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iSpy: Threats to Individual and Institutional Privacy in the Digital World
No full textWhat type of information is collected, who is viewing it, and what law librarians can do to protect their patrons and institutions
How Can the Supreme Court Not “Understand” Patent Law?
Get PDFThe Supreme Court does understand patent law. This invited Essay responds to Federal Circuit Judge Dyk’s remarks at the Chicago-Kent Supreme Court IP Review, in particular, his observation that the patent “bar and the academy have expressed skepticism that the Supreme Court understands patent law well enough to make the governing rules” (a view Judge Dyk did not endorse). The idea that the Supreme Court does not understand the law of patents is implausible. Even more generous interpretations of this criticism – that the Supreme Court insufficiently understands innovation policy, insufficiently understands the patent system that Congress desired in creating the Federal Circuit, or insufficiently understands the technical facts to resolve patent issues – do not hold up under closer scrutiny. Rather, those leveling this charge against the Supreme Court are mistaking policy disagreement for a lack of understanding. This mistake, even if one primarily of rhetoric, has potentially negative consequences for understanding the role of patent law, promoting productive debates about patent law and policy, and preserving the Supreme Court’s legitimacy in patent law and patent law’s (perhaps limited) contribution to the constraints imposed by legal authority in our society
Vol. 34, No. 3
Get PDFCollision Course of Legal Obligations: FOIA, Collective Bargaining and Privacy Considerations: by Jeffery M. Brown
Recent Developmentshttps://scholarship.kentlaw.iit.edu/iperr/1091/thumbnail.jp
Horsing Around with \u3ci\u3eDobson\u3c/i\u3e and \u3ci\u3eChevron\u3c/i\u3e: Tax Deference in \u3ci\u3eRoberts v. Commissioner\u3c/i\u3e
Get PDFIn the late 1990\u27s and 2000\u27s, Merrill C. Roberts of Indiana ventured into horse racing. Eventually he chose to deduct losses associated with his horse racing as ordinary and necessary business expenses. The IRS issued a notice of deficiency to Roberts, contending that he was liable for taxes and penalties for those years because he was engaged in horseracing as a hobby rather than a business. He therefore could not deduct expenses associated with the activity under Section 183 of the Internal Revenue Code.
The Tax Court analyzed the case using factors set forth in Treasury Regulation Section 1.183-2, which provides guidance on activities not engaged in for profit. The analysis concluded Roberts did demonstrate profit objective for 2007 and 2008, but that he did owe tax for 2005 and 2006. Strangely not mentioned in the opinion is section (c) of the regulation, which contains demonstrative examples of its application. One of the examples matches the facts of Roberts\u27 case almost to a T and seems incredibly likely that this example influenced the Tax Court\u27s decision. Roberts appealed to the Seventh Circuit.
Deference issues in the federal tax context have been The controversial 1943 United States Supreme Court case Dobson v. Commissioner stands for the principle that appellate review of decisions of the United States Tax Court (then the Board of Tax Appeals) should be extremely limited and that they should only be reversed when the Court had made a clear-cut mistake of law. The decision drew strong criticism and eventually the United States Congress overturned the so-called Dobson rule . In practice, however, the Dobson rule seems to have had a lingering effect. Several courts of appeals have made reference to the Tax Court\u27s specialized knowledge of the Internal Revenue Code and have afforded its opinions more weight.
Chevron deference has also left its imprint on tax litigation. The Supreme Court\u27s 1984 decision in Chevron U.S.A. Incorporated v. NRDC stands for the principle that courts should defer to agency interpretations of statutes where those interpretations are reasonable. In Mayo Foundation for Medical Research v. United States, the Supreme Court affirmed that Chevron deference should apply to interpretations of the Internal Revenue Code by the Department of the Treasury and the Internal Revenue Service.
Some scholars have argued that Chevron deference in federal tax is on the decline. Perhaps the Seventh Circuit\u27s dismissive attitude toward both the Tax Court\u27s reasoning and the Treasury\u27s regulatory guidance is an indication that this is true. A stronger stance by the Department of the Treasury on the weight of its own regulations might grant tax litigators more clarity moving forward
Pedophiles Don’t Retire: Why the Statute of Limitations on Sex Crimes Against Children Must Be Abolished
Get PDFSex crimes against children are uniquely heinous. Victims suffer extensive trauma that extends long into adulthood. But despite significant psychological data that indicates survivors of childhood sexual abuse cannot and do not report their victimization on a neat and predictable timeline, sixteen states still require them to do so. Criminal statutes of limitations on sex crimes against children protect predators, permitting them to run out the clock and move on to their next victim. This Note will argue that placing the burden on survivors of sexual abuse to report in time is not only psychologically unreasonable, but also harmful to society. State legislators must abolish their criminal statutes of limitations on sex crimes against children and permit adult survivors of childhood sexual assault to come forward
Quacking Like a Duck? Functional Parenthood Doctrine and Same-Sex Parents
No full textPart I of this article introduces the tension between constitutionally protected parental autonomy rights and functional parent doctrine by examining the constitutional rights of parents. This examination demonstrates how the marital status of a parent has a substantial impact on the strength of that parent\u27s constitutional rights. In cases in which there are two unmarried (never married or divorced) parents, neither parent has particularly robust constitutionally protected autonomy rights because both parents have competing constitutional rights that must be balanced against each other. Each parent has the right to invoke a court\u27s jurisdiction in vindication of his or her own parental rights. Functional parent doctrine exploits this weakness in an unmarried parent\u27s constitutional rights even though, for many of the extant legal parents in functional parent cases, there is no other legal parent.Part II of this article examines same-sex functional parent cases to demonstrate how courts weigh the importance of intent to share parental rights against the functional sharing of parental practices. When intent to share legal parentage is clear, most courts have little trouble granting parental rights based on function. When intent to co-parent is ambiguous and hard to discern, courts often – though not always – reject a functional approach. Those courts that have expressed a willingness to embrace a functional approach without clear indication of intent to co-parent do so because the judges find that the parties functioned as a family. In letting function trump or supplant intent, courts pay short shrift to the constitutional parental autonomy rights of the extant parent and discount an individual\u27s right to create a legal family that does not mimic the traditional heteronormative ideal. Some cases suggest that allegiance to the traditional notion of family is so strong that only if someone like Alice, an extant parent, clearly and expressly opts out of co-parentage will courts allow her to parent alone.Part IIIA of this article suggests that an opt-in system makes more sense. A recent proposal by Professor Leslie Harris to make Voluntary Acknowledgements of Parentage available to unmarried same-sex couples just as they are available to unmarried opposite couples would constitute such an opt-in system. A regime like this would establish a simple, intent-based registration system in which same-sex couples could mutually opt in to co-parentage. If parents want to be treated by the law as co-parents, they have to say so by executing a formal, though easy and inexpensive, document proclaiming their intent to co-parent. Opting-in puts the power and the burden to define family in the hands of family members themselves, not judges.Part IIIB explores the dangers attendant upon not adopting an intent-based registration system. Cases to date make clear that when using functional approaches to parenthood-when deciding whether a person has quacked like a parent-judges import gendered, dyadic and often genetic understandings of what family is and what families do. Because this approach determines what a parent is by looking at what a parent does, it inevitably relies on what parents have traditionally done. This results in judicial foci on stereotyped roles, binary romantic relationships and genetic contribution because these variables have been at the core of what families were and what families did. Judicial reinforcement of traditional understandings of parenthood make it more difficult for everyone to envision the kinds of responsible parenting that might be possible in a world in which reproduction need not and often is not sexual, marriage need not and often does not accompany parenting, and family members enjoy the security of knowing to whom they are legally bound