Brian D. Lepard

Law Alumni Professor of Law

213 LAW UNL 68583-0902
(402)472-2179 | Email

Areas of Expertise
  • Business Planning
  • Comparative Law
  • Corporate Tax
  • Individual Income Tax
  • International Human Rights Law
  • International Perspectives in the U.S. Legal System
  • International Tax
  • Partnership Taxation
  • Tax Policy
Education
  • J.D., 1989, Yale Law School
  • B.A., 1983, Princeton University

Appointments

  • Assistant Professor of Law, 1995
  • Associate Professor of Law, 2000
  • Professor of Law, 2004
  • Law Alumni Professor of Law, 2008

Biography

Professor Lepard is a leading expert in the fields of tax law, international law, and comparative law.  He joined the faculty in 1995. He received his undergraduate degree from Princeton University in 1983. At Princeton, he was named a Scholar of the Woodrow Wilson School of Public and International Affairs and concentrated on the study of international law and organization, receiving a prize from the Woodrow Wilson School for his thesis on the development of the idea of the League of Nations in France during the First World War. Following his graduation from Princeton, he worked for three years as an international human rights law specialist at the United Nations Office of the Baha'i International Community, a non-governmental organization. In 1989, he received his J.D. degree from Yale Law School, where he was an editor of the Yale Journal of International Law.  From 1989 until 1995 he practiced tax law as an associate with the Philadelphia-based law firm of Dechert Price & Rhoads, with a special focus on international tax law as well as exempt organizations law.

Professor Lepard has multidisciplinary scholarly and teaching interests in the fields of tax and business law, including international tax law; international human rights law; humanitarian intervention; international legal theory; comparative law, including comparative religious law; ethics; and world religions. He is the author of seven books and numerous articles relating to these diverse subject areas. Professor Lepard has delivered presentations on international law, human rights, and comparative law at conferences around the world, including in Albania, Australia, Canada, Ecuador, French Polynesia, Iceland, Ireland, Israel, Italy, the Netherlands, South Africa, and the United Kingdom.

Professor Lepard serves as Director of Law College Programs of the University of Nebraska-Lincoln’s Forsythe Family Program on Human Rights and Humanitarian Affairs.  He is the faculty adviser for the Law College’s program of concentrated study on international human rights law.  He is a member of the editorial review boards of a number of academic journals, including The Journal of Human Rights, Religion and Human Rights:  An International Journal, and The Journal of Baha'i Studies. He has served as chair of the International Legal Theory Interest Group of the American Society of International Law and serves currently as co-chair of the Committee on the Formation of Customary International Law of the American Branch of the International Law Association. He is a member of the International Board of Consultants of the Global Ethics and Religion Forum and of the Board of Advisors of Genocide Watch.  He also serves as faculty adviser to the University of Nebraska-Lincoln Bahá'í Association.

During the 2012-2013 academic year, Professor Lepard is teaching International Human Rights Law Seminar, Comparative Law: World Legal Systems and Their Relevance to U.S. Law and Practice, International Perspectives in the U.S. Legal System: Practicing Law in a Global Legal Environment, and Business Planning.

Professor Lepard is admitted to practice in Nebraska, Pennsylvania, and New Jersey, and before the U.S. Tax Court.  He is fluent in French. 

Business Planning

Law 648/G (ACCT *848) (1-4 cr) Prereq: LAW 632/G, 638/G This is a course about business planning – the process of planning business transactions in a way that takes into account many relevant bodies of law as well as the needs of clients.  Students will learn about the goals and methods of business planning, the role of ethics in providing legal advice, factors that influence the choice of business entity for a venture, legal rules applying to partnerships and limited liability companies (“LLCs”), relevant laws dealing with corporations and securities regulation, laws that pertain to corporate restructurings, and laws applying to the purchase, sale, or merger of corporate businesses. Thus, the course will seek to integrate insights from many fields, some of which students may have already studied in other courses, including corporate law, partnership and LLC law, securities regulation, antitrust law, individual income tax, corporate tax, and partnership tax. Most importantly, students will acquire practical skills in applying these multiple bodies of law to help clients solve practical business planning problems involving the formation, incorporation, restructuring, and disposition of a business. These include skills in drafting relevant legal documents, including legal memoranda, articles of incorporation or organization, and restructuring, sales or merger agreements. Students will acquire these skills by working in “firms,” and each firm will prepare one or two problems. Prerequisite: Business Associations and Corporate Tax.

Comparative Law

Law 654/G (1-4 cr) This is a course on comparative law – the study of the different legal systems of the world and how they relate to one another.  A basic knowledge of these legal systems and their differences and similarities is becoming increasingly important for attorneys as the legal world grows interdependent and issues arise in domestic courts that require recourse to foreign law under U.S. conflict of law principles.  U.S. law firms of all sizes now routinely handle matters that involve foreign legal rules.  Moreover, a knowledge of different legal systems and their varied approaches to common legal problems can help a U.S. attorney acquire a more profound and effective understanding of the U.S. legal system.

In this course we will seek to develop a general understanding of the major foreign legal systems and their impact on U.S. law, lawyers and clients. We will devote some time at the beginning of the course to acquiring familiarity with the uses and methodologies of comparative law and with the history of the major legal systems of the world, including those based on religious law.  These include indigenous, Jewish, Roman, European, Christian, Islamic, Hindu, Asian, British, and American legal systems.  We will compare the U.S. common law system with the British common law system and with the civil law systems of continental Europe in some detail, and will explore the uses of foreign law in U.S. federal and state courts. 

Substantive topics for comparative study will include torts, contracts, civil procedure, criminal procedure, and the protection of human rights, as well as other subjects of interest to the class.  We will also investigate the potential for identifying general principles of law and ethics common to most legal systems.  We will acquire skills in thinking critically about comparative law and what light it can shed on the American legal system and possible reforms of it.  Our approach will be interdisciplinary and integrate insights from fields such as history, legal theory, political science, ethics, and comparative religion. We will also read cases decided by foreign courts on such issues as the death penalty and compare the approach of these courts with that of U.S. courts.

International Human Rights Law Seminar

Law 707/G (3 cr)In this seminar we will examine the historical, political and philosophical roots of international human rights law, its development over the course of the last century, and its contemporary role in international affairs. Specific topics that we may discuss include current attempts to strengthen U.N. fact-finding and implementation mechanisms; the relationship between U.N. peacekeeping and peacemaking, on the one hand, and international humanitarian law, on the other; the use of military operations to protect human rights; the impact of international human rights law on efforts to combat terrorism; the activities of regional human rights systems; the effect of the United States’ signature and ratification of U.N. human rights conventions and the role of such conventions, and international human rights law generally, in U.S. courts; and contemporary efforts to enforce international human rights law through the criminal process, including through the International Criminal Court. Students will be required to write a substantial research paper on a topic of their choice.

International Perspectives in the U.S. Legal System: Practicing Law in a Global Legal Environment

Law 518/G (2 cr spring semester)  This course will help students situate their study of traditional first-year courses in an international context and to prepare for legal practice in a global legal environment.  It will assist students in developing an understanding of how to handle the inevitable treaty and foreign law issues that can arise in the practice of virtually every area of law. The course will cover the sources of international law and the relationship of international law (particularly treaties) to the U.S. legal system, including in what situations a treaty be used in U.S. courts. It will also include an overview of conflict of law rules, a survey of differences and similarities in the major legal systems of the world, and a comparative examination of how foreign legal systems regulate other areas of law studied in the first year, such as torts, contracts, and civil procedure. 

Taxation-Individual Income

Law 637/G (ACCT *837) (3-4 cr, max 4) This is a course about the federal income tax law – a law that affects all of us, in virtually everything we do. It is also one of the first courses that law students will have taken that involves the intensive study of a sophisticated and complex statute – the Internal Revenue Code (“Code”) – a statute that in turn has been elaborated and applied in Treasury Department regulations, court cases, and numerous forms of guidance prepared by the Internal Revenue Service (“IRS”). In this course we will study the evolution of the federal income tax law; acquire familiarity with the processes by which the law is made, interpreted, applied, and enforced; learn to read and interpret the Code, regulations, case law, and IRS guidance; and acquire skills in thinking critically about how this law can and should apply to concrete situations faced by individual taxpayers. Topics we will cover include the concept of income, deductions, assignments of income, capital gains, and tax accounting. We will also devote attention throughout the course to the larger policy issues permeating the federal income tax law. These issues include whether and how the federal income tax law should be used as an instrument to affect taxpayer behavior or to achieve a more just distribution of income in our society.

Articles

  • “Opportunities and Challenges for Taxpayers in Applying the Services Cost Method in the Section 482 Regulations on Services.” (2012).
  • “A Bahá’í Perspective on International Human Rights Law.” In Bahá’í-Inspired Perspectives on Human Rights, Juxta Publishing, (2012).
  • “The Legal Status of the 1996 Declaration on Space Benefits: Are Its Norms Now Part of Customary International Law?”  In Soft Law in Outer Space: The Function of Non-Binding Norms in International Space Law, ed. Irmgard Marboe, 289-313. Vienna: Böhlau, (2012).
  • “Parochial Restraints on Religious Liberty.”  In Parochialism, Cosmopolitanism, and the Foundations of International Law, ed. M.N.S. Sellers, 225-49.  Cambridge: Cambridge University Press, (2012).
  • “International Law and Human Rights.”  In Handbook of Human Rights, ed. Thomas Cushman, 583-97.  London: Routledge, (2012).
  • “Harmony and Dissonance in International Legal Theory: Introductory Remarks by Brian Lepard.” American Society of International Law Proceedings 105 (2012): 451-52.
  • “World Religions and World Peace: Toward a New Partnership.” In The World’s Religions: A Contemporary Reader, ed. Arvind Sharma, 75-80.  Minneapolis: Fortress Press, (2011).
  • “A Bahá’í Perspective on the Universal Declaration of Human Rights by the World’s Religions.” In The World’s Religions: A Contemporary Reader, ed. Arvind Sharma, 115-17. Minneapolis: Fortress Press, (2011).
  • “Many Questions Unanswered Concerning Application of Codification of Economic Substance Doctrine to Transfer Pricing.” (2011).
  • “How Should the ICC Prosecutor Exercise His or Her Discretion?  The Role of Fundamental Ethical Principles.”  John Marshall Law Review 43 (2010): 553-67.
  • "Book Review: The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All, by Gareth Evans." American Journal of International Law 104 (2010): 704-710.
  • "Towards a Normative Theory of Customary International Law as Law." American Society of International Law Proceedings 103 (2009): 379-82.
  • "The Bahá'í Faith," in The Oxford Encyclopedia of Human Rights, David P. Forsythe, ed., Oxford University Press (2009)
  • "Implementación de la Declaración Universal de los Derechos Humanos en lel nuevo siglo a través de la consulta de mente abierta" ("Implementing the Universal Declaration of Human Rights in the New Century Through Open-Minded Consultation"). In Cohesión social y derechos humanos, ed. Ana Lucía Córdova Cazar and Francisco López-Bermúdez. Quito: Córporacion Editora Nacional, (2009).
  • "A Bahá'í Perspective on Human Rights and the World's Religions After September 11," in Windows to World's Religions: Selected Proceedings of the Global Congress on the World's Religions After September 11, Arvind Sharma, ed., D.K. Printworld (2009)
  • "A Bahá'í Perspective on the Universal Declaration of Human Rights by the World's Religions After September 11, 2001," in The World's Religions After September 11, Vol. II, Arvind Sharma, ed., Praeger (2009)
  • "Divine Rights: Toward a New Synthesis of Human Rights and World Religions," in The World's Religions After September 11, Vol. II, Arvind Sharma, ed., Praeger (2009)
  • "World Religions and World Peace: Toward a New Partnership," in The World's Religions After September 11, Vol. I, Arvind Sharma, ed., Praeger (2009)
  • "Jurying Humanitarian Intervention and the Ethical Principle of Open-Minded Consultation," in Humanitarian Intervention, Terry Nardin and Melissa Williams, eds., New York University Press (2005)
  • "Iraq, Fundamental Ethical Principles, and the Future of Human Rights," 4 The Journal of Human Rights 53 (2005)
  • "Protecting the Human Family: Humanitarian Intervention, International Law, and Baha'i Principles," 13 The Journal of Baha'i Studies 33 (2004)
  • "Why Obey International Law? Theories for Managing Conflicts with Municipal Law," 97 American Society of International Law Proceedings 111 (2003) (with Hilary Charlesworth, Harold Hongju Koh, and Fernando Teson)
  • "Humanitarian Intervention, International Law and the World Religions," in Human Rights and Responsibilities in the World Religions, Joseph Runzo, Nancy Martin, and Arvind Sharma, eds., Oneworld Publications (2003)
  • "Humanitarian Intervention and International Law in the New Millennium," The Nebraska Transcript (2001)
  • "Is the United States Obligated to Drive on the Right? A Multidisciplinary Inquiry into the Normative Authority of Contemporary International Law Using the Arm's Length Standard as a Case Study," 10 Duke Journal of Comparative and International Law 43 (2000)
  • "The Prospects for a Permanent United Nations Military Force: Lessons from the Debate on the French Proposals at the Paris Peace Conference of 1919, 75 Years Later," 88 American Society of International Law Proceedings 390 (1994)
  • "The Role of Religions and Beliefs in Establishing Social Peace," in "Proceedings of an International Symposium on 'Freedom of Conscience: Basis for Social Peace', Tirana, Albania, 26-28 May, 1992," 4 Conscience and Liberty: International Journal of Religious Freedom 113 (1992)
  • "Offering Shares of Non-U.S. Investment Funds in the United States: A U.S. Securities and Tax Law Perspective," 7 Journal of International Banking Law 344 (1992) (with Robert W. Helm and Natalie S. Bej).
  • "From League of Nations to World Commonwealth: A Baha'i Perspective on the Past, Present and Future of International Organization," in Emergence: Dimensions of a New World Order, Charles Lerche, ed., U.K. Baha'i Publishing Trust (1991)

Books

Overview of Publications

Publications on Tax and Business Law

Professor Lepard has published extensively in the field of tax and business law. He has written three Tax Management Portfolios relating to the allocation of income and deductions among related businesses. Most recently, he has published the second edition of his treatise entitled “Section 482 Allocations: General Principles in the Code and Regulations,” which was published in late 2012 as Tax Management Portfolio 551-2d by Bloomberg BNA. The book lays out a novel approach to understanding and critiquing the law on transfer pricing between related companies, which is one of the most controversial areas involving international business transactions. The second editions of two other Tax Management Portfolios on transfer pricing that Professor Lepard has authored are expected to be published in 2013. Furthermore, Professor Lepard is principal co-author of a major book on the taxation of exempt health care providers, “Unrelated Business Income Tax Issues in Health Care,” published by Bloomberg BNA as part of its Health Law & Business series. These treatises are referred to by legal and accounting practitioners throughout the U.S.

Publications on International Law, Comparative Law, and Global Ethics

Professor Lepard has also published widely on international law, comparative law, and global ethics. He has written a major treatise on customary international law entitled “Customary International Law: A New Theory with Practical Applications,” which was published by Cambridge University Press in 2010. It is one of the most comprehensive book-length treatments of the theory of customary international law to appear in the last forty years. The book articulates a systematic new theory of customary international law. It is multidisciplinary, and draws insights from many fields related to international law, including ethics, legal theory, political science, and game theory. It includes a chapter dealing with the customary law status of global transfer pricing rules and three chapters dealing at length with customary international human rights norms, including those relating to religious freedom. The book has received praise in the American Journal of International Law, the European Journal of International Law, and the Leiden Journal of International Law, among other publications.

Professor Lepard has written a number of books and articles relating to international human rights and humanitarian law. His 2002 book, “Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions,” published by Pennsylvania State University Press, is referred to in academic courses throughout the world and enjoyed critical acclaim in such publications as The Economist, the American Journal of International Law, the British Yearbook of International Law, Ethics & International Affairs, and Political Science Quarterly. The book offers a new method for analyzing humanitarian intervention that seeks to resolve conflicts among legal norms by identifying ethical principles embedded in the U.N. Charter and international law and relating them to a pivotal principle of “unity in diversity.” It includes chapters on human rights violations as a “threat to” or “breach of” the peace under Chapter VII of the U.N. Charter, consent, impartiality, the use of force, the responsibility to protect human rights victims, the command and composition of multinational peace forces, and the Security Council’s decision-making process.

In 2005 Professor Lepard published the book “Hope for a Global Ethic: Shared Principles in Religious Scriptures.” It reviews scriptures and legal texts from seven world religions – Hinduism, Judaism, Buddhism, Confucianism, Christianity, Islam, and the Bahá’í Faith – and identifies numerous common ethical and legal principles among them, including relating to human rights, justice, respect for law, and peace.

Excerpts from Reviews of Professor Lepard’s Books

Customary International Law: A New Theory with Practical Applications:

“This volume occupies a unique niche in public international law theory: a superb treatment of sources of international obligation, as well as foundational ethics. Brian Lepard is as a leading moral philosopher of the field.” - The late David J. Bederman, K.H. Gyr Professor of Private International Law at Emory University School of Law

“Lepard has developed an original theory of customary international law. . . . Concerning the structural analysis of social dilemmata, it is a benefit of Lepard’s analysis that he realizes that the question of customary law does not deserve a one-size-fits-all approach. Different incentive structures may require different solutions.” – The European Journal of International Law

“The theory sketched here has much to commend it. . . . The theory is both descriptive and prescriptive in the sense that it promises a better analytical understanding of existing practice, but also one that does not stifle the progressive development of new norms through legal reasoning. . . . Customary International Law: A New Theory with Practical Applications contains some excellent ideas, in particular about utilizing insights from game theory, and makes a valuable contribution to the existing literature.” – The Leiden Journal of International Law

Hope for a Global Ethic: Shared Principles in Religious Scriptures:

“[Professor Lepard] is successful in commencing a discussion that must not be overlooked. As he suggests, it is but the start of the discussion. Success will not be had until we get the critical mass accepting those points raised by Lepard as the basis of our fundamental principles of what it means to be human.” – The Journal of Law and Religion

Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions

“To stop history from repeating itself, Brian Lepard’s guide offers a clear legal road map for humanitarian intervention. He draws principles from international law and religious texts to help interveners solve ethical conflicts between human rights and national sovereignty, the use of force and peaceful conflict resolution, or effective intervention and remaining impartial.” – The Economist

“A distinctive feature of Brian Lepard’s fascinating book is that he does not allow Kosovo to dominate his analysis. . . . In attempting to draw out the ethical principles from the world’s main beliefs, Lepard has the laudable practical aim of seeking acceptance from governments and peoples from the vast majority of UN member States. In essence he is seeking a background universal morality that can resolve disputes about the applicability of legal principles in problem areas (p. 115). . . . [B]y divorcing ethical analysis from the baggage of natural law, the approach does overcome charges of ethnocentricity. This, together with a clear explanation of ethically derived principles for the development of the UN system (eg pp. 241-53), make the book a very appealing addition to the considerable amount of literature on this subject. . . . [T]he depth and originality of its ethical analysis should help serve to break the current stalemate that exists between international lawyers.” – The British Yearbook of International Law

“Brian Lepard . . . has made a welcome, and strikingly ambitious, attempt to develop and apply a system for prioritizing the values that often clash when demands for humanitarian intervention arise. . . . Overall, Lepard’s book represents a major and creative effort to come to terms with the complex legal and ethical dilemmas posed by humanitarian intervention. The analysis will be of considerable interest to anyone seeking insights into these dilemmas.” – The American Journal of International Law

“Lepard . . . makes two important contributions to the debate on humanitarian intervention: he emphasizes how an attention to ethics and morals should play an important role in international relations, and he builds compelling bridges between these foundations and current legal mechanisms. . . . [A] monumental accomplishment. . . . The strength of the book . . . is Lepard’s analysis of ethical and religious traditions, and his meticulous connection of these traditions’ imperatives to key provisions in the UN Charter.” – Ethics and International Affairs

“Brian D. Lepard . . . successfully answers the enormous challenge of sorting out . . . intricate, seemingly insoluble obligations. He is pleading in essence for a cautious universal patriotism. It would offer help to needy and vulnerable groups based on reasonable, pragmatic criteria that would duplicate the care and concern sovereign states exhibit toward their own citizens through a trust theory of government and limited state sovereignty. . . . This treatise is methodologically sound, informative, and well-researched. For example, Lepard superbly identifies and delineates several layers of human rights and argues for the need to defend the most essential of them. The book closely analyzes recent brutal conflicts, drawing lessons from delays in response and deployment of United Nations, American, and other forces in recent atrocities across the globe. These human tragedies include the Balkan wars, Rwanda, Afghanistan, Somalia, Congo, Sierra Leone, and Haiti. . . . This compendium offers a judicious balance between law, international relations, and history. Intricate legal, political, and ethical issues are comprehensively reasoned and argued. The writing is sophisticated, yet can be read by laypersons and undergraduates.” – Political Science Quarterly

“Debates over the desirability and moral necessity of humanitarian intervention often end in a realist-idealist stalemate caught somewhere between national interest and international law, with a dash of moral righteousness on the side. Brian Lepard enters this debate by trying to approach the question from a new perspective. He blends a comprehensive analysis of international law with ethical discussion based on the writings of seven major world religions and philosophical approaches. . . . Primarily, Lepard bases his approach on the notion of ‘unity in diversity,’ which he sees echoed in world religious and philosophical traditions. Unity in diversity is founded on the idea of a common family of humanity. After establishing this ethical standard, Lepard methodically works through the implications for it in international law and humanitarian intervention. This is a work that is really not like anything before it and that should be read to be appreciated.” – The Online Journal of Peace and Conflict Resolution

“Lepard makes a convincing case that the religio-ethical and legal frameworks are in place for the world community to respond to humanitarian emergencies should it so choose. . . . Lepard’s contribution is unique. Who will find this book helpful? Not only policymakers but also the growing number of people, particularly those in religious communities, who are grappling with the role of religion in resolving conflicts and in nation-building in postconflict societies.” – Christian Century

“Brian Lepard brings a massive research effort to bear in support of his fresh approach to humanitarian intervention. By relying on a blend of ethics, religion, and law, this study challenges the validity of both realism and liberalism as the basis for policy and interpretation in international relations. An excellent book that deserves a wide readership and much discussion.” – Dr. Richard Falk, Albert G. Milbank Professor of International Law and Practice, Emeritus, Princeton University

“Lepard provides a fresh exploration of legal and moral justifications for humanitarian intervention. . . . He opens new analytic vistas and provides a foundation for resolving conflicts over the content of the law. He applies the framework in masterly examinations of intervention in Bosnia, Somalia, Rwanda, Haiti, and Kosovo. Rarely do we see an author sustain as much sensitivity to opposing arguments while constructing a strong ethical basis for shaping diplomacy, ethics, and international law. This is a groundbreaking and, in its moral sweep, even a breathtaking book.” – Dr. Robert C. Johansen, Professor Emeritus of Political Science and Peace Studies, The Joan B. Kroc Institute for International Peace Studies, University of Notre Dame

Individual Income Tax Makeup Class: April 11th, 2012

 

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