Supreme Court News Article
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Louis J. Virelli and Richard W. Murphy, Supreme Court News, 46 Administrative & Regulatory Law News 35 (2021)Clicking on the button will copy the full recommended citation.
Articles
Cybersecurity Policy and Standards for Offworld Operations Article
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Roy Balleste and Gilles Doucet, Cybersecurity Policy and Standards for Offworld Operations, 42 NATO Gazette 129 (2021)Clicking on the button will copy the full recommended citation.
Indigenous Perspectives on Corporate Governance Article
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Grant Christensen, Indigenous Perspectives on Corporate Governance, 23 U. Pa. J. Bus. L. 902 (2021)Clicking on the button will copy the full recommended citation.
The foundation of the modern corporation is built upon the separation of labor and capital. These entities were anathema to most Indigenous peoples when the Virginia Company was chartered in 1606 for the purpose of settling American lands. Over centuries of colonization federal law worked to assimilate Native Americans. Tribes were encouraged, even forced, to create their own corporate entities. Indelibly, consistent with their inherent sovereignty, Indigenous groups fused autochthonous legal principles into these corporate structures. Today, in the shadow of the #BLM movement and societal demands that corporations become more responsive to their communities and to the environment, shareholder primacy has reached its nadir. As corporate governance seeks to replace it with something stakeholder centered autochthonous principles gleaned from Indigenous corporations offer a way forward. These proposed reforms are as varied as the chthonic law they are built upon and range from making nature itself a corporate shareholder to issuing shares that gain voting rights only after they have been held to maturity.
2020
The Functional Threshold: Direct International Legal Regulation of Collective Nonstate Entities and the Law of International Peace and Security Article
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Klara Van der Ploeg, The Functional Threshold: Direct International Legal Regulation of Collective Nonstate Entities and the Law of International Peace and Security, 53 N.Y.U. J. Int'l L. & Pol. 71 (2020)Clicking on the button will copy the full recommended citation.
This article explores transformations in international law with respect to collective nonstate entities, challenging the mainstream view that international law stipulates rights and obligations directly binding on such entities only on an exceptional basis. Through the example of the U.N. Charter’s regime for international peace and security, this article demonstrates the normative change within international law to directly address rights and obligations to collective nonstate entities, without the interposition of any state. The article argues that the normative inclusion of collective nonstate entities within binding international law may be conceptualized and explained as involving the operation of a “functional threshold.” Specifically, only the functionally critical collective nonstate entities, i.e., entities perceived as indispensable for the performance of the legal regime’s function, have acquired direct rights and obligations under international law.
Rejecting Instrumentalism: Medical Deductions for Family Formation Denied Article
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Joseph F. Morrissey, Rejecting Instrumentalism: Medical Deductions for Family Formation Denied, 23 University of Iowa Journal of Gender, Race & Justice 365 (2020)Clicking on the button will copy the full recommended citation.
In August of 2017, my lawyer presented our oral arguments to the Eleventh Circuit Federal Court of Appeals in Montgomery, Alabama, in my case against the Internal Revenue Service (IRS). The case involved the denial by the IRS of my family's tax deduction for medical expenses related to in vitro fertilization (IVF) and surrogacy.
I am part of a same-sex couple, and the IRS has allowed medical expenses related to family formation for opposite-sex couples. Our treatment by the IRS seemed wrong under the statute, unfair generally, and even unconstitutional.
The govemment believed it had a strong case-that our medical expenses were not necessary, as they argued the relevant statute commands. The IRS official auditing our tax return was clear. Our decision to build a family as two gay men was merely our "choice," he explained unabashedly, and all related expenses would not be subsidized by the United States government through the medical deduction provision.
This Article is a reflection on my experience. It will discuss my case: the facts, the law, and our arguments. It will describe our experience at the Eleventh Circuit in more detail and the way we were actually lampooned by Judge Newsom, a recent Trump appointee to the Eleventh Circuit.
The treatment of my case by the Eleventh Circuit represents a type of judicial decision-making that I label teleological instrumentalism. That technique refers to judges using decision-making techniques instrumentally to achieve the goal they think is appropriate as the outcome of any given case.
Teleological instrumentalism builds on legal realism to acknowledge that human beings are inherently biased and bring that bias to every decision they make. Where jurists might claim to be relying on appropriate neutral decision-making techniques and frameworks, they are often merely justifying the outcome that they prefer in the dispute under consideration.
This Article will ultimately reflect on the teleological instrumentalist approach of the judges in reaching their decision to deny relief in my case. Finally, I will conclude with a call for federal judges to resist the inclination to follow their biases, implicit or otherwise, reject teleological instrumentalism, and embrace a principled, neutral approach to decision-making based on statutory and constitutional language, intent, context, and precedent.
Responding to the Legal Needs of Parents with Psychiatric Disabilities: Insights from Parent Interviews Article
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Robyn Powell et al., Responding to the Legal Needs of Parents with Psychiatric Disabilities: Insights from Parent Interviews, 38 Law & Ineq. 69 (2020)Clicking on the button will copy the full recommended citation.
A growing body of scholarship demonstrates that parents with psychiatric disabilities and their families experience a range of inequalities that families with nondisabled parents do not suffer. Parents with psychiatric disabilities contend with pervasive discrimination within the child welfare and family law systems, often resulting in the removal of their children and loss of custody. Moreover, some children of parents with psychiatric disabilities experience worse outcomes than their peers, while others do not. Yet, despite extensive legal and social science scholarship focused on parents with psychiatric disabilities and their families, no studies have empirically examined the legal needs of parents with psychiatric disabilities as perceived by parents themselves.
This Article responds to the scholarly void and offers new and much-needed data on the real world-experiences of these parents. This study draws qualitative data from in-depth interviews with twelve former clients of a legal services program in Massachusetts that provides representation to parents with psychiatric disabilities. First, this study shows that the legal profession lacks understanding of mental health, which some parents believe negatively affects representation and case outcomes. Second, attorneys may need to provide parents with psychiatric disabilities assistance beyond litigation, including taking more time to explain the legal process, assisting with administrative tasks, and coordination with and referrals to other supports and services. Third, our data suggest that parents with psychiatric disabilities may have ongoing legal needs that require access to additional legal services beyond those related to the child welfare and family law systems. This Article concludes by identifying critical areas for further research and discussing the policy implications of the findings.
State Estate Taxes and the Due Process Clause Article
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Walter Hellerstein and Andrew D. Appleby, State Estate Taxes and the Due Process Clause, 98 Tax Notes State 771 (2020)Clicking on the button will copy the full recommended citation.
After two decades of relative dormancy, we are witnessing a resurgence in state estate tax controversies. Federal estate tax amendments beginning in 2001, which eliminated the federal credit for state estate taxes, greatly diminished the general significance of state estate taxes, as most states repealed their preexisting “pickup” or “sponge” taxes designed to absorb the maximum federal estate tax credit.
Recently, however, five state courts have addressed the due process clause implications of state estate taxes. Each court considered the question of whether the due process clause permitted the state to impose estate tax on qualified terminable interest property. The U.S. Supreme Court has thus far declined to consider this question, having denied petitions for certiorari from two of the state court decisions that raised it. In 2019, however, the Court did address a related state trust tax issue in Kaestner, which informs the QTIP due process analysis.
Towards a Universal Declaration of the Rights of Wetlands Article
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G. T. Davies et al., Towards a Universal Declaration of the Rights of Wetlands, 72 Marine & Freshwater Research 593 (2020)Clicking on the button will copy the full recommended citation.
The rights of Nature, a concept recognised by several courts, legislatures and international governance institutions, is being promoted by some non-governmental organisations, scientists, attorneys, Indigenous peoples, local communities, and others. In this article we propose a Universal Declaration of the Rights of Wetlands, consistent with the 1982 World Charter for Nature. Recognition of these rights supports the provision of ecosystem services essential to human well-being and to other life on Earth. Further, such rights could reinforce efforts to reduce wetland loss and deterioration, thereby slowing climate destabilisation and biodiversity declines. Because world scientists have warned that biodiversity loss, ecosystem degradation and climate destabilisation, which intensify wetland loss, constitute global emergencies, new approaches are required to ensure that wetlands are protected and their benefits to people sustained. The proposed Universal Declaration of the Rights of Wetlands states that wetlands possess rights to: exist; their ecologically determined location in the landscape; natural, connected and sustainable hydrological regimes; ecologically sustainable climatic conditions; naturally occurring biodiversity; regeneration and restoration; integrity of structure, function and evolutionary processes; fulfil natural ecological roles in the Earth’s processes; and be free from pollution and degradation. Recognition of these rights is seen as an essential step in efforts to stop wetland loss and deterioration.
Carpenter v. United States: Did Being Gay Matter? Article
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Ellen S. Podgor, Carpenter v. United States: Did Being Gay Matter?, 15 Tennessee J.L. & Pol'y 116 (2020)Clicking on the button will copy the full recommended citation.
Carpenter v. United States (1987) is a case commonly referenced in corporations, securities, and white collar crime classes. But the story behind the trading of pre-publication information from the "Heard on the Street" columns of the Wall Street Journal may be a story that has not been previously told. This Essay looks at the Carpenter case from a different perspective - gay men being prosecuted at a time when gay relationships were often closeted because of discriminatory policies and practices. This Essay asks the question of whether being gay mattered to this prosecution.
Rethinking National Injunctions Article
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Marco Jimenez, Rethinking National Injunctions, 2020 Jotwell: The Journal of Things We Like 1 (2020)Clicking on the button will copy the full recommended citation.