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 …

The New Laboratories Of Democracy, Gerald S. Dickinson

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Nearly a century ago, Justice Louis D. Brandeis’s dissent in New State Ice Co. v. Liebman coined one of the most profound statements in American law: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Justice Brandeis reminded us of our strong tradition of federalism, where the states, exercising their sovereign power, may choose to experiment with new legislation within their separate jurisdictions without the concern that such …

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 …

Affirmatively Furthering Health Equity, Mary Crossley

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Pervasive health disparities in the United States undermine both public health and social cohesion. Because of the enormity of the health care sector, government action, standing alone, is limited in its power to remedy health disparities. This Article proposes a novel approach to distributing responsibility for promoting health equity broadly among public and private actors in the health care sector. Specifically, it recommends that the Department of Health and Human Services issue guidance articulating an obligation on the part of all recipients of federal health care funding to act affirmatively to advance health equity. The Fair Housing Act’s requirement that …

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 …

Color Of Creatorship - Author's Response, Anjali Vats

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This essay is the author's response to three reviews of The Color of Creatorship written by notable intellectual property scholars and published in the IP Law Book Review.

A Hague Parallel Proceedings Convention: Architecture And Features, Paul Herrup, Ronald A. Brand

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In Paul Herrup and Ronald A. Brand, A Hague Convention on Parallel Proceedings, 63 Harvard International Law Journal Online 1(2022), available at https://harvardilj.org/2022/02/a-hague-convention-on-parallel-proceedings/ and https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3894502, we argued that the Hague Conference on Private International Law should not undertake a project to require or prohibit exercise of original jurisdiction in national courts. Rather, the goal of current efforts should be to improve the concentration of parallel litigation in a “better forum,” in order to achieve efficient and complete resolution of disputes in transnational litigation. The Hague Conference is now taking this path. As the Experts Group and Working Group …

Participatory Litigation: A New Framework For Impact Lawyering, Jules Lobel

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This Article argues that the manner in which class-action and impact lawyers have traditionally litigated leaves little room for class participation in lawsuits, and that a new, participatory framework can and should be adopted. Through the story of a successful class-action suit challenging California’s use of prolonged solitary confinement in its prisons, the Article demonstrates that plaintiff participation is both possible and important.

Academic literature has assumed that broad plaintiff participation in class-action and impact litigation is not achievable. Yet this Article describes how, in a key California case, attorneys actively involved the plaintiffs in all aspects of the litigation: …

Reframing Hate, Lu-In Wang

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The concept and naming of “hate crime,” and the adoption of special laws to address it, provoked controversy and raised fundamental questions when they were introduced in the 1980s. In the decades since, neither hate crime itself nor those hotly debated questions have abated. To the contrary, hate crime has increased in recent years—although the prominent target groups have shifted over time—and the debate over hate crime laws has reignited as well. The still-open questions range from the philosophical to the doctrinal to the pragmatic: What justifies the enhanced punishment that hate crime laws impose based on the perpetrator’s motivation? …

White Vigilantism And The Racism Of Race-Neutrality, Christian Sundquist

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Race-neutrality has long been touted in American law as central to promoting racial equality while guarding against race-based discrimination. And yet the legal doctrine of race-neutrality has perversely operated to shield claims of racial discrimination from judicial review while protecting discriminators from liability and punishment. This Article critiques the doctrine of race-neutrality by examining the law’s response to white vigilantism in the much-publicized criminal trials of Kyle Rittenhouse and that of Ahmaud Arbery’s assailants.

White Supremacy, Police Brutality, And Family Separation: Preventing Crimes Against Humanity Within The United States, Elena Baylis

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Although the United States tends to treat crimes against humanity as a danger that exists only in authoritarian or war-torn states, in fact, there is a real risk of crimes against humanity occurring within the United States, as illustrated by events such as systemic police brutality against Black Americans, the federal government’s family separation policy that took thousands of immigrant children from their parents at the southern border, and the dramatic escalation of White supremacist and extremist violence culminating in the January 6, 2021 attack on the U.S. Capitol. In spite of this risk, the United States does not have …

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 …

Reviving Liberal Constitutionalism With Originalism In Emergency Powers Doctrine, Gerald S. Dickinson

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Recent scholarship suggests the executive power is, at its core, merely the power to “carry out projects defined by a prior exercise of the legislative power” and to implement “substantive legal requirements and authorities that were created somewhere else.” Few, if any, scholars, however, have drawn a link between the original understanding of the Executive Power Clause and its relationship to emergency powers doctrine under the theory of liberal constitutionalism. This Essay addresses this gap in the scholarship, and offers musings about the doctrinal and political implications of an originalist reading of the Executive Power Clause in relation to crisis …

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Critical Tax Theory: Insights From The Us And Opportunities For All, Anthony C. Infanti, Bridget J. Crawford

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At a moment when Australia -- and the world -- finds itself at a "critical juncture" as it reckons with a global pandemic as well as the inequalities that COVID-19 has laid bare, voicing -- and listening to -- critical tax perspectives has become more vital than ever. The economic impact of COVID-19 has precipitated talk of tax reform as nations consider how to pay for aid distributed during the pandemic and how to restart their economies. But more than just a time of crisis, the pandemic can be seen as an unexpected opportunity to break with a past plagued …

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 …

The Racial Politics Of Fair Use Fetishism, Anjali Vats

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This short essay argues that the sometimes fetishistic desire on the part of progressive intellectual property scholars to defend fair use is at odds with racial justice. Through a rereading of landmark fair use cases using tools drawing from Critical Race Intellectual Property (“CRTIP”), it contends that scholars, lawyers, judges, practitioners, and activists would be well served by focusing on how fair use remains grounded in whiteness as (intellectual) property. It argues for doing so by rethinking the purpose of the Copyright Act of 1976 to be inclusive of Black, Brown, and Indigenous authors.

Dark Money Darker? Irs Shutters Collection Of Donor Data, Philip Hackney

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The IRS ended a long-time practice of requiring most nonprofits to disclose substantial donor names and addresses on the nonprofit annual tax return. It is largely seen as a battle over campaign finance rather than tax enforcement. Two of the nonprofits involved, social welfare organizations and business leagues, are referred to as “dark money” organizations because they allow individuals to influence elections while maintaining donor anonymity. Many in the campaign finance community are concerned that this change means wealthy donors can avoid campaign finance laws and have no reason to fear being discovered. In this Article, I focus on whether …

Prisons, Nursing Homes, And Medicaid: A Covid-19 Case Study In Health Injustice, Mary Crossley

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The unevenly distributed pain and suffering from the COVID-19 pandemic present a remarkable case study. Considering why the coronavirus has devastated some groups more than others offers a concrete example of abstract concepts like “structural discrimination” and “institutional racism,” an example measured in lives lost, families shattered, and unremitting anxiety. This essay highlights the experiences of Black people and disabled people, and how societal choices have caused them to experience the brunt of the pandemic. It focuses on prisons and nursing homes—institutions that emerged as COVID-19 hotspots –and on the Medicaid program.

Black and disabled people are disproportionately represented in …

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 …

The 1969 Tax Reform Act And Charities: Fifty Years Later, Philip Hackney

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Fifty years ago, Congress enacted the Tax Reform Act of 1969 to regulate charitable activity of the rich. Congress constricted the influence of the wealthy on private foundations and hindered the abuse of dollars put into charitable solution through income tax rules. Concerned that the likes of the Mellons, the Rockefellers, and the Fords were putting substantial wealth into foundations for huge tax breaks while continuing to control those funds for their own private ends, Congress revamped the tax rules to force charitable foundations created and controlled by the wealthy to pay out charitable dollars annually and avoid self-dealing. Today, …

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 …

The Supreme Court’S Two Constitutions: A First Look At The “Reverse Polarity” Cases, Arthur D. Hellman

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In the traditional approach to ideological classification, “liberal” judicial decisions are those that support civil liberties claims; “conservative” decisions are those that reject them. That view – particularly associated with the Warren Court era – is reflected in numerous academic writings and even an article by a prominent liberal judge. Today, however, there is mounting evidence that the traditional assumptions about the liberal-conservative divide are incorrect or at best incomplete. In at least some areas of constitutional law, the traditional characterizations have been reversed. Across a wide variety of constitutional issues, support for claims under the Bill of Rights or …

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 …

The Critical Tax Project, Feminist Theory, And Rewriting Judicial Opinions, Anthony C. Infanti, Bridget J. Crawford

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In this essay, the authors discuss the intellectual foundations for their co-edited book, Feminist Judgments: Rewritten Tax Opinions (2017), the first in a series of subject-matter specific volumes published in the U.S. Feminist Judgments Series by Cambridge University Press. Using only the facts and precedents in existence at the time of the original opinion, the contributors to this and other feminist judgments projects around the globe seek to show how application of feminist perspectives could impact, or even change, the holding or reasoning of judicial decisions. Underlying Feminist Judgments: Rewritten Tax Opinions is the belief that the study of taxation …

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.

Property Musings At The U.S.-Mexico Border, Gerald S. Dickinson

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President Donald J. Trump issued an Executive Order calling for “a physical wall on the southern border” of the United States in January, 2017. In his address before Congress, the President stated, “[W]e will soon begin the construction of a great wall along our southern border.” The political response to the Executive Order has been swift. Representative Lamar Smith of Texas views the Executive Order as a testament to the President “honoring his commitment” to immigration enforcement. Senator Ron Johnson of Wisconsin favorably compares the border mandates in Israel and Egypt as successful examples of how to mitigate illegal immigration. …