Rule of Law Commons^™

Comparative Judicial Enforcement, Rosa Hayes, Angela Hefti

Washington Law Review

Almost immediately upon his second inauguration, President Trump took several actions that subvert longstanding norms, contravene long-settled Supreme Court precedent, and disrespect the authority of the coordinate branches to check executive branch excess. The Administration’s actions pose both immediate and long-term challenges to the American constitutional order, with many scholars and citizens believing that the United States is in the midst of a constitutional crisis. At minimum, the Trump Administration’s actions have illuminated sticking points in both functionalist and formalist conceptions of the separation of powers. For this model of shared but distributed power to function, each branch must give …

From Winans To Wallahee: Treaties, The Washington State Supreme Court, And The Pursuit Of A More Just Rule Of Law, Monte Mills

Washington Law Review

The relationship between the United States federal government, the states, and Native Nations has long been at the core of federal Indian law. From the earliest decades of its jurisprudence, for example, the United States Supreme Court struggled in its efforts to analyze and define the rights, authorities, and interactions of Native Nations within and in relation to the evolving structure of constitutional federalism. Treaties between the United States and Native Nations were central to those decisions and provided a necessary, constitutional check against state interests intent on eliminating sovereign Native Nations. Those constitutional and structural implications thus go well …

Tax Incentives, The Tcja, And The Rise Of The Philanthropist Class, University Of Washington School Of Law

Rule of Law Initiative

Executive Summary:

The first Trump Administration’s 2017 Tax Cuts and Jobs Act (TCJA) fundamentally altered America's charitable giving landscape through a two-step approach: first by reducing tax incentives for middle-class donors, then by empowering ultra-wealthy philanthropists. These changes have shifted control of charitable giving from everyday Americans to a small “Philanthropist Class,” referring to ultra-high-net-worth individuals who contribute vast sums, often through foundations or donor-advised funds (DAFs). This shift in charitable power holds profound implications for democracy, equality, and nonprofit sustainability.

The TCJA nearly doubled the standard deduction while limiting itemized deductions, causing the percentage of middle-class households claiming charitable …

The Tax Exempt Innovation Cycle, University Of Washington School Of Law

Rule of Law Initiative

Executive Summary:

The U.S. innovation ecosystem thrives on a complex interrelationship between tax policy, philanthropic foundations, and entrepreneurial ventures. The tax code, particularly provisions related to private foundations and Program-Related Investments (PRIs), play a critical role in funding high-risk, high-impact innovations that address societal challenges. Wealth funds the foundation, the foundation funds innovation, and innovation enhances the founder’s lasting impact on society.

Key Findings:

1. Tax-Exempt Foundation Structure: Private foundations, established by wealthy individuals and corporations, serve as powerful vehicles for channeling substantial capital into innovation while providing tax benefits to donors.
2. The Innovation Funding Cycle: Private foundations and …

Reaganomics: History Repeats Itself, But Louder, University Of Washington School Of Law

Rule of Law Initiative

Executive Summary

Ronald Reagan’s presidency (1981–1989) dramatically reshaped the American economic and institutional landscape. He championed “supply-side” economics, dubbed “Reaganomics.” Through sweeping tax cuts, deregulation, and a reallocation of federal funding priorities, Reagan shifted the burden of public services, especially in education and research, from government to individuals and private markets. Public universities saw deep cuts in federal support and increasingly turned to industry partnerships and commercialization to survive. Simultaneously, Reagan expanded defense research funding, fostering a close relationship between the government and elite research institutions. Innovation policy was formalized through the Bayh-Dole Act and the creation of …

Tax Exempt Research Guide, University Of Washington School Of Law

Rule of Law Initiative

For over a hundred years, organizations have harnessed and relied on tax exempt status to serve the public. Tax exemption is a powerful tool for social, environmental, and community well-being. This Legal Research Guide on Tax Exemption serves as a navigational compass for the public seeking to learn about tax exemption.

Why The Rule Of Law Matters For Nonprofits, University Of Washington School Of Law

Rule of Law Initiative

The Rule of Law is what keeps tax exemption from being a political weapon and allows for nonprofit organizations to provide services the government is not providing our communities.

Rule Of Law – Public Q&A, University Of Washington School Of Law

Rule of Law Initiative

Below are common questions the public may have about the Rule of Law, tax exemption status, the revocation of tax exempt status, and key cases like Bob Jones University. To understand these in more detail, browse the Tax Exempt research guide (History, Rule of Law, Revoking Tax Exemption, Secondary Materials, and Current Awareness).

Bob Jones University And The Rule Of Law, University Of Washington School Of Law

Rule of Law Initiative

The Rule of Law is what keeps tax exemption from being a political weapon.

Bob Jones University shows the Rule of law in action: clear public policy, cross-branch consensus, balanced against constitutional rights, and enforced through transparent procedures and court review.

The case is influential because it lays the foundations for analyzing The Public Policy Doctrine, a key element when courts review tax exempt revocation cases.

The revocation of tax-exempt status is law-driven, not headline-driven; the Bob Jones University v. United States case set an important precedent by creating a narrow and cautious framework that the IRS must follow to …

A Brief History Of Tax Exemption, University Of Washington School Of Law

Rule of Law Initiative

Below is a condensed history of tax exemption. It contains an analysis of tax exemption before statutory codification in 1894. It explains how the law evolved to provide predictability and fairness in the application of an organization’s tax-exempt status.

How Does A Court Determine The Tax-Exempt Purposes Of An Organization?, University Of Washington School Of Law

Rule of Law Initiative

To determine the tax-exempt purposes of an organization, courts and tax authorities primarily examine whether the organization is both "organized" and "operated" exclusively for exempt purposes, as required under 26 U.S.C § 501.

This involves a two-part test: the "organizational test" and the "operational test." The organizational test assesses whether the organization's foundational documents, such as its charter or articles of incorporation, limit its purposes to one or more exempt purposes and do not authorize substantial non-exempt activities.

Law's Credibility Problem, Julia Simon-Kerr

Washington Law Review

Credibility determinations often seal people’s fates. They can determine outcomes at trial; they condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is no stable definition of credibility in the law. Courts and agencies diverge at the most basic definitional level in their use of the category.

Consider a real-world example. An immigration judge denies asylum despite the applicant’s plausible and unrefuted account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress enacted a “rebuttable presumption of credibility” for asylum-seekers “on appeal.” …

Textualism As Fair Notice?, Benjamin Minhao Chen

Washington Law Review

The opportunity to know the law is one of the bedrocks of legality. It is also a powerful and attractive reason for giving statutory language the meaning it has in everyday discourse. To do otherwise would be to hide the law from those it governs.

Or so the argument goes. Despite its intuitive force, the fair notice argument for textualism is vulnerable to two challenges. The first challenge is to the notion that fair notice requires congruence between ordinary and legal meaning. There is no normative gauge for determining the time and expense people ought to spend learning their legal …

Election Law And Election Subversion, Lisa Marshall Manheim

Articles

Scholars of American election law used to take the rule of law as a given. The legal system, while highly imperfect, appeared sturdy, steady, and functional. Recent election cycles—culminating in dramatic attempts at election subversion—have revealed this assumption beginning to break down. Without the rule of law as a dependable constant, the study of election law quickly expands. Legal experts now are simultaneously occupied with: first, the substance of election laws; second, the design of election institutions; and third, the threat of participants unlawfully undermining elections from within. This Essay identifies and contextualizes the rule-of-law pivot that is reflected in …

Revocation And Retribution, Jacob Schuman

Washington Law Review

Revocation of community supervision is a defining feature of American criminal law. Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and 1/3 eventually have their supervision revoked, sending 350,000 to prison each year. Academics, activists, and attorneys warn that “mass supervision” has become a powerful engine of mass incarceration.

This is the first Article to study theories of punishment in revocation of community supervision, focusing on the federal system of supervised release. Federal courts apply a primarily retributive theory of revocation, aiming to sanction defendants for their “breach of trust.” However, the structure, …

Talking Back In Court, M. Eve Hanan

Washington Law Review

People charged with crimes often speak directly to the judge presiding over their case. Yet, what can be seen in courtrooms across the U.S. is that defendants rarely “talk back” in court, meaning that they rarely challenge authority’s view of the law, the crime, the defendant, the court’s procedure, or the fairness of the proposed sentence.

With few exceptions, legal scholars have treated the occasions when defendants speak directly to the court as a problem to be solved by appointing more lawyers and better lawyers. While effective representation is crucial, this Article starts from the premise that defendants have important …

Benevolent Exclusion, Anna Offit

Washington Law Review

The American jury system holds the promise of bringing common sense ideas about justice to the enforcement of the law. But its democratizing effect cannot be realized if a segment of the population faces systematic exclusion based on income or wealth. The problem of unequal access to jury service based on socio-economic disparities is a longstanding yet under-studied problem—and one which the uneven fallout of the COVID-19 pandemic only exacerbated. Like race- and sex-based jury discrimination during the peremptory challenge phase of jury selection, the routine dismissal of citizens who face economic hardship excludes not only people but also the …

“Unconstitutional Beyond A Reasonable Doubt” – A Misleading Mantra That Should Be Gone For Good, Hugh Spitzer

Washington Law Review Online

For a century, Washington State Supreme Court opinions periodically have intoned that the body will not invalidate a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This odd declaration invokes an evidentiary standard of proof as a rule of decision for a legal question of constitutionality, and it confuses practitioners and the public alike. “Unconstitutional beyond a reasonable doubt” is not peculiar to Washington State. Indeed, it began appearing in state court decisions in the early nineteenth century and, rarely, in opinions of the United States Supreme Court. But the use of the phrase rapidly increased …

The New Black On The Development Catwalk: Incorporating Rule Of Law Into The Sustainable Development Goals, Per Bergling, Sophie Jin

Washington International Law Journal

As the post-2015 Development Agenda is set to replace the Millennium Development Goals (“MDGs”), one of the most controversial new elements of the new agenda is the rule of law. While all of the official fora for discussing and producing recommendations have concluded that the rule of law (or some variation) should be included, there are still significant challenges to its incorporation in the final Sustainable Development Goals (“SDGs”). The interrelated points of contention have included whether rule of law applies at the national government level, whether it encompasses domestic governance, and how the concept should be defined and measured. …

The Singapore Chill: Political Defamation And The Normalization Of A Statist Rule Of Law, Cameron Sim

Washington International Law Journal

Recent cases involving opposition politicians and foreign publications, in which allegations of corruption leveled against both the executive and the judiciary were found to be defamatory and in contempt of court, struck at the heart of Singapore’s ideological platform as a corruption-free meritocracy with an independent judiciary. This article examines the implications of these cases for the relationship between the courts, the government, and the rule of law in Singapore. It is argued that judicial normalization of the government’s politics of communitarian legalism has created a statist and procedural rule of law that encourages defamation laws to chill political opposition. …

What Is The Rule Of Law? Perspectives From Central Europoe And The American Academy, Louis E. Wolcher

Washington Law Review

The title of my talk is "What is the Rule of Law?"—and its subtitle is "Perspectives from Central Europe and the American Academy." I represent the "American Academy" part, and as I will make clear in a little while, the other part comes from my sustained engagement, over the past ten years, with legal theorists and political philosophers in the Republic of Slovenia. Slovenia, by the way, is a nation that was created twelve years ago as the northernmost of those "breakaway" republics of the former Yugoslavia.

Martial Lawlessness: The Legal Aftermath Of Kwangju, James M. West

Washington International Law Journal

On August 26, 1996, two former presidents of the Republic of Korea, Chun Doo-Hwan and Roh Tae-Woo, were convicted of insurrection, treason, and corruption. The charges arose out of their December 1979 coup and the ruthlessly violent suppression of a democratic protest in the city of Kwangju in May 1980. This article recounts the origins and analyzes the progress of this dramatic criminal trial, which has attracted worldwide attention. The current South Korean head of state, President Kim Young-Sam, has depicted the conviction of his predecessors as a historic juncture opening a new era of constitutionalism for Korea. Despite the …

Is The Rule Of Law Possible In A Postmodern World?, Francis J. Mootz Iii

Washington Law Review

The Rule of Law is the core of our political and legal ideology, but the Rule of Law increasingly is attacked as an unattainable goal. Postmoder theorists challenge whether it makes sense to believe that rules can be formulated for general application and then later neutrally applied by decision makers. Postmodern theorists reject the nlightenment world view and its political corollary, classical liberalism. The author agrees with the spirit of the postmoder critique, but argues that we can understand the Rule of Law in a manner consonant with postmodern thought. Drawing on the Continental tradition of hermeneutics, or the philosophy …

The Rule Of Law In World Affairs, William O. Douglas

Washington Law Review

No abstract provided.