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My Pillow or Yours?: Balancing Personal Property Rights and Government Interests
Get PDFWhen an individual is involved in a criminal investigation, the government may obtain a valid warrant allowing agents to seize property related to the alleged criminal activity. The government may seize personal property because it is either contraband or evidence of the crime being investigated. The types of property the government can seize are vast, ranging from $65,000 to sixty-five-million-year-old dinosaur bones, to something as personal as an individual’s private cell phone. Ultimately, when the government has a valid warrant to seize property, there is not much an individual can do to prevent the seizure
Historical Practice at the Founding
No full textIn recent years, the Supreme Court has increasingly relied on historical practice—actions other than judicial decisions that implement the law after its adoption. That creates tension with the Court’s professed adherence to originalism—the view that a law’s meaning is fixed at the time of its adoption. To resolve this tension, the Court and many scholars have embraced theories such as “liquidation,” which argue that the Founders themselves used practice to update or change the law’s meaning over time. But until now, no one has systematically examined whether the Founders accepted those theories.
This Article provides the first comprehensive analysis of how Founding-era courts used practice to interpret legal texts. It concludes that courts did not rely on practice to revise the law’s meaning; rather, they used it to discover what the law originally meant.
Courts believed that practice helped reveal original meaning for three main reasons. First, they thought that contemporaneous interpreters were more likely to understand the law’s text and purpose, which gave them valuable insight into its original meaning. Second, they believed that contemporaneous practices revealed how those interpreters understood the law. And third, they believed that contemporaneous practice was even better evidence of original meaning when it had continued unchanged over time.
At the same time, courts recognized that practice was not perfect. To address that risk, they applied a rigorous screening test designed to exclude unreliable practices and give greater weight to reliable ones. This test looked at various factors—such as whether the practice started shortly after the law’s adoption and whether it reflected a good-faith effort to interpret the law—that further confirm that courts used practice only as a tool for discovering original meaning.
This history has important consequences for the Supreme Court’s use of practice. First, the history suggests that the Court should refuse to rely on practice as a way of updating or changing the law’s meaning. And second, it suggests that the Court should reshape its current use of practice to better reflect the Founders’ approach
How Mediators and Lawyers Can Use AI: A Practical Video Guide
No full textThis article explains why mediators and lawyers increasingly need to use artificial intelligence (AI) tools in their work. It introduces a video that offers practical guidance for mediators and lawyers on using AI to enhance planning, help clients make better decisions, and improve efficiency. It includes a basic introduction to AI, guidance on getting good results and managing risks, and demonstrations of RPS Coach, a specialized AI tool. The article provides links to the video, PowerPoint slides, and a transcript of the demonstrations
Do as I Say, Not as I Do: The Foreign Tax Credit Regulations’ Focus on the Terms of Foreign Tax Law
Get PDFThe latest set of final regulations on foreign tax credits generally analyzes the creditability of foreign taxes by comparing U.S. regulatory requirements to the words of foreign tax laws, not to their application in practice or their economic effect. This approach essentially chooses increased administrability and reduced whipsaw potential at some cost to accuracy. It also represents a return to the position that the IRS advocated before the United States Supreme Court’s decision in PPL. The regulations’ preamble implies that taxpayers were not always following the post-PPL approach of examining a foreign tax’s economic effect. If taxpayers were more likely to prove the application and economic impact of foreign law when it benefited them, and conversely to rely on the words of foreign law when that produced a more favorable result, the IRS may have been whipsawed. In addition, due to the costs of proving data-reliant tests, larger taxpayers may have been better able to gather the relevant information about the economic effects of foreign tax laws, as compared to smaller taxpayers with fewer resources. Although the shift to general reliance on the terms of foreign law entails acceptance of some inaccuracies, this may be an acceptable cost for stopping the potential whipsaw of the government by taxpayers. Reliance on the terms of foreign law may also reduce the relative incremental advantage of larger taxpayers over smaller taxpayers regarding their ability to apply the relevant creditability tests
Understanding Landowner Perceptions: Enhancing Conservation Easement Adoption in Missouri\u27s Priority Landscapes
No full textConservation of private lands is essential for protecting open space, supporting ecosystems and species, preserving resources, and facilitating outdoor recreation. One tool for private land conservation is a conservation easement – a voluntary legal agreement where a landowner surrenders certain rights to use or develop their property. This study explores landowner perceptions of perpetual conservation easements in areas of high conservation value in Missouri, focusing on landowners without existing easements. Through interviews, four themes emerge containing both motivations and constraints: prior knowledge, land protection, regulations, and finance. Many landowners were unfamiliar with conservation easements or had misconceptions or misunderstandings. The results contribute to the limited body of qualitative research on conservation easements, while identifying broader themes relevant to other geographies. The results can inform policymakers, government agencies, land trusts, and private landowners. This study concludes that further public outreach and education would support conservation easement adoption
Psychology and Dispute Resolution: Looking Forward
No full textThere is a long and deep history of interconnection between dispute resolution and psychology. Concepts like procedural justice permeate the literature. Psychologists have investigated and provided data about phenomena such as the fixed pie bias, impasse aversion, and reactive devaluation. Research drawing on the psychology of heuristics and biases has been influential, particularly in work on settlement decision making. Studies in this tradition have explored how framing, anchoring, anticipated regret, and different ways of considering options can influence the decisions made by disputants. Psychologists have explored the role of apologies in dispute resolution, the role of emotion in negotiation, and how participants in dispute resolution processes persuade and influence each other. Advice about mindfulness is grounded in neuropsychology. These are just a few examples of the range of existing connections between dispute resolution and psychological research
“America’s Peacemaker” Needs a Makeover: The Department of Justice’s Community Relations Service Should Use Transformative Mediation and Restorative Justice in Today’s Black Lives Matter Movement
No full textOn March 7, 1965, civil rights leaders John Lewis and Hosea Williams led hundreds of people across the Edmund Pettus Bridge in Selma, Alabama. Their goal was to march to the state capitol of Montgomery in protest of racial segregation and the suppression of African American voters. On the other side of Pettus bridge, state troopers and spectators waving Confederate flags waited for them. When the protesters reached the end of Pettus, state trooper Major John Cloud ordered them to stop the march and leave. Williams tried to speak with Major Cloud, but Major Cloud rebuffed him. When the protestors continued their march, violence erupted. The state trooper attacked the marchers with tear gas, police clubs, and whips. Troopers on horseback chased and charged at protesters. The officers injured eighty-four people, with seventeen of them requiring hospitalization. State troopers brutally attacked John Lewis, leaving him with a fractured skull. Americans now remember this day with a name that captures the brutality inflicted on the protestors: Bloody Sunday