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Hospitals and Local Taxation: The Troubled Tale of Property Tax
Get PDFThe taxation of hospitals is plagued with subjectivity, which especially burdens nonprofit hospitals. Inconsistencies across localities further exacerbate the uncertainty encountered by nonprofit hospitals seeking local tax exemptions. While federal and state tax implications for nonprofit hospitals receive most of the attention from debaters and scholars, local property tax exemptions are also of significant value for nonprofit hospitals and have been largely overlooked. This Comment explores the policy arguments for and against nonprofit status for hospitals. It shows that while the federal government has chosen relatively bright-line rules for determining non-profit status, localities are far less predictable. This Comment contributes to the literature by (1) highlighting the overlooked local taxation implications on the non/for profit hospital debate, (2) analyzing the inefficiencies that are created through inconsistencies across localities, and (3) suggesting the implementation of clear expectations for hospitals to receive specified tax breaks
Balance in the Basin
Get PDFThe National Environmental Policy Act (NEPA) changed the way land managers and users interact with public lands. However, its stringent requirements are not responsive to today’s environmental and economic realities. For the future of sustainable mineral extraction, there must be a better way. Adaptive management, a more flexible planning process, should be used on public lands to ensure greater leeway for operators, environmentalists, and local economies. By analyzing rural northeastern Utah’s Uinta Basin’s history and existing public land use plans, this Note applies adaptive management to the area to show how thinking outside the box can solve seemingly unsolvable problems
MANUEL LOPEZ, Appellant, v. OWELL PRECAST and/or WORKER\u27S COMPENSATION FUND Appellees
Get PDFBRIEF OF APPELLEES OWELL PRECAST AND WCF MUTUAL INSURANCE COMPAN
The Unconstitutional Assertion of Inherent Powers in Multidistrict Litigations
Get PDFThis Article examines the constitutional basis of the federal courts’ independent exercise of “inherent powers” (IPs) that Congress has not specifically authorized. Our analysis illuminates the grave constitutional problems raised by the freewheeling assertion of IPs in multidistrict litigations (MDLs), which comprise over half of all pending federal cases.
The Supreme Court has rhetorically acknowledged that the Constitution allows resort to IPs only when doing so is absolutely necessary to enable Article III courts to exercise their “judicial power,” but has then sustained virtually all exercises of IP, whether essential or not. The Court’s excessive deference has emboldened trial judges to claim an ever-expanding array of IPs. The Constitution, however, requires a sharp distinction between two kinds of IPs.
First, “indispensable” IPs are those without which courts could not properly exercise their “judicial power” — rendering a final judgment after interpreting the law and applying it to the facts. Such adjudication may require judges to fill gaps in written procedural rules; manage their cases reasonably and efficiently; maintain their authority by punishing litigation misconduct; and ensure that attorneys are competent and ethical. Article I authorizes Congress to facilitate, but not impair, such indispensable IPs.
Second, federal judges cannot legitimately claim IPs that are merely “beneficial” (i.e., helpful or convenient), but that do not affect their ability to function as independent courts. Rather, Article I empowers Congress alone to grant such IPs, regulate t hem, or withhold them. Moreover, courts can never assert IPs in a way that violates parties due process rights.
The proposed constitutional framework would clarify all IPs, but would be especially useful as applied to MDLs. In these complex cases, district courts have asserted an astonishing variety of IPs to regulate parties and their attorneys. Yet only one IP invoked in MDLs — the power to appoint liaison counsel to handle communications and coordinate litigation activities — is proper because it is indispensable and leaves parties substantive and procedural rights unchanged.
Other IPs asserted in MDLs should be foresworn because they are beneficial powers that Congress has not authorized. Examples include the practice of forcing parties retained lawyers to compensate court-appointed lead attorneys, caps on retained lawyers fees, sua sponte enforcement of state bar rules that govern matters unrelated to adjudication, and judicial review of settlements. Yet other IPs would exceed even Congress s powers because, by asserting them, judges deny parties due process of law. Judicial appointments of lead attorneys who displace parties retained lawyers fall into this category by saddling plaintiffs with virtual representation (VR), which the Supreme Court has for bidden. Worse, because the success of MDL s as a means of eliminating repetition and conserving resources depends upon the use of VR, the procedure itself is constitutionally infirm
The Constitutional Model of Mootness
Get PDFArticle III limits the federal courts to deciding cases and controversies, and this limitation has given rise to the black-letter law of standing, ripeness, and mootness. But the law of mootness presents a puzzle: Over time, the Court has recognized various exceptions to ordinary mootness rules, allowing federal courts to hear arguably moot cases. On one hand, the Court consistently asserts that mootness doctrine, including its exceptions, is compelled by the original understanding of Article III. On the other hand, the scholarly consensus is that these exceptions are logically inconsistent with the Court s claims about Article III and that their existence proves that mootness is fundamentally prudential, not constitutional.
This Article seeks to provide a coherent justification for the mootness exceptions within the constitutional model. First, some exceptions are not really exceptions at all. Collateral consequences; voluntary cessation; and capable of repetition to the same plaintiff, yet evading review — these doctrines merely recognize a shift from a present harm to a potential future harm. And that harm might be sufficiently likely to occur when examined in the light of Bayes\u27 Theorem. Second, the other exceptions, for class actions, are justified through a better understanding of the history of representative litigation. And that understanding also justifies the extension of the capable of repetition, yet evading review exception to non parties who are similarly situated to the plaintiff. Modern mootness doctrine is therefore conceptually consistent with the Court s understanding of the original meaning of Article III
OSHA’s COVID-19 Vaccine Mandate: Why Justice Gorsuch’s Analysis of the Mandate as an Elephant in a Mousehole Misses the Mark
Get PDFAdministrative law doctrines such as Chevron seek to strike a balance between adequate delegated power and sufficient checks on such power. The major questions doctrine reinforces the latter. Recent decisions finding major questions, however, have shown a departure from textualist principles, which formed the doctrine s foundation. Justice Gorsuch\u27s opinion in NFIB v. OSHA is an example of this desertion of textualist principles and should thus be viewed as an improper application of the major questions doctrine. Rather than remodeling the major questions doctrine, textualist judges should acknowledge that this form of anti-textual analysis is nothing short of a revival of the nondelegation doctrine. Failing to return the doctrine to textualist principles weakens the reliability of the major questions doctrine as a tool for statutory interpretation and damages the credibility of textualist judges\u27 opinions that employ the doctrine in administrative law cases
Private Sanctions, Public Harm?
Get PDFThe legal profession has a secret. In response to widespread public distrust in the profession’s ability to regulate itself, disciplinary authorities have undertaken modest efforts over the last several decades to make their activities more transparent. They have opened up their formal proceedings, publicized the identities of sanctioned attorneys, and shared information about their work online. But at the same time, most have quietly continued to resolve cases of ostensibly “minor” and “isolated” misconduct through private sanctions, keeping the identities of disciplined attorneys – and their misconduct – hidden from view.
This Article takes a comprehensive look at private sanctions to determine whether their continued use can be justified. It presents the results of an original empirical study on disciplinary systems throughout the country over the past twenty years, including five states that have revealed some details of their private sanctions. These data show that private sanctions are at times being imposed for misconduct that is anything but “minor” and on attorneys whose conduct is anything but “isolated.” Moreover, there is no persuasive evidence that private sanctions are having their intended deterrent effect or adequately protecting the public from the risk of future harm. Unless jurisdictions commit to greater transparency and can demonstrate that their private sanctions are being appropriately administered and are effective, they should not be able to continue disciplining attorneys behind closed doors