Mark Gergen

Research Expertise and Interest

contracts, torts, federal income taxation, partnership tax

Research Description

Mark Gergen joined the Berkeley faculty in 2008 after teaching at the University of Texas School of Law for over two decades.  His principal teaching interests are in Contracts, Torts, Federal Income Tax, and Partnership Tax.  He has also taught a wide range of other subjects, including, since joining the Berkeley faculty, Property, Remedies, and Taxation of Financial Products and Institutions.

Gergen’s current scholarly interests include both private law and tax.  His major private law publications since joining the Berkeley faculty include:

  •  Negligent Misrepresentation as Contract, forthcoming in California Law Review
  •  Causation in Disgorgement, 92 Boston University Law Review 827 (2012)
  •  The Supreme Court’s Accidental Revolution? The Test for Permanent Injunctions, 112 Columbia Law Review 203 (2012)(with John M. Golden and Henry E. Smith)
  •  A Theory of Self-Help Remedies in Contract, 89 B.U.L. Rev. 1397 (2009)

His major tax publications since joining the Berkeley faculty include:

  •  Uncertainty and Tax Enforcement: A Case for Modest Fault-Based Penalties, 64 Tax L. Rev. 453 (2011)
  •  A Pragmatic Case for Taxing an Equity Fund Manager’s Profit Share as Compensation, 87 Taxes 139 (March 2009)
  •  How Corporate Integration Could Kill the Market for Corporate Tax Shelters, 61 Tax L. Rev. 145 (2008)

Works co-authored with other members of the Berkeley faculty include:

  •  Common Law Judicial Decision Making: The Case of the New York Court of Appeals, 60 Buffalo L. Rev. 897 (2012)(with Kevin M. Quinn)
  •  Fuller, Eisenberg, and Gergen, Basic Contract Law (9th ed. 2013)(with Melvin Eisenberg)

Gergen’s current scholarly projects include a study of the design and feasibility of a state carbon tax, a project with Kevin Quinn studying patterns of disagreement on the California Supreme Court in the 20th Century, a paper on the use of conflict and distrust as levers for tax compliance, and a paper on the enforceability of contract disclaimers against non-parties.

Gergen graduated from the University of Chicago Law School in 1982.   He clerked for the Hon. Harrison L. Winter, United States Court of Appeal for the Fourth Circuit (1982-1983), and was an associate at Arnold and Porter (1983-1985).  He has visited at University College London Faculty of Laws and Harvard Law School.

Gergen was Reporter for Restatement Third, Economic Torts and Related Wrongs from 2005 to 2007 and is an Advisor to the Restatement Third, Restitution and Unjust Enrichment.  He is author of the chapter on Partnership Interests in Ferguson, Freeland, and Ascher, Federal Income Taxation of Estates, Trusts, and Beneficiaries (Aspen Law & Business).  He is the American Editor for the Restitution Law Review.

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