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Public Education: Engaging with Secondary Education in Schools, in International Handbook on Clinical Tax Education (Amy Lawton ed., 2023)
Get PDFThis chapter will consider the benefits of public education by considering educational outreach projects in secondary schools. Chapter 8 discussed the importance of tax education for young people. Forging relationships with local schools (and, indeed, wider community organisations) is a worthwhile endeavour for any clinical tax education project. In addition to the benefits to university students (covered in more detail in Part III), the community benefits include stronger ties to the local community as well as a contribution to the financial literacy (and tax literacy) of taxpayers.https://scholarlycommons.law.wlu.edu/fac_books/1189/thumbnail.jp
Brief of First Amendment and Securities Law Scholars as Amici Curiae in Support of Respondent: \u3cem\u3eNational Center for Public Policy Research v. Securities and Exchange Commission\u3c/em\u3e
Get PDFAmici are law professors with significant expertise in corporate and securities law, and constitutional law, particularly regarding the First Amendment. They have published extensive analyses about the Shareholder Proposal Rule, shareholder voting, corporate democracy, First Amendment “coverage,” the constitutionality of mandatory disclosures, and various related issues. Amici thus have particular expertise in the First Amendment issues raised by the parties in this case.
Amici submit this brief to respond to Intervenor National Association of Manufacturers’ extreme argument that Rule 14a-8 violates the First Amendment. This position ignores—and NAM repeatedly overlooks—the vital function of proxy solicitation in modern corporate governance and the potential for material omissions in proxy materials to impair the shareholder franchise
The Perks of Being Human
Get PDFThe power of artificial intelligence has recently entered the public consciousness, prompting debates over numerous legal issues raised by use of the tool. Among the questions that need to be resolved is whether to grant intellectual property rights to copyrightable works or patentable inventions created by a machine, where there is no human intervention sufficient to grant those rights to the human. Both the U. S. Copyright Office and the U. S. Patent and Trademark Office have taken the position that in cases where there is no human author or inventor, there is no right to copyright or patent protection. That position has recently been upheld by a federal court. This article argues that the Constitution and current statutes do not compel that result, that the denial of protection will hinder innovation, and that if intellectual property rights are to be limited to human innovators that policy decision should be made by Congress, not an administrative agency or a court
The Counterintuitive Court: How the Supreme Court’s Punitive Damages Jurisprudence Endangers Marginalized Communities
Get PDFPunitive damages are awarded in civil suits to deter intentionally reckless and grossly negligent behavior. The goal of punitive damages is to punish the tortfeasor and protect the public from future misconduct. However, the Supreme Court’s recent jurisprudence on punitive damages reflects a shift towards protecting businesses from what the Court perceives as an arbitrary taking under the Due Process Clause. This Note argues that these decisions are dangerous, especially for marginalized communities. This Note begins by defining punitive damages and common criticisms of punitive damages awards. This Note then discusses the role of the Supreme Court in reviewing punitive damages awards, focusing specifically on the Supreme Court’s pro-corporate jurisprudence. This Note argues that these pro-corporate decisions reducing punitive damages awards has created a systemic imbalance in our torts system in which defendants are protected from having to fully internalize the costs of their conduct at the expense of injured plaintiffs. This Note will then highlight the danger of the Supreme Court’s punitive damages jurisprudence for marginalized communities through a discussion of Opioid Litigation, Exxon Shipping Co. v. Baker, and the Philip Morris Tobacco Cases. Finally, this Note discusses Johnson & Johnson v. Ingham, and suggests that only state appellate courts should be involved in reviewing punitive damages awards
Reining in the “Third Path”: Rethinking the War Powers Resolution and Private Security Contractors
Get PDFFrom the American Revolution to the War in Afghanistan, the United States has hired private contractors to perform a myriad of tasks, from feeding the troops to researching hypersonic missile defense systems. Following the collapse of the Soviet Union, however, the nature of work performed by these contractors began to shift. No longer were contractors relegated solely to unarmed tasks. From the jungles of Colombia to the deserts of Iraq, armed contractors—known as Private Security Contractors (PSCs)—have guarded American military bases, protected heads of state, assaulted enemy compounds, and more.
Using PSCs is not without risk. Incidents like the Nisour Square massacre highlight the devastation that PSCs can cause. While advocates point to a seemingly robust web of legal restraints that constrain the worst excesses of PSC abuse, this Note argues that these checks are ultimately inadequate. Moreover, PSCs escape one of the strongest protections that would limit their use: the War Powers Resolution. The War Powers Resolution is a pioneering piece of legislation meant to constrain the unfettered zeal of executive authority. However, because the Resolution applies only to the “U.S. Armed Forces,” and not PSCs, the President may deploy PSCs for long periods of time without meaningful congressional oversight.
This Note proposes that Congress should expand the War Powers Resolution to incorporate PSCs by explicitly adding the phrase “Private Security Contractors” to the statute. By including PSCs, Congress will have more legislative tools to monitor and potentially restrict the President\u27s use of PSCs. Requiring the President to consult, report, and notify Congress when deploying PSCs allows Congress to exert pressure on the President to avoid any unwarranted use and prevent potential future catastrophe
#MeToo & The Courts: The Impact of Social Movements on Federal Judicial Decisionmaking
Get PDFIn late 2017, the #MeToo movement swept through the United States as individuals from all backgrounds and walks of life revealed their experiences with sexual abuse and sexual harassment. After the #MeToo movement, many scholars, advocates, and policymakers posited that the watershed moment would prompt changes in the ways in which sexual harassment cases were handled. This Article examines the impact the #MeToo movement has had on judicial decisionmaking. Our hypothesis is that the #MeToo movement’s increase in public awareness and political attention to experiences of sexual misconduct should lead to more pro-claimant voting in federal courts at the district and courts of appeals levels.
For district courts, we find that the probability of a pro-employee ruling in a district court increased drastically after November 1, 2017. However, while pro-employee rulings increased in district courts during the #MeToo era, pro-employee rulings decreased in circuit courts during this time period. Our findings suggest that the #MeToo movement—an extralegal social movement—impacted legal rulings that occurred in its wake before district courts but courts of appeals were more restrained in their reaction to the movement. Importantly, the law and legal standards in place during the time period of our study did not meaningfully change. In short, the #MeToo movement had a statistically significant impact on rulings from district court judges
Does the Death Penalty Still Matter: Reflections of a Death Row Lawyer
Get PDFThis talk was given by Professor David Bruck for the Frances Lewis Law Center at Washington and Lee University School of Law, April, 2002. It is a follow-up to “Does the Death Penalty Matter?,” given by Professor Bruck as the 1990 Ralph E. Shikes Lecture at Harvard Law School
The Gross Injustices of Capital Punishment: A Torturous Practice and Justice Thurgood Marshall’s Astute Appraisal of the Death Penalty’s Cruelty, Discriminatory Use, and Unconstitutionality
Get PDFThrough the centuries, capital punishment and torture have been used by monarchs, authoritarian regimes, and judicial systems around the world. Although torture is now expressly outlawed by international law, capital punishment—questioned by Quakers in the seventeenth century and by the Italian philosopher Cesare Beccaria and many others in the following century—has been authorized over time by various legislative bodies, including in the United States. It was Beccaria’s book, Dei delitti e delle pene (1764), translated into French and then into English as An Essay on Crimes and Punishments (1767), that fueled the still-ongoing international movement to outlaw the death penalty. An edict of the Grand Duke of Tuscany, issued in 1786, made Tuscany the first jurisdiction in Western civilization to abolish capital punishment for all crimes. In 2021, decades after Justice Thurgood Marshall spoke out against “the gross injustices in the administration of capital punishment” and filed relentless dissents asserting that the death penalty is a per se violation of the U.S. Constitution’s Eighth and Fourteenth Amendments, the Commonwealth of Virginia became one of the latest jurisdictions to abolish capital punishment.
In the more than 250 years since the publication of Beccaria’s On Crimes and Punishments, much penal reform and social change has occurred, including with respect to interrogation, criminal justice, and punishment practices. Judicial torture, for example, was once explicitly authorized in civil law countries in continental Europe, but the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment now expressly prohibits both physical and mental forms of torture. In addition, Western penal systems have abandoned non-lethal corporal punishments—once a staple of centuries-old legal systems. The English common law and the Eighth Amendment, in fact, have long been understood to prohibit torture, though the concept of torture was understood much differently in the seventeenth and eighteenth centuries than it is in the twenty-first century. England’s monarchs, acting outside the common-law prohibition, previously made use of devices of torture such as the rack and the thumbscrew, and the U.S. Supreme Court—in the nineteenth century—explicitly approved the use of public shooting and electrocution as methods of execution even as it simultaneously held that the Eighth Amendment bars torturous punishments. European countries, including England, now explicitly forbid executions altogether through two protocols to the European Convention on Human Rights. Significantly, although the English “Bloody Code” once authorized death sentences for scores of offenses along with various non-lethal corporal punishments such as ear cropping and the pillory, bodily punishments such as branding and the stocks are no longer part of Western penal codes.
This Article contextualizes the modern death penalty debate and recalls the cogent arguments that Justice Thurgood Marshall made against capital punishment in his judicial opinions. It then shows how Justice Marshall’s vocal and pragmatic critique of capital punishment—one rooted in his own experience as a civil rights lawyer in capital cases and, later, as a justice—should be taken seriously and adopted by present-day U.S. Supreme Court justices. In laying out Justice Marshall’s persuasive arguments against capital punishment, the Article points out that mock (or simulated) executions and other threats of death or bodily harm in other contexts (e.g., with respect to custodial interrogations) are already treated as impermissible acts of psychological torture. With Justice Marshall regularly classifying the death penalty as a “cruel and unusual punishment” in his powerful, well-grounded dissents, this Article asserts that those dissents against capital punishment should become the law of the land in the twenty-first century. Not only is capital punishment cruel and unusual and a violation of equal protection of the laws as Justice Marshall contended, but it is clear that, in light of the modern definition of torture, statesponsored death threats must be classified under the rubric of torture—what the law considers the extreme form of cruelty. The absolute prohibition of torture is already considered to be a jus cogens norm of international law and that legal prohibition admits of no exceptions, with the death penalty bearing all the tell-tale indicia and characteristics of torture. In fact, an immutable characteristic of capital punishment is that it makes use of credible threats of death.
In short, the death penalty’s use—long known to intentionally inflict severe pain and suffering, and long administered in a highly arbitrary and discriminatory fashion in violation of fundamental human rights—must be outlawed and strictly forbidden to ensure that no one is subjected to the cruelty or torture of facing a capital prosecution, living under a sentence of death, or being put to death at the hands of the state. Justice Marshall—along with his colleague, Justice William Brennan—frequently wrote that the U.S. Constitution’s Eighth and Fourteenth Amendments should be interpreted to bar the death penalty’s use in all circumstances. In examining all of the evidence, much of which is irrefutable, this Article concludes that Justice Marshall was correct and that the death penalty’s use must be declared to be unconstitutional and a per se violation of the U.S. Constitution. Death sentences and executions violate human dignity, fundamental human rights, and the equal protection of the laws—concepts at the very heart of American and international law, and ones that Justices Marshall and Brennan regularly cited in their judicial opinions. In the twenty-first century, death sentences and executions must be stigmatized for what they truly are: acts of extreme cruelty amounting to torture
The SEC\u27s SPAC Solution
Get PDFThe SPAC craze has ebbed and flowed over the past few years, creating fortunes and ruining others. The SEC stepped into the mix in 2022 and proposed rules governing SPACs. The proposed rules artfully balance the interests of investor protection while retaining some of the featured characteristics of SPACs as innovative ways to take companies public. This Article details the history of SPACs, including their benefits and risks, and analyzes the SEC’s proposed rules, arguing that the SEC is well within its Congressional authority to regulate SPACs, and that the proposed rules are both well-tailored and necessary
Constitutional Resilience
Get PDFSince the New Deal era, our system of constitutional governance has relied on expansive federal authority to regulate economic and social problems of national scale. Throughout the twentieth century, Congress passed ambitious federal statutes designed to address these problems. In doing so, it often enlisted states as regulatory partners—creating a system of shared governance that underpins major environmental statutes, such as the Clean Water Act and the Clean Air Act. These governance structures remain important today as we seek to adapt our laws and institutions to the serious disruptions of climate change. But recent Supreme Court decisions challenge this long-established vision of governance. This raises a critical question: How resilient is our current system of constitutional governance?
Originally applied to the natural sciences, resilience theory has since inspired scholars across disciplines to think about how social-ecological systems respond to disruptive change. At the heart of resilience thinking is an attempt to balance stability with change. But as legal scholars of adaptive governance have argued, if our normative goal is to promote the resilience of ecosystems and natural resources, our system of governance must also encourage an ecological resilience that supports the flexibility and adaptive capacity of our governing institutions and laws. Not surprisingly, the adaptive governance literature focuses on democratic processes and institutions at all levels of government. Constitutional design is a background condition rather than a feature of adaptive governance or decision making.
But background conditions may impede or facilitate the emergence of adaptive laws. Moreover, the judicial interpretations of these conditions are less static and therefore capable of either facilitating or hindering the adaptive capacity of institutions and laws. The premise of this Article is that constitutional governance doctrines can and should balance the stability of static rule-of-law resilience with the flexibility required for adaptive governance in a climate-disrupted world. Judicial doctrines can enhance adaptive capacity by fostering shared, overlapping governance and regulatory flexibility. Unfortunately, recent doctrinal trends threaten to hinder adaptive capacity. This Article examines some of these constraining threads, including the narrowing of Congress’s authority under the Commerce Clause, the resurgence of the nondelegation doctrine, and doctrines governing state authority under the Dormant Commerce Clause