Law Commons^™

Keep Charitable Oversight In The Irs, Philip Hackney

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Critics are increasingly calling for Congress to remove charity regulation from the IRS. The critics are wrong. Congress should maintain charity regulation in the IRS. What is at stake is balancing power between the state, charity as civil society, and the economic order. In a well-balanced democracy, civil society maintains its independence from the state and the economic order. Removing charitable jurisdiction from the IRS would blind the IRS to dollars placed in charitable solution increasing tax and political shelters and wealthy dominance of charities as civil society. A new agency without understanding of, or jurisdiction over, tax cannot act …

The Federal Question Jurisdiction Under Article Iii: “First In The Minds Of The Framers,” But Today, Perhaps, Falling Short Of The Framers’ Expectations, Arthur D. Hellman

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As Chief Justice Marshall explained, “the primary motive” for creating a “judicial department” for the new national government was “the desire of having a [national] tribunal for the decision of all national questions.” Thus, although Article III of the Constitution lists nine kinds of “Cases” and “Controversies” to which the “judicial Power” of the United States “shall extend,” “the objects which stood first in the minds of the framers” were the cases “arising under” the Constitution, laws, and treaties of the United States. Today we refer to this as the federal question jurisdiction.

Of all federal question cases, the Framers …

Judicial Federalization Doctrine, Gerald S. Dickinson

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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

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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 Theory Of Federalization Doctrine, Gerald S. Dickinson

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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 …

A More Capacious Concept Of Church, Philip Hackney, Samuel D. Brunson

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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

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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 …

Liberalism Triumphant? Ideology And The En Banc Process In The Ninth Circuit Court Of Appeals, Arthur D. Hellman

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There are two things that everyone knows about the Ninth Circuit Court of Appeals: it is very large, and it is very liberal. But common knowledge is sometimes wrong. Is that the case here?

About the first point – the Ninth Circuit’s size – there can be no dispute. The Ninth Circuit Court of Appeals has 29 authorized judgeships, almost twice as many as the second-largest court. But what about the second point – the liberalism? Knowledgeable commentators, including Professor (now Dean) Erwin Chemerinsky, have disputed the characterization, calling it a “myth.”

Until now, no one has empirically tested whether …

Nazi Stolen Art: Uses And Misuses Of The Foreign Sovereign Immunities Act, Vivian Grosswald Curran

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U.S. courts in Foreign Sovereign Immunities Act (“FSIA”) cases must interpret a comprehensive statute which has been said to stand or fall on its terms. At the same time, in Nazi-looted art cases, they do not ignore entirely the backdrop of the U.S.’ adoption of international principles and declarations promising to ensure the return of such art. To some extent, such an undertaking has been incorporated into a statutory amendment of the FSIA. The years 2021 and 2022 have seen major developments in the FSIA both at the U.S. Supreme Court and in the D.C. Circuit Court of Appeals in …

Calls For Change: Seeing Cancel Culture From A Multi-Level Perspective, Tomar Pierson-Brown

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Transition Design offers a framework and employs an array of tools to engage with complexity. “Cancel culture” is a complex phenomenon that presents an opportunity for administrators in higher education to draw from the Transition Design approach in framing and responding to this trend. Faculty accused of or caught using racist, sexist, or homophobic speech are increasingly met with calls to lose their positions, titles, or other professional opportunities. Such calls for cancellation arise from discreet social networks organized around an identified lack of accountability for social transgressions carried out in the professional school environment. Much of the existing discourse …

Changing Every Wrong Door Into The Right One: Reforming Legal Services Intake To Empower Clients, Jabeen Adawi

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It’s recognized that people affected by poverty often have numerous overlapping legal needs and despite the proliferation of legal services, they are unable to receive full assistance. When a person is faced with a legal emergency, rarely is there an equivalent to a hospital’s emergency room wherein they receive an immediate diagnosis for their needs and subsequent assistance. In this paper, I focus on the process a person goes through to find assistance and argue that it is a burdensome, and demoralizing task of navigating varying protocols, procedures, and individuals. While these systems are well intentioned from the lawyer’s perspective, …

Domestic Courts And The Generation Of Norms In International Law, Charles T. Kotoby Jr.

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International law in the form of treaty and custom is primarily shaped by national executives and legislatures. To be sure, “judicial decisions” are deemed a “subsidiary means for the determination of [international] law,” but that still does not give domestic courts an everyday role in the generation of universal norms and international law. This article proposes a more dynamic reality which elevates the importance of municipal courts in the generation and creation of international law. The truth is that domestic courts interact regularly to announce and create important universal norms—by, for instance, adjudicating expropriation claims, passing on the recognition and …

Political Justice And Tax Policy: The Social Welfare Organization Case, Philip Hackney

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In addition to valuing whether a tax policy is equitable, efficient, and administrable, I argue we should ask if a tax policy is politically just. Others have made a similar case for valuing political justice as democracy in implementing just tax policy. I join that call and highlight why it matters in one arena – tax exemption. I argue that politically just tax policy does the least harm to the democratic functioning of our government and may ideally enhance it. I argue that our right to an equal voice in collective decision making is the most fundamental value of political …

Comparative Method And International Litigation 2020, Ronald A. Brand

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In this article, resulting from a presentation at the 2019 Annual Meeting of the American Society of Comparative Law, I apply comparative method to international litigation. I do so from the perspective of a U.S.-trained lawyer who has been involved for over 25 years in the negotiations that produced both the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. The law of jurisdiction and judgments recognition is probably most often taught in a litigation context. Nonetheless, that law has as much or more …

A History Of The Law Of Assisted Dying In The United States, Alan Meisel

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The slow growth in the number of states that have enacted legislation to permit what is often referred to as “death with dignity” legislation—and more frequently referred to popularly as “physician assisted suicide” laws—has begun to accelerate in the past few years since the enactment of the first such statute in Oregon in 1994.

Like much other social reform legislation, there is a long history behind it. In this case, the history in the United States dates back at least to the latter part of the nineteenth century. Not until the 1980s, however, did these efforts gain any traction in …

Intratextual And Intradoctrinal Dimensions Of The Constitutional Home, Gerald S. Dickinson

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The home has been lifted to a special pantheon of rights and protections in American constitutional law. Until recently, a conception of special protections for the home in the Fifth Amendment Takings Clause was under-addressed by scholars. However, a contemporary and robust academic treatment of a home-centric takings doctrine merits a different approach to construction and interpretation: the intratextual and intradoctrinal implications of a coherent set of homebound protections across the Bill of Rights, including the Takings Clause.

Intratextualism and intradoctrinalism are interpretive methods of juxtaposing non-adjoining and adjoining clauses in the Constitution and Supreme Court doctrines to find patterns …

Racial Profiling: Past, Present, And Future, David A. Harris

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It has been more than two decades since the introduction of the first bill in Congress that addressed racial profiling in 1997. Between then and now, Congress never passed legislation on the topic, but more than half the states passed laws and many police departments put anti-profiling policies in place to combat it. The research and data on racial profiling has grown markedly over the last twenty-plus years. We know that the practice is real (contrary to many denials), and the data reveal racial profiling’s shortcomings and great social costs. Nevertheless, racial profiling persists. While it took root most prominently …

Opioids And Converging Interests, Mary Crossley

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Written as part of Seton Hall Law Review’s Symposium on “Race and the Opioid Crisis: History and Lessons,” this Essay considers whether applying the lens of Professor Derrick Bell’s interest convergence theory to the opioid crisis offers some hope of advancing racial justice. After describing Bell’s interest convergence thesis and identifying racial justice interests that African Americans have related to the opioid crisis, I consider whether these interests might converge with white interests to produce real racial progress. Taken at face value, white politicians’ statements of compassion toward opioid users might signal a public health-oriented approach to addiction, representing …

Everything Old Is New Again: Does The '.Sucks' Gtld Change The Regulatory Paradigm In North America?, Jacqueline D. Lipton

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In 2012, the Internet Corporation for Assigned Names and Numbers (“ICANN”) took the unprecedented step of opening up the generic Top Level Domain (“gTLD”) space for entities who wanted to run registries for any new alphanumeric string “to the right of the dot” in a domain name. After a number of years of vetting applications, the first round of new gTLDs was released in 2013, and those gTLDs began to come online shortly thereafter. One of the more contentious of these gTLDs was “.sucks” which came online in 2015. The original application for the “.sucks” registry was somewhat contentious with …

An Unfinished Dialogue: Congress, The Judiciary, And The Rules For Federal Judicial Misconduct Proceedings, Arthur D. Hellman

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Federal judges can be impeached and removed from office for “high crimes and misdemeanors,” but what can be done to investigate and remedy less serious misconduct? Congress gave its answer 40 years ago when it passed the Judicial Conduct and Disability Act of 1980. The Act emerged from a series of complex interactions between Congress and the judiciary that could hardly be replicated today. Initially there was strong support, particularly in the Senate, for a centralized, “strictly adjudicatory” system, including a provision for removal of judges without impeachment. Over the course of several years, however, the judiciary persuaded Congress to …

Doctrinal Reasoning As A Disruptive Practice, Jessie Allen

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Legal doctrine is generally thought to contribute to legal decision making only to the extent it determines substantive results. Yet in many cases, the available authorities are indeterminate. I propose a different model for how doctrinal reasoning might contribute to judicial decisions. Drawing on performance theory and psychological studies of readers, I argue that judges’ engagement with formal legal doctrine might have self-disrupting effects like those performers experience when they adopt uncharacteristic behaviors. Such disruptive effects would not explain how judges ultimately select, or should select, legal results. But they might help legal decision makers to set aside subjective biases.

Bundling Justice: Medicaid's Support For Housing, Mary Crossley

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Achieving safe and stable housing presents a profound and ongoing challenge for many people living in poverty. The challenges include housing that is substandard or unaffordable and continuing risks of eviction. For a growing number, these challenges prove too much, and they become homeless. In addition, housing-related challenges that are part of daily life for many poor people can influence their physical and mental health. Increased attention to the health impacts of inadequate, insecure, and unaffordable housing has prompted some – including public health experts, physicians, and sociologists studying housing – to urge that housing issues, and homelessness in particular, …

Essay: Cooperative Federalism And Federal Takings After The Trump Administration's Border Wall Executive Order, Gerald S. Dickinson

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The Trump Administration’s (arguably) most polemic immigration policy — Executive Order No. 13,767 mandating the construction of an international border wall along the southwest border of the United States — offers a timely and instructive opportunity to revisit the elusive question of the federal eminent domain power and the historical practice of cooperative federalism. From federal efforts to restrict admission and entry of foreign nationals and aliens (the so-called “travel ban”) to conditioning federal grants on sanctuary city compliance with federal immigration enforcement, state and local governments (mostly liberal and Democratic enclaves) today have become combative by resisting a federal …

Inclusionary Takings Legislation, Gerald S. Dickinson

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This Article proposes an alternative post-Kelo legislative reform effort called “inclusionary takings.” Like inclusionary zoning legislation, inclusionary takings legislation would trigger remedial affordable housing action to mitigate the phenomenon of exclusionary condemnations in dense urban areas and declining suburban localities. An inclusionary takings statute would also mandate that local municipalities and private developers provide affordable housing in new developments benefiting from eminent domain takings. Such a statute may ameliorate the phenomenon of exclusionary condemnations in dense urban areas that displaces low-income families from urban neighborhoods. An inclusionary taking, like inclusionary zoning, in other words, requires affordable housing contributions from developers …

Class As Caste: The Thirteenth Amendment’S Applicability To Class-Based Subordination, William M. Carter Jr.

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As part of a symposium marking the sesquicentennial of the Thirteenth Amendment, this Article briefly explores whether the Thirteenth Amendment applies to class-based subordination. While recognizing that the increasingly rigid class-based stratification of our society, rampant discrimination against the poor, increasing income inequality, and the concentration of enormous wealth in the hands of so few are all pressing social challenges that the legal system must address, this Article concludes that generalized class-based discrimination likely would not fall within the scope of the “badges and incidents of slavery” that the Amendment prohibits.

This Article argues, however, that the Thirteenth Amendment's prohibition …

Antecedent Law And Ethics Of Aid In Dying, Alan Meisel

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Scholarly discussion of physician aid in dying – physicians actively aiding patients in ending their lives – has noticeably increased in recent years. While conversations and examinations of end-of-life treatment have been ongoing for decades, the antecedent law and ethics of aid in dying that have developed in the United States have recently moved into the spotlight. In this essay, written for a symposium at Quinnipiac School of Law, the author takes his audience on a brief journey through the history of end-of-life decision-making in the U.S., beginning with the early days of the Karen Quinlan case in 1976 and …

Afterword: Kindling The Programmatic Production Of Critical And Outsider Legal Scholarship, 1996-2016, Sarudzayi M. Matambanadzo, Francisco Valdes, Sheila I, Velez Martinez

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This afterword to a conference-based symposium represents not only an inter-generational reflection on LatCrit theory @ XX, but also an aspirational reminder of our foundational propositions and values as we look and venture ahead. Beginning with an introduction to the foundational theoretical principles of LatCrit knowledge production - as embodied principally by LatCrit values and the related functions, guidelines, and postulates - we discuss in detail and depth how these theoretical principles underpin the various projects in the LatCrit "portfolio" and provide a historical sketch of the development of these projects as programmatic knowledge production. In particular, we aim …

Comments On Proposed Treasury Regulations Defining Terms Relating To Marital Status, Anthony C. Infanti, The American Bar Association

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These comments respond to proposed Treasury Regulations defining terms relating to marital status in the Internal Revenue Code following the Supreme Court's decision in the Windsor and Obergefell cases. The comments applaud the Internal Revenue Service for reading gendered terms relating to marital status in a gender-neutral fashion. For a number of reasons, however, the comments recommend that the final regulations omit the proposed rule for determining an individual’s marital status and, in its place, codify the current deference to local law in determining marital status for federal tax purposes. Most importantly, the comments further recommend that the final regulations …

Declining Controversial Cases: How Marriage Equality Changed The Paradigm, Elena Baylis

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Until recently, state attorneys general defended their states’ laws as a matter of course. However, one attorney general’s decision not to defend his state’s law in a prominent marriage equality case sparked a cascade of attorney general declinations in other marriage equality cases. Declinations have also increased across a range of states and with respect to several other contentious subjects, including abortion and gun control. This Essay evaluates the causes and implications of this recent trend of state attorneys general abstaining from defending controversial laws on the grounds that those laws are unconstitutional, focusing on the marriage equality cases as …

Sonic Jihad — Muslim Hip Hop In The Age Of Mass Incarceration, Spearit

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This essay examines hip hop music as a form of legal criticism. It focuses on the music as critical resistance and “new terrain” for understanding the law, and more specifically, focuses on what prisons mean to Muslim hip hop artists. Losing friends, family, and loved ones to the proverbial belly of the beast has inspired criticism of criminal justice from the earliest days of hip hop culture. In the music, prisons are known by a host of names like “pen,” “bing,” and “clink,” terms that are invoked throughout the lyrics. The most extreme expressions offer violent fantasies of revolution and …