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First Bite and the Private Benefit Doctrine: A Comment on Temporary and Proposed Regulation 53.4958-4T(a)(3)
Get PDFThe purpose of this article, then, is first to show how the Service\u27s concession to the first bite rule, without a corresponding restatement of the private benefit doctrine, renders the public powerless to prevent a charity\u27s distribution of profit in certain significant circumstances. In the absence of corrective action, the more aggressive and savvy charities will quickly recognize and exploit the loophole. Second, the article discusses and refines a proposal I have previously made concerning a restatement of the private benefit doctrine in a manner that would close the loophole. Since the private benefit doctrine is very closely related to the prohibition against profit distribution (yet distinguishable nevertheless), it seems only logical that a revision of one rule would occasion a reconsideration of the other. In Part II, I briefly outline the facts and holding of United Cancer Council, Inc. In Part III, I summarize the details of Temporary/Proposed Regulation § 53.4958-4T(a)(3) and provide some speculative predictions from the viewpoint of a charity that seeks to circumvent the prohibition against profit taking. In Part IV, I compare the Service\u27s formal and informal articulations of the private benefit rule and conclude that the informal articulation is better. In Part V, I redefine and restate the doctrine of private benefit in a manner that addresses the distribution of profit much more predictably than would the present formal articulation of that doctrine
Conflict Prevention, Management, and Resolution: Africa--Regional Strategies for the Prevention of Displacement and Protection of Displaced Persons: The Cases of the OAU, ECOWAS, SADC, and IGAD
Get PDFThis Article seeks to examine the preparedness of certain African regional actors to protect displaced persons in times of armed conflict, and to prescribe formulas to strengthen the capabilities of such actors. The objective is to assess the conflict maintenance capacities of African regional actors and their partners to provide physical and legal protection to displaced persons in times of armed conflict, and likewise to recommend strategies to increase protection
When Charity Aids Tax Shelters
Get PDFHow to deal with societal vice is always an interesting question. The body politic must first achieve a level of maturity that allows it to formulate a consensus regarding precisely what constitutes vice. By its nature, vice is an activity to which some ascribe no harm and others view as inherently harmful. Achieving consensus is therefore no easy task, and then, recognizing that supply would not exist but for demand, and vice-versa, the body politic must determine whether enforcement resources are best directed towards consumers, towards producers, or equally towards both. Here, questions of fairness and efficiency arise. Is it fair, for example, to direct enforcement measures towards the producer when other socio-economic factors prevent the producer from satisfying its needs in a more legitimate manner? Does it make sense to bring enforcement measures solely against the consumer and not at all against the producer of vice? A war on consumers might be absurdly ineffective if the enforcement resources devoted thereto pale in comparison to the enforcement resources devoted to producers
Constitutional Formalism and the Meaning of Apprendi v. New Jersey
Get PDFIn June 2000, the United States Supreme Court decided Apprendi v. New Jersey,\u27 a case that likely will have a significant impact on the administration of criminal justice in federal and state courts. The Court imposed a procedural limitation on prosecutors by restricting the types of facts that may be proven at sentencing rather than at trial. Specifically, the Court adopted a constitutional principle that any fact that increases the penalty for a crime beyond the prescribed statutory maximum is an element of the offense of conviction. Under wellestablished constitutional doctrine, the Constitution\u27s full procedural protections, especially the necessity of proof beyond a reasonable doubt to a jury at trial, apply to elements of offenses.4 Unless the Court intends to abrogate the long history of both legislative power to determine the appropriate range of punishment for crimes and judicial discretion to exercise judgment and consider additional facts in imposing a sentence within the range established by statute, however, the Court must have a specific understanding, or more accurately a definition, of what constitutes a fact that increases the penalty for a crime beyond the prescribed statutory maximum. The Court does have such a definition, albeit one that is highly formalistic and strictly limited. For that reason, the Court\u27s definition, and the principle that depends upon it, is susceptible to a strong attack that it illogically and unnecessarily exalts form over substance in a manner inconsistent with the Constitution and the Court\u27s precedent. In Apprendi, both the dissent and the United States as amicus curiae launched that attack - the dissent going so far as to call the Court\u27s principle a meaningless formalism. This Article considers the formalism of any fact that increases the penalty for a crime beyond the prescribed statutory maximum as it appears in the Apprendi Court\u27s principle and underlying definition. Part I briefly reviews the background to the Apprendi decision and the underlying doctrines of constitutional criminal procedure implicated by the Apprendi principle. Part II frames the issue in Apprendi by discussing the majority\u27s principle and definition and the dissent\u27s attack on them. Part III considers an example of an important statute - 21 U.S.C. § 841, the principal federal drug offense - on which the Apprendi principle has a substantial impact, and concludes that the Apprendi principle, though formalistic, is a necessary addition to the Court\u27s doctrines of constitutional criminal procedure
It’s All About What You Know: The Specific Intent Standard Should Govern Knowing Violations of the Clean Water Act
Get PDFPart I of this Article examines the historical and conceptual foundations of the specific intent standard as applied both outside and within the environmental law context. Part II addresses the historical and conceptual foundations of the general intent standard, also outside and within the environmental law context. Part III reviews the history of the conflict between application of the specific intent and general intent standards in prosecutions for knowing violations of the Clean Water Act. Part IV presents arguments that support application of the specific intent standard to knowing violation cases under section 309(c)(2)(A) of the CWA. Part V analyzes the Ninth Circuit\u27s decision and the United States Supreme Court\u27s denial of certiorari in United States v. Hanousek
Job Reference Immunity Statutes: Prevalent But Irrelevant
Get PDFThis Article posits that current reference immunity statutes are of little use in encouraging employers to provide references. Although legislation ostensibly protects employers in most states, name, rank and serial number, no-comment, and neutral reference policies continue to prevail as standard practice regarding job references. Generally, the existing statutes leave the common law in place, so that reference claims may be adjudicated under statutory standards and common law standards. This Article proposes that the field would be clarified if the statutes were the exclusive law governing liability for job reference claims under state law
There\u27s No Crying in Baseball : Sports and the Legal and Social Construction of Gender
Get PDFThis Article analyzes the view that to be taken seriously as an athlete, women must replicate the behaviors prevalent in male-dominated sports. The Article focuses on sports in the educational context as an important opportunity for legal intervention. Because the law involves the allocation of resources and the policing of behavior by the government, this discussion prompts us to ask how resources should be allocated and what kinds of behavior should be encouraged and discouraged in promoting gender equity. In particular, the analysis of sports within educational programs offers an opportunity for a critical examination of current models of athletic participation that foster an environment in which harassment often occurs
The American \u27Legal\u27 Dilemma: Colorblind I/Colorblind II--The Rules Have Changed Again: A Semantic Apothegmatic Permutation
Get PDFOur Constitution is colorblind initially meant that white majority preferences could not and should not be reflected in government action. The maxim now means race should not be reflected at all in government action. The answer to racism lies somewhere between well-reasoned blind hope and historically-proven skepticism. Part I of this Article discusses the ideal of the colorblind society; Part II discusses what this Article deems as Colorblind I. Part III places each colorblind argument in perspective, and seeks to illustrate that the concept of colorblindness could be an ideal, but has rather become meaningless rhetoric in an endless racial struggle that has defined this country. Part IV serves as a summary of the Article highlighting the common feeling that the legal rules reflecting society\u27s attitude on racism have changed again
The Establishment of a U.S. Federal Data Protection Agency to Define and Regulate Internet Privacy and its Impact on U.S.-China Relations: Marco Polo Where are You?
Get PDFMarco Polo\u27s desire to explore new worlds and exchange both ideas and goods should be the impetus behind the Internet. The Internet is the global economic network of the new millennium. This Article first discusses the factors that have caused both the reevaluation of Western notions of privacy, and consideration of the establishment of a Federal Data Protections Agency. Next, the article discusses the EU\u27s approach to regulating Internet privacy. This section is followed by a discussion of why the U.S. and EU approaches to Internet privacy regulation must be implemented from a global, or MarcoPolo-like perspective. The article then discusses how the premature establishment of a Federal Data Protection Agency to regulate Internet privacy may hamper U.S.-China relations. In conclusion, I articulate the particular concerns of regulating Internet privacy and demonstrate how the U.S.-China dispute about the Internet Corporation for Assigned Names and Numbers ( ICANN ) will resurface around online privacy if the U.S. engages in unilateral development of online privacy rules