far from universal.

With little guidance from copyright law, parties have looked elsewhere for ideas in the patent sphere.  It has been posited that—if a non-human cannot be an inventor—current patent laws require the first person to “discover” the value of the non-human invention to be the inventor.

In 2012, the U.S. Patent Office instituted the Inter Partes Review (IPR) system—an administrative process allowing parties to challenge the validity of issued patents. If the agency determines a patent was erroneously granted, it is invalidated. IPR was intended as a less expensive alternative to litigating validity, and it serves this purpose. However—like many government programs—it had unforeseen consequences.

Almost any party hoping to challenge a patent can file for IPR; there is no requirement that they have a business interest in the patent. This lack of a standing requirement opened the door to a new type of rent seeking. Invalidity Assertion Entities (IAEs) threaten to use IPR to (attempt to) invalidate a patent, unless its owner pays a “settlement.” Anecdotal evidence shows that they target patents presently being litigated (presumptively because the patentee has the most to lose from invalidation at that time), but IAEs have no actual interest in the subject patent.

When this business model came to light, Congress reflexively proposed to do away with the practice. The legislation didn’t pass, but the negative response wasn’t surprising; rent seekers in patent law (e.g., patent trolls) have a bad reputation. I’ve written on IAEs (here and…

If you’re a college football fan it’s hard to forget the beginning of the 2013 season when star quarterbacks Johnny Manziel (Texas A&M) and Tajh Boyd (Clemson) took the Internet by storm after rubbing their fingers together in the air – prompting “Show Me the Money!”, Jerry Maguire type hype across the nation – following touchdown plays.  That season Manziel even donned the cover of Time Magazine with the accompanied headline: “It’s Time to Pay College Athletes”.

Not six months later, Region 13 of the National Labor Relations Board (NLRB) held that Northwestern University football players qualified as employees and could unionize and bargain collectively.  Although the national level NLRB ultimately overturned this decision – denying players at private universities the ability to form unions – these highly-broadcast events reignited the historic debate about whether student-athletes should be paid to play.

As a tax aficionado and amateur sports fanatic, I can’t help but ponder the various tax consequences associated with paying student-athletes.  Such intrigue ultimately led to the first of three papers I’ve written thus far addressing the tax issues surrounding the pay-for-play model.  ‘Show Me the Money!’ – Analyzing the Potential State Tax Implications of Paying Student Athletes evaluates…

Many thanks to Haskell Murray and the Business Law Prof Blog editorial crew for inviting me to serve as a guest blogger during the final countdown to 2017.  For the next few weeks, I’d like to share some of my research in the areas of amateur sports and tax.

Like many, I am an avid enthusiast of the Olympics.  During the 2012 Summer Games in London which highlighted extraordinary athletic prowess from the likes of Michael Phelps, Usain Bolt, and the all-impressive gold medal beach volleyball duo Ross and Kessy, Marco Rubio introduced Bill S.3471 (The Olympic Tax Elimination Act (OTEA)) which proposed to exclude from U.S. Olympic athletes’ gross income the value of any prizes or awards won during the Games.  

This bill piqued my interest in exploring the tax issues facing U.S. Olympic medal-winning athletes.  In 2013, my Central Michigan sports law colleague Adam Epstein and I published Taxing Missy: Operation Gold and the 2012 Proposed Olympic Tax Elimination Act, which explores general tax issues within sports, investigates the U.S. Olympic Committee’s (USOC) Operation Gold program (awarding $25K for gold, $15K for silver, and $10K for bronze medals won at the Olympics by U.S. athletes), analyzes…