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Environmental Law in the New Supreme Court
Get PDFIn the 2006 term the United States Supreme Court issued plenary decisions in four environmental cases. As is usually the case, all four environmental cases that reached the Supreme Court presented nuanced questions of statutory interpretation, most of which were intertwined with administrative law issues. The decisions this term are of unusual importance, as all have significant aspects, either practical, precedential, or attitudinal. Additionally, two of the cases exhibit the 5-4 cleavage, so common in this term\u27s decisions, in which Justice Kennedy is the outcome-determinative swing voter. On unusual occasions there are environmental cases decided by the Supreme Court that are of broader societal interest, and this term saw the decision of one such case
Reflecting on the Dream of the Marathon Man: Black Dean Longevity and Its Impact on Opportunity and Diversity
Get PDFAt the beginning of the 2005-2006 academic year there was, what many viewed, as a comparatively bounteous crop of African-American deans of ABA-approved law schools. However, several changes during that year caused the crop to diminish rapidly. At the time of this writing, there are eighteen deans of color at American Bar Association approved law schools within the United States. Of these, fifteen are African-American and two are Latino. Of this number, five African-American deans are deans of law schools associated with historically black universities. These comments address, not necessarily the absolute number of African-American or Latino deans at any one point in time, but rather the implications of the lack of maintaining long-term tenure or extended experience for those of us who choose to pursue such a calling. My focus on African-American and Latino deans, in particular, speaks to several specific concerns regarding historic exclusion; it is in no way a failure to recognize the importance of widespread diversity in academic leadership in legal education
Take Your Seats: A Student\u27s Ability to Protest Immigration Reform at Odds with State Truancy and Compulsory Education Laws
Get PDFThe Canine Metaphor and the Future of Sentencing Reform: Dogs, Tails, and the Constitutional Law of Wagging
Get PDFOver the last seven years, in what is commonly referred to as the Apprendi line of cases, the United States Supreme Court has promulgated an audacious and controversial constitutional law of sentencing characterized by thinly veiled disdain for legislative sentencing reform measures and high regard for judicial discretion in punishing offenders. The Court\u27s opinions have asserted that its newfound constitutional principle is necessary to safeguard defendants\u27 Sixth Amendment right to trial by jury against legislative encroachment. In truth, the only interest being preserved is judges\u27 assessment of their own importance. The doctrinal and practical effects of the new sentencing doctrine have been profound. Although the Court has sustained the validity of some sentencing measures, including a statutory mandatory minimum punishment in Harris,5 the broader course of its decisions has invalidated most forms of common and politically popular sentencing laws that limit judicial sentencing discretion, such as a statutory sentence enhancement in Apprendi and a system of mandatory state sentencing guidelines in Blakely. In 2005 the doctrine culminated in a coup de grace against legislative authority: the ruling in Booker that the application of sentence-enhancement provisions in calculating punishment under the Federal Sentencing Guidelines is unconstitutional unless the Guidelines are given only advisory, rather than mandatory, effect on the decisions of sentencing judges. Blakely and Booker in particular have exposed just how hopelessly flawed and analytically bankrupt the proffered Sixth Amendment analysis is. The principle set forth by the Court has become absurdly formalistic to the point that when it is applied to the determination of individual sentences, it now produces divergent outcomes in otherwise identical cases. The Court\u27s expressed justifications for its constitutional analysis cannot explain this troubling development, but examining the true constitutional interests at stake does. Deciding upon an individual offender\u27s particular sentence is not a unitary exercise, but in fact consists of three separate and distinct decisions: the adjudication of offense element facts, the adjudication of additional punishment facts, and the determination of the punishment value of those facts. Different constitutional interests are implicated by each kind of determination, yet too often the necessary analytical precision is lacking in the Court\u27s opinions. The tripartite analytical framework reveals that beneath the superficial camouflage of its Sixth Amendment analysis, the Court in fact has decreed as constitutional law a specific, contestable, and highly controversial normative vision of the nature of criminal sentencing. On one level the Court\u27s vision has pronounced a new balance of power between legislatures and judges concerning the adjudication of offense elements and additional punishment factors. The Court has reduced legislative and power, but it has not shifted that power to the trial jury; instead it has shifted that power to the sentencing judge. Seen in this light, the real function played by the Court\u27s principle is not protection of the jury\u27s province in criminal cases, but instead the protection of the sentencing judge\u27s authority to pass judgment on individual offenders. At this level alone the Court\u27s conclusions are subject to numerous critiques. It is far from clear that anything in the Constitution, much less the Sixth Amendment, mandates the Court\u27s conclusions about this aspect of the nature of sentencing. But the Court\u27s vision of the nature of sentencing is not limited to issues of institutional balance of power in adjudicating facts. It strikes at an even deeper theoretical controversy concerning the most basic objectives of criminal sentencing. Imposing a sentence upon a convicted offender also requires the determination of the punishment values of the facts and circumstances that exist in any given case. That is, it must be decided how much weight each proven fact carries in assessing the severity or leniency of the punishment appropriate to the particular offense and offender. Beneath all discussions of sentencing reform lurk two fundamentally irreconcilable normative positions regarding the objective to be pursued in making determinations of the punishment value of facts. One maintains that justice is served by ensuring that the appropriate degree of individualized punishment is imposed based on the particular facts and circumstances of each case. The other, a prominent legacy of contemporary sentencing reform debates, maintains that justice is served by ensuring systemic equality across all cases so that similarly situated defendants are given similar sentences. Just as it has imposed a certain vision of the institutional balance between judges and legislatures, so too the Court has restricted attempts to reconcile these competing normative positions. For all its silliness, then, the Court\u27s canine metaphor-that the sentencing tail must not wag the offense dog -nonetheless successfully isolates the fundamental issue of constitutional criminal procedure involved in the Apprendi line of cases, the constitutional law of sentencing, and debates about sentencing reform generally. The offense of conviction has paramount status; sentencing is a secondary, derivative enterprise. The tail is important, but ultimately it is the dog that is in control. So too with the constitutional law of sentencing, which must ensure that the offense of conviction wags the sentence, and not the other way around. The metaphor also helps to illustrate the flaws in the constitutional law of sentencing promulgated by the Court. The terms of the debate about the reasoning of the Apprendi line of cases and the future of sentencing reform must be changed. Discussion of Sixth Amendment formalisms must be replaced with deliberation over the proper institutional balance of power in criminal sentencing. Likewise, debate over procedural requirements for adjudicating facts must not be allowed to obscure the deeper controversy over the objectives to be pursued when determining the punishment values of those facts. Otherwise the Supreme Court\u27s unilateral imposition of particular doctrinal and normative choices-about what counts as the dog and the tail, and what counts as unconstitutional wagging-will go unanswered
Taxation of Profit Interests and the Reverse Mancur Olson Phenomenon
Get PDFThe Article proceeds from this point through four acts, each of which highlights, largely without subjective judgment whenever possible, the rent-seeking and rent extraction motivations animating the outcomes. Indeed, the Article agrees with the idea that rent seeking and rent extractions are rational behaviors and indeed may even have a legitimate place in tax law. So, in Act I the Article describes the law as it came to be as a result of Diamond v. Commissioner, a relatively small dollar amount case that challenged the unstated political compromise theretofore existing. Diamond and its aftermath provide the first evidence of successful rent-seeking behavior in the tax code with regard to the taxation of profit interests. The case expressed before-the-fact agreement with Fleischer\u27s proposal.\u27 8 Indeed, the legal outcome initially confirmed that rent-seeking would not prevail over sound tax policy. Surprisingly, that is if one ignores rational rent-seeking behavior as a determinate of tax law, the government promptly gave away that confirmation. The give-away was so stark that the judiciary once rejected the government\u27s concession. When, in a case subsequent to Diamond, the IRS attempted to disavow its policy-justified victory, that court explicitly rejected the disavowal. Even in that instance, though, the manner in which the court rejected the rent seeking outcome made possible by the government\u27s attempted disavowal left open the possibility that rent-seeking would eventually be rewarded
Retaliatory Harassment: Sex and the Hostile Coworker as the Enforcer of Workplace Norms
Get PDFThis Article focuses on the legal treatment of retaliatory harassment claims. It argues that retaliatory harassment is an often misunderstood and underanalyzed concept in the law of workplace harassment. This Article seeks to distinguish the legal treatment of retaliatory harassment from sexual harassment. Part I of this Article describes the use of harassment as a method of enforcing workplace norms; it details how harassment is used not just to further a worker\u27s own individual sexist (or racist) agenda, but how it is used to keep women (and minority groups) in subordinate positions. Part II describes the current legal frameworks for analyzing workplace harassment cases. Part III discusses the limits of the current frameworks. Part IV proposes the creation of an independent cause of action for retaliatory harassment and describes how such a claim would operate
The Theory and Practice of Partnership Taxation, Second Edition
No full textThis text has two specific goals. One goal is that students learn an existing scheme of taxation, whether the course involves individual, partnership, corporate, or estate and gift taxation. The second goal is that students learn the theory language and syntax of the Code and regulations so that they can teach themselves, clients, judges, and legislators new schemes of taxation as the need arises. The second goal also provides students with the tools to fix or intelligently apply existing schemes as unfamiliar situations arise in their lives as tax professionals. This text focuses almost exclusively on primary sources--the code and regulations--to achieve both pedagogical goals.https://commons.law.famu.edu/faculty-books/1053/thumbnail.jp
The Foundations of Section 1983 Jurisprudence: A Look from the Concept of Law
Get PDFThis article uses the theories of H.L.A. Hart to provide an interpretive framework for a vital civil rights statute, 42 U.S.C. Sec. 1983. Any interpretation of Sec. 1983 requires some sense of the fundamental nature of law and the ability to identify legal rules. Specifically, this article examines the under color of language of Sec. 1983 and the statute\u27s application to municipalities. It is possible that these areas remain partially in flux or undeveloped because the Court lacks an interpretation of the statute that accounts for how rules can confer power, create artificial persons, delegate the ability to act with the power of the state, and cause others to believe that actions are occurring under state sanction. Hart\u27s inclusive legal positivism can provide a comprehensive approach to identifying legal rules, and thus, also provides a way to interpret laws that call for identification of other laws. Additionally, Hart\u27s concept of the internal point of view provides a way to interpret the under color of language of Sec. 1983 that better differentiates that language from state action. Thus, Hart\u27s The Concept of Law is a perfect launching point for the application of the philosophy of law to problems of identification such as those found in Sec. 1983 jurisprudence. By way of introduction, the first several sections of this article present the history behind Hart\u27s theories and a basic overview of Hart. The later sections of the article discuss the Supreme Court\u27s rulings on under color of and municipal liability and possible explanations and expansions on those rulings through inclusive legal positivism
