Approximately fifteen million adults live with severe mental illness in the United States. They are our neighbors, family, and friends. Often, concerned family members or professionals initiate guardianship proceedings to protect the assets and health of people experiencing severe mental illness. But guardianships subject people to a severe removal of individual rights. Guardians can decide where their ward lives, what medical care they can receive, and who they can associate with. People experiencing severe mental illness are uniquely ill-suited for an arrangement that restricts their autonomy because it exacerbates their illnesses, and their symptoms are more likely to go into remission as compared to people under guardianships for other reasons (e.g., old age, intellectual and developmental disabilities). Most people under guardianship do not experience improved health outcomes. As such, this Note argues to import a due process protection from civil commitment law to guardianship law to reduce instances of forced guardianships for people with severe mental illness. In civil commitment law, the imminence requirement limits the state & Ecirc;s ability to institutionalize people with severe mental illness; harm to self or others must be "imminent" for people experiencing severe mental illness to be civilly committed. This Note argues that the shared purpose, history, and effect of both legal doctrines justify importing the imminence requirement from civil commitment law to guardianship law. Using the imminence requirement in guardianship law would reduce instances of guardianship for people with severe mental illness and better identify only the most extreme cases those who are the most likely to benefit from guardianship. At a time when the rights of people with disabilities are under a great attack, states should shore up protection against unnecessary and harmful guardianships for people experiencing severe mental illness.
The Bank SecrecyAct, enacted in 1970, was intended in part to prevent American taxpayers from hiding funds in secret bank accounts overseas. At the time of the Act & Ecirc;s enactment, a former U.S. Attorney for the Southern District of New York named secret foreign accounts as the single largest loophole in American tax law. This problem persists today. Over the last two decades, several of the largest banks in Switzerland have paid billions in fines after admitting to helping American clients hide billions in taxable assets. Obtaining a bank account in a foreign jurisdiction like Switzerland is a luxury that is often only available to wealthyAmer-icans. To address this issue, the Bank Secrecy Act requires U.S. citizens who hold more than $10,000 in a foreign bank account to file a Report of Foreign Bank and Financial Accounts, or FBAR, with the Internal Revenue Service. Willful violations of FBARfilingrequirements carry penalties that can reach into the millions of dollars. While steep, these penalties serve the important purpose ofreimbursing the government for a portion of the massive sums ofmoney that are unlawfully concealed in foreign bank accounts to evade taxes. The First and Eleventh Circuits are split on the issue of whether these civil FBAR penalties are subject to the Eighth Amendment's Excessive Fines Clause. The scope of that clause turns on the question of whether a given penalty constitutes a & bdquo;fine parts per thousand in the first place. The Supreme Court has held that a penalty only qualifies as a fine when it serves as punishment for an offense. In United States v. Toth, the First Circuit ruled that FBAR penalties are remedial penalties, not punitive fines, that serve to reimburse the government for evasion and enforcement costs. The Eleventh Circuit declined to follow this ruling when it decided Schwarzbaum v. United States, instead holding that FBAR penalties are punitive and therefore subject to the Excessive Fines Clause. This Note argues that FBAR penalties are remedial. The Eleventh Circuit's decision is at odds with Supreme Court precedent, and future courts to rule on the issue should decline to adopt its interpretation. Civil FBAR penalties are not tied to any criminal conviction, are analogous to historically remedial customs and tax penalties, and they are designed primarily to reimburse the government for lost revenue and investigation costs. They are therefore nonpunitive and should remain outside the scope of the Excessive Fines Clause.
In the United States, investment income (e.g., capital gains, dividends, interest) is favored over earned income (e.g., salary, self-employment, tips). While Congress bears some responsibility for the favorable treatment that investment income gets, it has not acted alone. The judiciary, for its part, has contributed a rule that shields any taxation of investments until they have become realized. In Eisner v. Macomber (1920), the Supreme Court determined that investments must be separated from their capital and that there must be some form ofreceipt before the gain is considered taxable. In other words, the Macomber Court read a rule that favors investors over laborers into the Constitution itself. The Macomber Court's realization rule was nowhere to be found at the nation's founding. In Hylton v. United States (1796), the Court prioritized judicial deference and legislative functionality in matters of taxation, concluding that the Constitution's text allowed the elected branches to tax leisure carriages, even though there had been no sale (realization event). Less than a century later, the majority in Pollock v. United States (1895) examined the same taxation clauses and found the words had a & bdquo;natural and obvious sense parts per thousand that restricted taxation of capital. This ruling began a tug-of-war between the elected branches and the judiciary. The Sixteenth Amendment was enacted to repudiate the Pollock decision, but a majority of the Supreme Court in Macomber continued Pollock & Ecirc;s legacy and held there was a fundamental distinction between capital and income. The Macomber Court constitutionalized the realization rule. But the tug-of-war between the judiciary and elected branches was far from over, and, for the next century, the judiciary would largely capitulate. An analysis of the & bdquo;attribution" concept and the Court & Ecirc;s recent decision in Moore v. United States (2024), reveals that the realization rule has become a & bdquo;zombie precedent"& centerdot;conceptually unstable and maintained only by ignoring increasingly complex legislative workarounds. Ultimately, judicial policy making does not withstand the test of time. The realization requirement is a judicial invention anchored in what the Justices considered & bdquo;sound economics," without regard for the original intent of the Sixteenth Amendment. To ensure the Constitution endures through & bdquo;remote futurities," the Court must formally abandon the realization requirement and return the authority to regulate macro-economic inequality to the democratic process.
What if the key to reducing crime in our communities was not more prosecution, but smarter regulation? I argue in this Article that consumer law is an underused and powerful addition to traditional criminal law in combating crime. Drawing on six cases brought by my office over the last seven years, I show how can be used to hold manufacturers, distributors, and retailers responsible for practices that facilitate criminal harm, like gun violence, car theft, and drug misuse. While not a substitute for shifts moral and legal accountability upstream, away from the sponsibility for criminal injury, and toward corporate actors who enable it. In doing so, it also promotes forms of systemic prevencriminal law often fails to deliver. In reimagining the legal architecture of crime control, this Article contributes to ongoing debates about mass incarceration, corporate responsibility, and the future of criminal justice reform. It calls on legislatures and other attorneys general to recognize the transformative potential of consumer law as a means of reducing dependence on criminal law, enhancing public safety, and promoting economic accountability.
