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Articles 1 - 5 of 5
Full-Text Articles in Law
Judicial Federalization Doctrine, Gerald S. Dickinson
Judicial Federalization Doctrine, Gerald S. Dickinson
Articles
This Article explores the concept of “judicial federalization doctrine.” The doctrine emanates from well-documented areas of federal constitutional law, including exactions, racially motivated peremptory challenges, the exclusionary rule, same-sex sodomy, marriage, and freedom of speech and press. The origin and development of these federal doctrines, however, is anything but federal. The U.S. Supreme Court has, on rare occasions, heavily consulted with or borrowed from state court doctrines to create a new federal jurisprudence. While the literature addressing the Court’s occasional vertical dependence on state court doctrine is sparse, there is a complete absence of scholarly attention studying the Court’s reluctance …
Public Good Through Charter Schools?, Philip Hackney
Public Good Through Charter Schools?, Philip Hackney
Articles
Should nonprofit charter schools be considered “charitable” under § 501(c)(3) of the Internal Revenue Code and be entitled to the benefits that go with that designation (income tax exemption, charitable contribution deduction, etc.)? Current tax law treats them as such; the question is whether there is a good rationale for this treatment. In addition to efficiency and equity, I consider political justice as a value in evaluating tax policy. By political justice, I mean a democratic system that prioritizes the opportunity for more people to have a voice in collective decisions (political voice equality or PVE). Thus, a tax policy …
A More Capacious Concept Of Church, Philip Hackney, Samuel D. Brunson
A More Capacious Concept Of Church, Philip Hackney, Samuel D. Brunson
Articles
United States tax law provides churches with extra benefits and robust protection from IRS enforcement actions. Churches and religious organizations are automatically exempt from the income tax without needing to apply to be so recognized and without needing to file a tax return. Beyond that, churches are protected from audit by stringent procedures. There are good reasons to consider providing a distance between church and state, including the state tax authority. In many instances, Congress granted churches preferential tax treatment to try to avoid excess entanglement between church and state, though that preferential treatment often just shifts the locus of …
Takings Federalization, Gerald S. Dickinson
Takings Federalization, Gerald S. Dickinson
Articles
Federal constitutional law exerts an outsized role and influence over state constitutional law. In takings, Supreme Court jurisprudence has dominated state court interpretations of analogous state constitutional takings provisions. This does not mean, however, that the Supreme Court always leads and the state courts always follow. At times, the opposite is true. There is, indeed, an underappreciated and under addressed role reversal in which the Supreme Court follows the lead of state courts. State takings doctrines have, on limited occasions, influenced federal takings jurisprudence. This federalization of takings is a distinct feature of judicial dual sovereignty where the Supreme Court …
A Theory Of Federalization Doctrine, Gerald S. Dickinson
A Theory Of Federalization Doctrine, Gerald S. Dickinson
Articles
The doctrine of federalization—the practice of the U.S. Supreme Court consulting state laws or adopting state court doctrines to guide and inform federal constitutional law—is an underappreciated field of study within American constitutional law. Compared to the vast collection of scholarly literature and judicial rulings addressing the outsized influence Supreme Court doctrine and federal constitutional law exert over state court doctrines and state legislative enactments, the opposite phenomenon of the states shaping Supreme Court doctrine and federal constitutional law has been under-addressed. This lack of attention to such a singular feature of American federalism is striking and has resulted in …