With limited resources and a diminished budget, it is not surprising that the Internal Revenue Service would seek new tools to maximize its enforcement efficiency. Automation and technology provide new opportunities for the IRS, and in turn, present new concerns for taxpayers. In December 2018, the IRS signaled its interest in a tool to access publicly available social media profiles of individuals in order to “expedite IRS case resolution for existing compliance cases.” This has important implications for taxpayer privacy. Moreover, the use of social media in tax enforcement may pose a particular harm to an especially vulnerable population: low-income taxpayers. Social science research shows us that the poor are already over-surveilled, and researchers have identified various ways in which algorithmic screening and data mining can result in discrimination. What, then, are the implications of social media mining in the context of tax enforcement, especially given that the IRS already audits the poor at a rate similar to which it audits the highest earning individuals? How can these concerns be reconciled with the need for tax enforcement? This article questions the appropriateness of the IRS further automating its enforcement tactics in ways that may harm already vulnerable individuals, makes proposals to balance the use of any such tactics with respect for taxpayer rights, and considers how tax lawyers should advise their clients in an era of diminishing privacy.
The Model Penal Code’s default culpability provision, Section 2.02(3), plays a central but often overlooked role in the Code’s celebrated culpability scheme. Section 2.02(3) “reads in” a requirement of recklessness when an offense is silent about the mental state required for an offense element. The provision has profound implications for criminal law because thousands of state offenses fail to prescribe culpability requirements. Without a default culpability rule like Section 2.02(3), courts often interpret an offense’s silence to impose strict liability. Section 2.02(3) has had little effect to date, but not because courts have ignored it. Rather, Section 2.02(3) has yet to be fully adopted even in Model Penal Code states. Reviewing the law in the 25 states with culpability provisions influenced by the Code, this Article finds that the overwhelming majority of jurisdictions have deviated from Section 2.02(3) in ways that undermine the Code’s culpability scheme. The Article concludes by recommending new default culpability rules that improve on Section 2.02(3), prevent the problems experienced in Model Penal Code states, and establish a strong presumption of recklessness that works for real-world statutes.
Relevancy decisions, according to the prevailing view, are matters of probability, whether a given piece of evidence makes any legal proposition more (or less) likely to occur. This view has long held sway, from the early rationalist scholar James Bradley Thayer through the codification of formal rules of evidence, supplanting the common law’s acceptance of witness-framed narratives. But a purely logical analysis, one famously framed in terms of a mathematical equation, seems ill-suited for trial decisions. And the Probabilistic Paradigm often excludes context necessary for a party to present its case. This Article brings together two areas of scholarship that challenge a purely logical approach to relevancy decisions. Drawing on cognitive science and philosophy, the Explanatory Paradigm offers an effective critique of making admissibility decisions based on probabilistic formulas. This model also provides robust criteria for judging explanations. The Explanatory Paradigm, though, gives little attention to the role of narrative, a concern at the heart of Applied Legal Storytelling. This Article aims to correct this oversight. Applied Legal Storytelling’s insights on narrative and context, combined with the criteria of the Explanatory Paradigm, offer a workable alternative to the Probabilistic Paradigm. This project, in important ways, restores the common law’s embrace of witness stories as a way to determine the truth.
Allergens in restaurant food cause many allergic reactions and deaths. Yet no federal, state, or local law adequately protects people from these harms. Although federal law requires the labeling of “major food allergens” in packaged food, there are no allergen labeling requirements for restaurant-type food. In addition, existing food safety requirements for restaurants are inadequate to prevent allergen cross contact. The existing legal scholarship on food allergens in restaurants is limited. Much of the legal scholarship on labeling in restaurants focuses on menu labeling — the provision of calorie and other nutrition information to combat obesity. The requirements of Section 4205 of the Patient Protection and Affordable Care Act exemplify this type of labeling. Although the literature describes the problem of foodallergens in restaurants, it has not fully explored potential regulatory solutions. This Article explores how, as a first step, menu labeling regulation can inform the development of food allergen regulation to reduce the risks that allergens pose in restaurants and similar retail establishments. It also discusses how menu labeling can help anticipate and respond to potential opposition and challenges to allergen requirements. Using menu labeling as a guide, this Article argues that certain chain restaurants and similar retail establishments should be required to furnish “major food allergen” labeling upon consumer request in order to advance public health. Labeling changes alone, however, are insufficient to protect people with food allergies. Restaurants should also be required to employ science-based practices to prevent allergen cross contact and ensure their workers are trained on food allergen management. Although state and local governments may play an important role addressing food allergen management in restaurants and advancing public health, ultimately federal action is needed.
The use of authority in legal argument is constantly evolving—both the types of information deemed authoritative and their degree of authoritativeness—and that evolution has accelerated in recent years with dramatic changes in access to legal information. In contrast, the uncontroversial and ubiquitous “hierarchy of authority” used as the cornerstone for all legal analysis has remained entirely fixed. This article argues that the use of the traditional hierarchy as the dominant model for legal authority is deeply flawed, impeding a deeper understanding of the use of authority in legal argument. Lawyers, judges, and academics all know this, and yet no scholarly treatment until now has tackled the problem. The traditional model of authority offers only two essential classifications: the distinction between binding (mandatory) and non-binding (persuasive) authority, and the distinction between primary and secondary authority. These two simplistic classifications are of limited use in answering critical questions about how legal authors actually construct legal analysis, and how and why they should. The weight of authority is not binary, the use of sources is not static; and the current legal culture countenances reliance on just about any source. Yet, surprisingly, there has been little effort to update the model of legal authority: the hierarchy metaphor and its exclusive focus on “binding” authority stands virtually unchallenged as a proxy for the value of legal sources. This article proposes that we shift to a holistic, pluralistic view of legal authority in order to better understand its many complexities, thereby dethroning the hierarchy as the ruling principle of authority.
This article focuses on a pressing issue of national importance related to attorney conduct (or misconduct). The Litigation Privilege is a long-recognized immunity fashioned for attorneys to enable them to perform their functions as zealous advocates and litigators, without having to consider prospective non-client lawsuits aimed at their conduct in the course of representation. However, recent case law purports to expand the Litigation Privilege outside of its traditional contexts, posing a nationwide threat to attorney ethical standards. Broad readings of what sorts of legal assistance constitute “litigation” for the purposes of the application of the Litigation Privilege have recently been handed down by key courts, and the battle over whether fraudulent conduct on the part of attorneys may be covered under the Litigation Privilege continues to rage. This article analyzes these issues critically, asserting that these broad readings of the Litigation Privilege must be curtailed. Such attorney misconduct should not be shielded from aggrieved non-client redress. This article is a timely, nationally relevant contribution on the importance of “ethical lawyering” and how a fundamental legal doctrine should best effectuate its objectives.
The startup industry has matured rapidly over the past decade, becoming a subject of substantial interest to the business community, academics, and the general public alike. Yet, the set of organizations that has sprouted up around the startup industry – dedicated to supporting the growth of fledgling ventures – has received less attention. Divided roughly into the three categories of co-working spaces, incubators, and accelerators, these support organizations all aim to “catalyze” the success of new startups. Thus, we have coined the term “Catalyst” to refer to them collectively. In the present study, we used a qualitative interview method to obtain a more comprehensive picture of how Catalysts have impacted the entrepreneurial ecosystem. In particular, we found a discrepancy between the narrative propagated by Catalyst personnel and the actual data when it came to the issue of gender. While respondents described a collaborative, open environment cultivated by Catalysts that should be particularly advantageous to women, we found that the stark gender disparity observed in the startup and technology realms in general was maintained in the Catalyst microcosm. We speculate as to possible reasons behind this disconnect between narrative and reality, and suggest policy approaches for alleviating the gender gap in the Catalyst participant population.
American agriculture is inexorably concentrating into the hands of a small number of large conglomerates. Expanding farms pursuing scale economies would also normally have to abide by a system of environmental and other laws that would, in theory, require farms to account for negative externalities. If those laws were observed and enforced, they would help strike a balance between the greater profitability and the larger externalities of larger farms. But these laws are not widely observed and not rigorously enforced, upsetting this balance and giving large-scale farms a cost advantage while insulating them from corresponding responsibilities. Perhaps nowhere in agriculture is this more visible than in the hog industry, which has dramatically transformed itself from one based on small-scale, localized production to one based on large-scale and far-flung production. Ninety-six percent of all hogs raised in the United States are now raised on farms of 1,000 or more hogs. Lax enforcement of environmental laws against large hog farms has allowed them to grow and realize scale economies without accounting for their exponential increase in water and air pollution. The same can be said for state Right-to-Farm laws, which insulate many large hog farms from nuisance lawsuits. Reckless practices in concentrated animal feeding operations contribute to the development of dangerously antibioticresistant bacteria and heighten the risk of a transfer of zoonotic diseases to humans, potentially helping to set the stage for next pandemic. Finally, the concentration of hog farming imposes economic costs by reducing competition and by marginalizing small farmers. Large conglomerates should be held to account for these enormous costs, not only because these costs vastly outweigh the productivity benefits, but also because it is important to preserve an industrial capacity to produce food in an alternative manner that generates far fewer and lower costs. a Larson Professor, Florida State University College of Law. The author would like to acknowledge the research assistance of the always-outstanding library staff at the Florida State University College of Law. IN DEFENSE OF, OR OFFENSIVE TO FARMS?
This article explains why claims made by Holland and Zachary in their article, Herd Immunity and Compulsory Childhood Vaccination: Does the Theory Justify the Law?, are incorrect and untenable. The authors misunderstand the nature of society’s duty to children, which is not similar to duty in torts but draws from the state’s role in protecting vulnerable children when their parents do not act in their best interests. Their view of herd immunity is also incorrect: the article does not well define the term, ignores data showing that herd immunity works, and their discussion of their two examples is inaccurate: close examination of those examples actually shows the role of herd immunity in protecting against disease. Finally, the authors’ analysis does not support their claim that mandates are unnecessary.
Proposing any major new federal initiative regarding water in the western United States might seem outlandish, given conventional wisdom and entrenched positions on state control of water resources. But there is a strong rationale, and a growing imperative, for a new federal water policy for the West. Many river basins face serious problems as limited water supplies are overallocated, demands continue to increase, and climate change promises to exacerbate the West’s perennial problems of scarcity and variability. Solutions to such problems are likely to be expensive, and will need to address national interests as well as state and local concerns. Like the first two eras of federal water policy — water project development, followed by environmental protection — the third wave will need to bring federal money to the table in proportion to the size of the problems to be solved. But that money will come with important conditions, helping to ensure that western water problems are resolved in a way that meets national needs. This article begins by summarizing the value of the federal role in western water management, then examines the first two waves of federal water policy, exploring how Congress employed a broadly similar approach to both building water supply projects and regulating water quality. It then turns to some indications of modern demands for federal involvement in western water issues, and concludes with some observations about important elements of a third wave of federal water policy for the West.
On August 5, 2014, the Federal Reserve Board and the Federal Deposit Insurance Corporation criticized shortcomings in the Resolution Plans of the first Systematically Important Financial Institution (SIFI) filers. In his public statement, FDIC Vice Chairman Thomas M. Hoenig said “each plan [submitted by the first 11 filers] is deficient and fails to convincingly demonstrate how, in failure, any one of these firms could overcome obstacles to entering bankruptcy without precipitating a financial crisis.” The first eleven SIFIs — Bank of America, Bank of New York Mellon, Barclays, Citigroup, Credit Suisse, Deutsche Bank, Goldman Sachs, JPMorgan Chase, Morgan Stanley, State Street Corp. and UBS — include some of the largest organizations in the world, with sophisticated internal and external teams of professional advisors. According to Jamie Dimon of JPMorgan Chase in 2013, it took 500 professionals over 1 million hours per year to produce JPMorgan Chase’s annual Resolution plan. With regulatory pressure increasing, that number is likely to be consistent or increasing across first-wave filers, and suggests significant spending by all filers. So why were the plans criticized despite heavy compliance investment? The Fed and FDIC identified two common shortcomings across the first 11 SIFI filers: “(i) assumptions that the agencies regard as unrealistic or inadequately supported, such as assumptions about the likely behavior of customers, counterparties, investors, central clearing facilities, and regulators, and (ii) the failure to make, or even to identify, the kinds of changes in firm structure and practices that would be necessary to enhance the prospects for orderly resolution.” We believe this regulatory response highlights, in part, the need for lawyers (and other advisors) to develop approaches that can better manage complexity, encompassing modern notions of design, use of technology, and management of complex systems. In this paper, we will describe the information mapping aspects of the Resolution Planning challenge as an exemplary “Manhattan Project” of law: a critical enterprise that will require — and trigger — the development of new tools and methods for lawyers to apply in their work handling complex problems without resort to unsustainably swelling workforce, and wasteful diversion of resources. Fortunately, much of this approach has already been developed in innovative Silicon Valley legal departments and has been applied by leading banks. Although much of the focus of the Dodd-Frank Act is on re-organizing and simplifying banks, we will focus here on the information architecture issues which underlie much of what should — and will — change about how law is delivered, not just for Resolution Planning, but more broadly.
Introduction 632 I. Background 634 A. The Federal Rules of Civil Procedure 634 B. What Went Wrong? 637 II. Reactions 642 A. Rule Changes 642 1. Early Efforts 643 2. The 1983 Amendments 644 3. The 1993 Amendments 645 4. The 2000 Amendments 649 5. The 2006 Amendments 650 6. The Proposed 2015 Amendments 651 a. Timing of Complaint and Scheduling Order ...... 651 b. Scheduling Conferences 652 c. Additional Topics for Scheduling Orders 652 d. Content of Discovery Plans 652 e. Accelerating the Timing of Document Requests 653 7. Summary 653 B. The Courts 653 1. Summary Judgment 654 a. Matsushita 655
Currently there are several pending antitrust suits challenging NCAA rules restricting the economic benefits intercollegiate athletes may receive for their sports participation. Although remedying the inherent problems of commercialized college sports (primarily Division I football and men’s basketball) is a laudable objective, a solution mandated by antitrust law may have unintended adverse consequences. Judicial invalidation of these rules may inhibit universities from providing many athletes with a college education they would not otherwise receive, by eliminating or reducing the value of scholarships for many players whose economic value is less than the cost of an education. A wholly free market for player talent will also severely limit universities’ ability to provide academic and athletic opportunities to thousands of women and men participating in nonrevenue sports, which are funded by surplus revenues from football and men’s basketball. Rather than professionalizing college sports through antitrust litigation or unionization, we propose an open and transparent system of federal regulation combined with antitrust immunity for reforms voluntarily adopted by the NCAA. To better promote the educational values and economic sustainability of intercollegiate athletics, our proposed Congressional intercollegiate athletics reform legislation would have three mandatory requirements: 1) at least a 4-year athletic scholarship with limited university termination rights; 2) medical care or health insurance for all sports-related injuries and scholarship extensions for injuries; and 3) elimination of the NCAA requirement that Division I universities operate at least 14 intercollegiate sports. It would create an independent commission to propose non-binding intercollegiate athletics regulations. NCAA and athletic conference conduct that complies with these regulations would receive antitrust immunity.
Social media have profoundly changed communications for our personal and professional lives, from social networking to job searching, to social movements and more. Facebook, Twitter, Linkedin, Pinterest, tumblr, instagram, blogs, as well as emerging social media concepts, have re-imagined our methods and means for speech, interaction and connection. Computers, iPads and smartphones are the means for this intense multi-platform engagement in social media, resulting in the blurring of work and personal time, on work and personal equipment as well as accounts. This further complicates the employment relationship as companies seek to protect their brand, trade secrets and employee communications by publishing social media policies (SMPs). In the context of unfair labor practice cases, the National Labor Relations Board has been reviewing employer social media policies and actions that interfere with rights that apply whether employees are in a union or not. This article outlines the top ten cases in this area to instruct employers and employees on what policies and comments are lawful or protected. The cases encompass employer policies that an employee would reasonably perceive to infringe upon employee rights to engage in National Labor Relations Act- protected concerted activities, and instances where an employee is disciplined or discharged for engaging in protected activity.
Introduction 156 I. The Economic Subsidy Theory of the Charitable Contribution Deduction 159 A. Nonprofits and Charities 160 B. Charitable Contributions 161 C. The Economic Subsidy Theory 162 D. Market Failures in Public Goods 163 E. Government Failures in Public Goods 164 F. Charitable Goods Resemble Public Goods 165 II. The Economic Subsidy Theory of Charity Law 166 A. Charity Law Solves Market and Government Failures in Charitable Goods 166 1. The Economic Subsidy Theory 166 2. The Problem of Free Riding 166 3. How the Deduction Solves Market Failures and Government Failures 167 4. Limits to Solving Market Failures and Government Failures 168 B. Vertical Equity and Distributive Justice 169 C. Charity Failures 171 1. What Is a Charity Failure? 171 2. Who Is Affected by Charity Failures? 172 III. Solving Charity Failures 175
