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Trouble in Paradise: Puerto Rico\u27s Routine Exclusion from Federal Benefit Programs as a Result of the Alien-Citizen Paradox
Get PDFPuerto Ricans are United States citizens by birthright. The island itself is neither a state nor an independent country, but rather, a territory of the United States. As a territory, Puerto Rico holds a unique tax status, and its residents are exempt from some federal and income taxes. Regardless, Puerto Ricans contribute significantly to the federal treasury by paying customs taxes, federal commodity taxes, and all payroll taxes (also known as FICA taxes), which include Social Security, Medicare, and Unemployment Compensation. Yet, its residents are still subject to discrimination on the basis of residency. In this article, I will explore how, despite being U.S. citizens, paying steep taxes, and contributing to the Social Security trust fund, Puerto Ricans have been deprived of equal financial assistance from the government. This is exemplified by Puerto Rico’s exclusion from the Supplemental Security Income (SSI) program. Looking past the Fourteenth Amendment Equal Protection issue presented by this deprivation, I aim to highlight how the federal government takes advantage of Puerto Rico’s political status by taxing its citizens without adequate representation in Congress and how the federal government im-poses limitations on when and where Puerto Ricans may receive financial assistance from the government, such as SSI benefits, which are easily accessible to U.S. citizens living in the 50 states and the Northern Mariana Islands
Mmm, mmm, no good: Refocusing on the Article of Manufacture Requirement for Obviousness of Design Patents
Get PDFWhile Campbell’s canned soup is appetizing to many, patent attorneys may not have an appetite for the law of obviousness. In the Inter Partes Review (“IPR”) process, a petitioner often attempts to invalidate patent claims using the sword of obviousness. When defending a patent in an IPR, a patent owner must apply evidence supporting patent validity to the invention itself. Why even have the requirement to link evidence to a patented invention in the first place? Campbell Soup Co. v. Gamon Plus, Inc. attempted to answer this question
Genetically Engineered Food, Food Security, and Climate Change
Get PDFMalnutrition is the leading cause of death and disease worldwide. Climate change is an existential crisis. We need to feed people and address the role of agriculture in climate change – at the same time. This is problematic, as agriculture inherently creates issues that contributes to climate change. Utilizing science, through genetically engineered crops, is one way to close the harm gap between food security and climate change. This essay addresses the controversial issue of genetically engineered crops with the complicated issues of food security and cli-mate change by analyzing three main issues: (1) how the science of genetically engineered crops can improve food security and lessen the impact of agriculture on climate change; (2) international regulation of genetically engineered crops; and (3) consumer misperception of risk as it relates to genetically engineered crops. In sum, this article tackles the complicated problem of genetically engineered food as it relates to food security and climate change. This essay is forward thinking as it promotes closing the divide between consumer misperception of risk and evidence-based assessment of risk to allow science to improve our food supply and decrease the impact on the planet
READINGS AND RESOURCES FOR TEACHING
Get PDFThis post provides links to resources that instructors can use when teaching dispute resolution
Taxation and the Constitution, Reconsidered
Get PDFOur current income tax is unable to address growing concentrations of financial wealth and resulting economic inequality. But reforms to address these problems—such as a wealth tax or an income tax on unrealized capital gains—are stymied by fears of unconstitutionality. The basic claim is that wealth taxes and similar reforms are “direct taxes” under the Apportionment Clauses of the Constitution, and since apportionment is not feasible, these taxes are impossible. But this claim is wrong.This Article shows that there is in fact a long history of federal taxes similar to wealth taxes—both apportioned and uniform—and a well-developed constitutional tax jurisprudence to go along with that history. This jurisprudence has laid mostly dormant during the past century-plus of the income tax era, but a reconsideration of taxation and the Constitution shows that we should now have multiple viable paths for taxing extreme concentrations of wealth.In particular, we call for reviving a two paths approach to constitutional tax questions, which was dominant for most of the first century of United States history. Under this view, apportionment, like uniformity, is merely a method of taxation, not a barrier. We show for the first time in the literature how this method is practically viable today using modern fiscal instruments.We also show for the first time in the literature that there is coherent and mostly consistent Supreme Court jurisprudence to guide the two paths approach, even including the much-reviled case of Pollock v. Farmers’ Loan & Trust Co. Central to this jurisprudence is what we call the Excise Tax Canon, a quasi-canon of constitutional interpretation under which prominent wealth tax and similar reforms should be upheld as excises that can follow the uniformity path.Finally, because there is uncertainty about which path—apportionment or uniformity—the Supreme Court might require, we propose strategies for drafting a tax reform to navigate those uncertainties
New York\u27s Requirements for Contractual Definiteness with Application to the Formation of Investment Vehicles
Get PDFA review of 82 modern New York cases reveals an unexpected frequency of authority requiring contractual definiteness as to what may reasonably appear to be minor terms.Illustrative are cases holding inadequately definite ordinary ways preliminary agreements may express compensation on a percentage of net basis. Other unexpected authority (i) is less willing than expected to allow subsequent actions to provide sufficient definiteness to initially indefinite agreements and (ii) denies the enforceability of confidentiality provisions and a right of first refusal.The survey includes some unexpected support for contracts specifying a plausibly material portion of the consideration with inadequate definiteness as also precluding recovery in restitution. That includes not giving effect to thoughtful drafting choices apparently designed to avoid that outcome.The survey gives rise to unease whether a court will find fatally indefinite an LLC operating agreement that grants one partner unfettered discretion in choice of section 704(c) method, if built-in-gain property is to be contributed. There is not authority directly addressing this issue. But the pattern of requiring excess specificity, coupled with authority addressing discretionary choices addressing circumstances that are not comparable, creates concern for this author
Textualism: Definition, and 20 Reasons Why Textualism is Preferable to Other Methods of Statutory Interpretation
Get PDFWhen Justice Elena Kagan announced that “we’re all textualists now,” she was referring to a method of statutory interpretation known as textualism. Textualism is one of four methods of statutory interpretation. The other methods are: intentionalism, purposivism, and legal pragmatism. During the confirmation process, Justice Amy Coney Barrett was asked by Senators whether she was committed to a “textualist theory” of statutory interpretation, and whether she shared the judicial philosophy of Justice Scalia. But why is the method of statutory interpretation that a judge chooses so important? It is important because most cases that come before federal courts today involve issues of statutory interpretation, and the method of interpretation a judge chooses can determine the outcome of a case. This article will argue that textualism is preferable to the other three methods of statutory interpretation, especially legal pragmatism
The Exclusionary Rule and Judicial Integrity: An Empirical Study of Public Perceptions of the Exclusionary Rule
Get PDFFourth Amendment violations call upon courts to resolve the difficult question of who will benefit from past misconduct—the factually guilty defendant or the overreaching government. Either way, courts are forced to punish the misdeed of one actor and allow the other to profit from its misconduct, potentially undermining the public’s trust in the courts. The Supreme Court opined that suppressing unlawfully obtained evidence through the exclusionary rule deters police misconduct and better preserves judicial integrity. However, with the recent discrediting of the police deterrence rationale and the growing belief that the suppression of probative evidence instead undermines judicial integrity, the exclusionary rule faces an existential crisis. Whether the rule promotes or undermines judicial integrity, therefore, is key to its survival. Using a series of cross-national public opinion survey experiments, this article tests whether the exclusionary rule promotes or undermines judicial integrity in the United States and abroad. The article considers the application of the exclusionary rule in the context of various criminal and police misconduct as well as the application of alternative remedies such as administrative proceedings for police misconduct. In doing so, the article offers the first empirical evidence that the exclusionary rule promotes judicial integrity in the United States but undermines judicial integrity abroad. These findings suggest the judicial integrity rationale is the most promising, empirically-justified rationale for the exclusionary rule in the United States, but other rationales may be more effective elsewhere
Impeachment and Its Discontents
Get PDFWhat purpose do presidential impeachments serve if the Senate does not convict? Should impeachment be attempted at all if there is no chance of conviction? These questions remind me of the old joke in which someone is asked whether he believes in infant baptism. He replies, “Believe in it? Heck, I’ve actually seen it done.