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When Life Takes Your Lemons: Resolving the Legislative Prayer Debate in School Board Settings in Light of Kennedy v. Bremerton School District
Full text linkThe COVID-19 pandemic fanned the flames of a fire that had been slowly but steadily burning since 2016, arming the loudest warriors of America’s endless culture war with a slew of new divisive issues. Virtually overnight, parental rights groups began capitalizing on the frustration in their communities in order to spur political change, training their ire toward public schools. What began as a crusade against mask mandates and vaccines manifested into a well-funded effort by ultraconservative groups to undermine the public education system as a whole. Against this backdrop, the legislative prayer exception—which was meant to sanction the practice of opening sessions of legislative and other deliberative public bodies with prayer as a part of our nation’s history and tradition and thus compatible with the Establishment Clause—now sows more division than unity. This doctrine rests on the premise that invoking religion in this context is not “establishment,” but rather a means of lending gravity to the occasion or a “tolerable acknowledgment” of widely held beliefs. Despite detailed accounts of the history and tradition of prayer in this nation, none of the Court’s precedents have dictated any specific test or limit for legislative prayer beyond compatibility with historical practice, leaving open the question of how far the exception extends and in what contexts. A question that remains unresolved is whether a school board should be considered a legislature within the meaning of this exception or a school-sanctioned event, where prayer is generally prohibited. The issue has been further complicated the Court’s pronouncement in Kennedy v. Bremerton School District in 2022 that none of the Court’s formal tests—the Lemon test, the Endorsement test or the Coercion test—are applicable when evaluating an Establishment Clause challenge, as the clause must only be interpreted by reference to history and tradition—thus upending the current debate. In light of this abrogation, all government sanctioned prayer will effectively be treated like legislative prayers and therefore likely accepted, including in schools. This note will advocate for a new approach that can distinguish between “tolerable acknowledgement of beliefs widely held” and the kind of religious indoctrination that the current zealotry surrounding school boards is trending toward. This proposed test first examines (1) if a meeting’s purpose includes judicial or executive functions or only legislative tasks; (2) the presence of students at the meeting and the purpose of their attendance; (3) the degree of control the board holds over the prayer; and (4) any overriding history or tradition. It then determines whether the practice of prayer is coercive. In order to meaningfully protect the secularization of public schools, this test seeks to account for the concerns that arise when children are implicated in an Establishment Clause challenge, while acknowledging history and tradition, as Kennedy now mandates
Thai Drug Offenses and Narcotic Charges: Tracing Thailand’s Drug Control and Capital Punishment History
Full text linkThe Article examines Thailand\u27s political economy of drugs and use of sanctions, including capital punishment, using a historical approach. It traces Thailand\u27s nation building and emergence as a global hub for illicit drugs against the backdrop of European and US interventions since the colonial era. The Article reveals how Western concepts and discourses were appropriated by Thai elites to advance local agendas while suppressing democratic movements. The Article explores how the drug trade became entangled with government corruption, militarization, and extrajudicial state violence which often targeted ethnic minorities. In light of recent cannabis policy changes, the Article considers the historical trajectory of Thailand\u27s drug policies and laws. It locates the origins of contemporary developments in the historical role of Western powers in Thailand\u27s drug production and control. The Article touches on both formal and informal punishment systems related to drugs, highlighting the relationship between commuting death sentences and periodic extrajudicial killings. In conclusion, it cautions against portraying human rights as moral imperialism, and argues for recognizing the role of grassroots activism in the context of anti-death penalty efforts
Tax Law Analysis
Full text linkTax law has a unique analytical framework, which the nature of tax law requires. In areas of uncertainty, advisors and taxpayers are unable to determine the outcome of some reporting positions. If a taxpayer takes a reporting position that results in the taxpayer paying less tax at the time a tax return is filed, the taxpayer runs the risk of being required to pay tax later upon an IRS audit. Congress recognizes that there are areas of uncertainty in tax law and only imposes penalties if the authority supporting a reporting position is weak. To determine the strength of a reporting position, a tax advisor must be able to identify and analyze legal authority that relates to the reporting position and determine whether the authority supports the desired reporting position or is contrary to it. The analysis then requires assessing the relevance, persuasiveness, and type of document of each authority that relates to a reporting position and weighting each authority. By weighting the types of authority based upon those three criteria, an advisor is able to determine the likelihood that a reporting position will be upheld. That likelihood determines whether the support for a reporting position is sufficient for the taxpayer to avoid penalties in the event a court determines that tax was owed with respect to the reporting positio
Cutting the Corporate Puppet Strings Off Your Physician’s Hands: How Approval Requirements for Material Health Care Transactions Will Improve Patient Outcomes
Full text linkHealth care expenditures have grown substantially in recent years, captivating the attention—and investments—of private equity firms. While funding appears attractive to health care institutions, the conflicting priorities of hospitals and firms regarding patient outcomes and monetary gain lead to detrimental impacts on the quality, access, and cost of patient care. These effects highlight the current deficit of federal and state regulation targeting private equity involvement in health care. Recently, states have responded to this absence of legislation by enacting or proposing new laws to govern material health care transactions. In May 2023, New York followed the trend, ratifying Article 45-A of the Public Health Law (Article 45-A) to achieve this very purpose. Although Article 45-A is likely to increase the transparency of transactions due to its notice requirement, it does not empower the state to prevent harmful transactions. Thus, the law is unlikely to improve the quality, access, or cost of patient care. This Note argues that Article 45-A should be amended to include an approval requirement, allowing regulators to block suspicious transactions from closing. Furthermore, this Note suggests that the amended law implements a review process to weigh specific factors and assess public commentary to determine whether anticipated impacts of a transaction should prevent its approval. Lastly, this Note proposes that the amended law requires notice of plans for maintaining appropriate health care staffing volumes and debt repayment to mitigate the adverse effects of private equity on patient health outcomes
Sounds of Silence: Codifying the Unimpaired Creditor’s Right to Post-Petition Interest at the Contract Rate
Full text linkCapital markets, reliant on a framework of transactional predictability and legal surety, face a nuanced challenge arising from the U.S. Bankruptcy Code’s provisions for solvent debtors in Chapter 11 cases. This challenge is the precise methodology for calculating post-petition interest rates on claims of unimpaired, unsecured creditors—a calculation that hinges on whether to apply the contract, state law, or the federal judgment rate. Section 502(b)(2) of the Bankruptcy Code generally prohibits the accrual of interest after a bankruptcy filing. However, this ban is circumvented when the debtor is solvent—the so-called “solvent debtor exception.” This exception, stemming from pre-Bankruptcy Code practice, is not comprehensively addressed in the current Bankruptcy Code. Although the exception holds, the Bankruptcy Code’s language remains ambiguous regarding the specific interest rate applicable in Chapter 11 proceedings. Determination of this rate carries significant financial implications, with the potential to materially alter creditor recoveries. Lack of statutory clarity has resulted in numerous judicial decisions where similarly situated creditors have been treated disparately. Congressional silence on the specific rate for post-petition interest in Chapter 11 solvent bankruptcies has created a cacophony of legal interpretations and disrupted the Bankruptcy Code’s intended balance. To restore harmony and efficiency within credit markets, urgent legislative action is required. This initiative should take the form of a codified directive that would clarify the Bankruptcy Code’s silence and affirm, unambiguously, the appropriate post-petition interest rate due to unimpaired, unsecured creditors in solvent debtor actions
International Compliance Codes: Reflections on Their Significance
Full text linkThis Article explores the significance of international compliance codes. After describing compliance and reviewing compliance program activities and structures that have become the standard compliance mode, it looks at major U.S. and international compliance codes that helped establish and reinforce that model. It then explores reasons for the successful international diffusion of compliance, as evidenced by the international compliance codes. It particularly highlights that the compliance codes have followed a well-trodden path of international codes of business practices, which is to present them as a kind of neutral business technology. It discusses the main reason for this presentation, academic criticism of it, and the persistence of this approach despite that criticism. It observes that compliance practitioners in large international organizations have an interest in embracing the codes, which validate their own position and role in their organization. The Article offers additional reflections on the success of and the lack of opposition to the international compliance codes. It particularly emphasizes that compliance practices presented as a neutral, technical kind of expertise could serve any social or economic purpose in a given local setting, which allows compliance to be embraced in countries with different cultural and economic orientations. The Article concludes by observing that, while the international compliance codes raise the issue about the convergence of compliance practices, through their success and generality they may obscure differences in compliance orientations in countries
Emerging Compliance in the Generative Decentralized Era
Full text linkIs it the end of compliance as we know it? Emerging technologies such as Artificial Intelligence (“AI”), including Generative AI (“GenAI”), and blockchain are reshaping regulatory compliance in the Web 3.0 era. As machine-generated data becomes the norm, traditional models reliant on human oversight are becoming obsolete, necessitating swift adaptation from regulators and industry stakeholders. Historically, compliance was designed to be managed by humans due to the need for critical thinking, ethical considerations, and nuanced decision-making. Yet, in today’s era, this approach is no longer viable. Addressing this need, Regulatory Technology (“RegTech”) has played a key role in modernizing compliance through automation and data analytics. Nevertheless, emerging technologies keep presenting new challenges with data integrity, privacy, cybersecurity, IP rights infringement, and regulatory evasion. For instance, more data is synthetic or AI-generated, often used without individuals or businesses knowing, which introduces new complexities and challenges. Likewise, smart contracts and oracles, which are algorithmic and often operate with minimal human supervision, are becoming more commonly used in compliance frameworks. These complexities demand robust, adaptable regulatory frameworks and interdisciplinary efforts. Examples include the Department of Justice’s updated Evaluation of Corporate Compliance Programs, the Federal Trade Commission’s plan to crackdown on deceptive AI claims, the Securities and Exchange Commission’s 2025 Examination Priorities announcement, and the Evidence Act’s Federal Chief Data Officers Council’s work. In particular, the impact of GenAI and blockchain necessitates innovative compliance models capable of managing the volume and complexity of digital data. There’s a pressing need for frameworks that leverage these technologies for proactive risk management and enhanced regulatory oversight. The emergence of digital technologies signifies not the end of compliance, but a crucial evolution. Advocating for agile, data-centric compliance strategies, the shift towards integrating AI and blockchain aims to make regulatory mechanisms more transparent, fair, and efficient. Moving from human-centric to system-driven governance is essential for the integrity and future of compliance, marking a significant evolution rather than an end