Copley v. United States involved a question at the intersection of tax law and bankruptcy law: can a debtor invoke bankruptcy exemption rules to shield an anticipated income tax refund from offset by the Internal Revenue Service? When the Fourth Circuit Court of Appeals was presented with this question of first impression — a question that has divided bankruptcy courts in recent years — it held that the IRS right of offset prevails over the debtors’ right of exemption. To date, Copley is the only circuit court opinion that rebuffs the so-called “majority view” on this question while also explicitly finding the income tax refund to be part of the bankruptcy estate. The stakes are significant for the IRS as a creditor, and this outcome underscores the primacy of tax offsets as a collection tool for the agency. As this essay describes, bankruptcy lawyers and tax lawyers alike need to be aware of this decision and the practical implications thereof so that they can advise debtors accordingly.
In 2019, a federal court of appeals, sitting en banc, decided Manning v. Caldwell, 903 F.3d 264 (4th Cir. 2019). The question in Manning was the constitutionality of a Virginia statute providing for a civil process of adjudicating an individual a “habitual drunkard.” A person so designated was subject to unique criminal penalties for obtaining or even possessing alcoholic beverages. A group of homeless Virginians challenged it, alleging that they were literally unable to comply with the criminal prohibitions or avoid apprehension because of their addiction and homelessness: their arguments were that the statute was void for vagueness, and (as to them and others similarly situated) a violation of the Eighth Amendment under Robinson v. California, 370 U.S. 660 (1962). A sharply divided Fourth Circuit held that both arguments were sound, and the law unconstitutional. One of the judges in the minority, Judge J. Harvie Wilkinson, III, filed two dissents, one laying out the reasons for his dissent that all but one of the dissenters joined, and a second (joined by no one else) justifying the tone of his principal dissent in response to a concurring opinion that objected to his language. This essay argues that Manning’s significance goes beyond its undeniable importance to individual Virginians and state officials. Judge Wilkinson’s two opinions portray the majority’s conclusions as indefensible, an egregious act of judicial arrogance that “usurps the American Constitution” in order to implement the majority’s own policy preferences. The justification for his extraordinarily harsh language about his colleagues, whom he says he admires, is that the decision is not simply an error but a tremendous blow to the Constitution and to American democracy. As my essay attempts to show, this is a bizarrely hyperbolical description of Manning: there are reasonable legal arguments for and against the two constitutional claims, and the majority’s reasoning is therefore hardly indefensible even if, on balance, one is unpersuaded. This raises the question why Judge Wilkinson, a seasoned and well-respected appellate judge, came to view the decision as he did, and to use language inconsistent with even minimal politeness to his colleagues. The answer Judges as Superheroes develops is that the analytical oddity and rhetorical tone of Judge Wilkinson’s opinions is not a momentary lapse by an individual judge, but an indication that a long-standing problem with constitutional disagreement on the Supreme Court is spreading to the federal courts of appeals. For decades it has been common for the justices, particularly in writing dissents, to portray the positions they reject as not just mistaken but as fundamentally illegitimate, incapable of swaying any judge respectful of the limits on the judicial function. Cases involving deep disagreement are, therefore, not so much divisions of opinion among lawyers all committed to the common enterprise of resolving legal disputes, but victories or defeats in a cosmic struggle between constitutional Good and Evil. This apocalyptic view, I maintain, is erroneous and destructive. Manning suggests that circuit judges too, are succumbing to the temptation to see themselves as superheroes battling for the Right against colleagues who are, inevitably, champions of Wrong. The decision’s broader significance is as a warning, for judges and for all of us, that our system of judicial review rests on a less-inflated understanding of the role of judges in constitutional cases.
This article takes the form of an epistolary exchange across the centuries, comparing and contrasting two noted wills in Victorian literature. The first of these testaments is the final will of Dr. Henry Jekyll, in Robert Louis Stevenson’s The Strange Case of Dr. Jekyll & Mr. Hyde; this will bequeaths the doctor’s estate to his friend and attorney, Gabriel John Utterson. The second testament is the putative will of Jonas Oldacre, in Arthur Conan Doyle’s The Adventure of the Norwood Builder; this will bequeaths Oldacre’s estate to the young solicitor who drafted the will, John Hector McFarlane. Taken together, these two testaments raise the issues of the testator’s capacity and intent to make the will, undue influence and bequests to attorneys (notably to the drafting attorney), due execution of the will, and the effect of the beneficiary’s possible murder of the testator. A comparison of these two fictional Victorian-era wills remains relevant today because the legal issues that these two testaments raised in 19th century England are still very much present in 21st century America.
Over the past few decades, animal welfare groups and others have exposed the immense cruelty that humans inflict on animals. Despite this, the United States has been slow to criminalize comprehensively and penalize appropriately human cruelty towards animals. This is attributable to the lack of consistent, coherent definitions of animal cruelty, and established, considered jurisprudence regarding the objectives and principles that should inform the sentencing of animal cruelty offenders. As a consequence, there is a lack of uniformity and coherence regarding the sentencing of animal cruelty offenders. This Article addresses this under-researched area of law and proposes an overarching definition of animal cruelty and a rational sentence framework for the sentencing of offenders who commit acts of animal cruelty. We recommend the development of a classification of animal cruelty offenses that differentiates between animals on the basis of their sentience, and encapsulates the varied nature of such offending. Further, we suggest that, in sentencing animal cruelty offenders, courts should pursue the objectives of community protection and rehabilitation to some degree, but most importantly they should attempt to impose penalties that reflect the principle of proportionality, which provides that the harshness of the sanction should match the seriousness of the offense. We also argue that both classification and sentencing of animal cruelty offenses should be informed by: (i) scientific evidence of animals’ physiology and psychology (which helps explain the nature of animal cruelty); (ii) social norms regarding human interaction with animals; and (iii) moral theory (which establishes why it is ethically imperative to protect certain animals from human cruelty). The reform proposals advanced in this Article will make this area of the law more consistent and coherent, and often result in the imposition of harsher sentences on animal cruelty offenders.
Crashworthiness cases often involve the following issue: Should any wrongdoing by the plaintiff in causing the initial collision reduce or bar the plaintiff’s recovery for defective crashworthiness? Jurisdictions disagree on the answer to this issue. This disagreement results in large part from differing positions on two questions. First, should products liability law use duty rules to impose liability in a way that ensures efficient accident cost reduction or should it seek fairness through relatively unstructured jury allocations of liability based on fault? Second, in addressing the first issue, should for-profit corporations be viewed as: (1) “tools” to achieve human goals like efficient reduction of accident costs or (2) “persons” entitled to fair treatment in the same way as humans. Relying on an analysis of doctrine, history, and policy, this Article argues (1) that for-profit corporations are tools, not persons with moral rights, and (2) because these corporations are not “moral persons”, the concern for efficient reduction of accident costs by internalizing the cost of injuries from product defects to corporations should prevail over a concern for “fairness” to these corporations in allocating accident costs. Therefore, because reducing manufacturers’ liability for crashworthiness also reduces the efficient internalization to manufacturers of the cost of their failure to provide cost-effective safety, the plaintiff’s role in causing the initial accident should be irrelevant to plaintiff’s claim for defective crashworthiness. This concern for internalization also supports the expansion of plaintiff’s rights in other areas of liability for defective vehicle design.
The number of displaced people in the world is at a record high. Governments around the world have been unable to find a mechanism for dealing with the rising tide of desperate people leaving their country of origin in search of a safe destination for them and their families. Approximately one third of the 60 million displaced people are refugees. The legal instrument that has for the past six decades provided the platform for facilitating asylum for more displaced people than any other is the 1951 Convention Relating to the Status of Refugees (“Refugee Convention”). Regrettably, some of the limitations in this instrument relating to the definition of a refugee unfairly and arbitrarily preclude many deserving people from being granted asylum in countries which have the clear capacity to absorb them. The current displaced person crisis should result in a critical reflection of the operation of the Refugee Convention with a view to expanding the people who come within its scope. In order for a person to qualify as a refugee they must be in fear of persecution for one of five designated and precise reasons, namely: race, religion, nationality, political opinion or membership in a particular social group. The most obscure and unsettled refugee ground is ‘membership of a particular social group’. In this article, I examine the meaning of this concept and argue that it has been defined too narrowly, resulting in large numbers of people being excluded from the potential sanctuary that is offered by the Convention. I propose a broader definition, which contrary to existing orthodoxy does not require the trait which underpins membership of the group to be an immutable characteristic. In doing so, I draw upon jurisprudence in other countries (especially Australia) regarding the meaning of particular social group. The outcome of my proposed reform is that the Refugee Convention will provide a pathway to many more people being granted asylum in a manner which is consistent with the underpinning and intention of the Convention. In addition to this, which is the second key reform proposal in this article, the United States should proactively settle many more displaced people that are currently located in refugee camps around the world. It should lift its quota approximately five-fold to 500,000 people per year. This is commensurate with the economic and social capacity of the United States to absorb more destitute people and would set a desirable example for other first world countries, thereby significantly ameliorating the displaced person crisis. My proposal will not provide a total solution to the displaced person crisis, however the approach I take in this article will hopefully provide a catalyst for a more critical and humanistic approach and reinterpretation of other potential pathways for displaced people to gain asylum.
Ongoing, systematic research on civil legal needs and services is an essential component of improving the quality and availability of such services. Collaboration among researchers, legal services providers, and regulators will only become more important as innovations in the delivery of legal services progress. This volume brings together sixteen white papers by subject matter experts who assess what we and need to know about various aspects of civil legal services delivery. The product of a partnership between the South Carolina Law Review and the ABA Commission on the Future of Legal Services, the collection is intended to serve as a resource for policymakers and legal services providers, and to identify issues and priorities for further research.
