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Ending the Military’s Courts of Criminal Appeals De Novo Review of Findings of Fact

PdfPDF by Matt C Pinsker · June-3-2014 · Categories: Current, Current Lead Articles, Lead Articles, Number 3, Print Edition, Volume 47

Under Article 66(c) of the Uniform Code of Military Justice (UCMJ), the military’s courts of criminal appeals have the unusual appellate power to conduct a de novo review of a trial court’s findings of fact. Congress gave the military’s appellate courts their unique fact-finding powers in 1950 because under the original UCMJ, special and general courts-martial were highly unprofessional proceedings and extremely susceptible to command influence, thereby creating the risk of unjustly convicting and harshly sentencing servicemembers. Originally, there were not even military judges presiding at summary courts-martial. Instead, a senior line officer untrained in the law was designated president of the panel and was responsible for deciding questions of law, such as the admissibility of evidence. The panel president [...]

The EU-27, U.S., U.K., and China Should Dump Cap-and-Trade as a Policy Option and Adopt a Carbon Tax with Reinvestment To Reduce Global Emissions

PdfPDF by Stephen Sewalk · June-3-2014 · Categories: Current, Current Lead Articles, Lead Articles, Number 3, Print Edition, Volume 47

Cap-and-trade is a failed policy. Under the Kyoto Protocol, global emissions have continued to increase and the European Union Emissions Trading System (EU ETS) price collapsed due to hot air and over allocation of emissions. The time has come to abandon cap-and-trade as a method or means of potentially reducing global greenhouse gas (GHG) emissions. As such, the European Union Twenty-Seven (EU-27) should abandon the EU ETS and adopt a carbon tax with reinvestment (CTR), leading the way for the United Kingdom, United States, and China to also adopt this strategy. Together, the EU-27, United Kingdom, United States, and China account for 57% of total carbon-dioxide emissions, not including land use and deforestation. If these countries, which account for approximately [...]

The Fourth Amendment and the Intuitive Relationship Between Child Molestation and Child Pornography Crimes

PdfPDF by Anthony Gambale · June-2-2014 · Categories: Current, Current Notes, Notes, Number 3, Print Edition, Volume 47

Due to the ambiguous language of the Fourth Amendment, courts have been unable to agree on a strict test as to what constitutes a reasonable search and seizure. For example, in United States v. Falso, the court held that evidence of child molestation, by itself, did not create probable cause for a search warrant for child pornography. In its reasoning, the court concluded that a crime involving the sexual abuse of a minor does not relate to child pornography. Therefore, officers lacked sufficient probable cause when executing the search warrant issued by the magistrate.   Likewise, in United States v. Hodson, the court held that evidence of child molestation, without more, was insufficient to create probable cause for a search [...]

Resolving the Cross-Border Discovery Catch-22

PdfPDF by Matthew J. Smith · June-2-2014 · Categories: Current, Current Notes, Notes, Number 3, Print Edition, Volume 47

The extraterritorial reach of the Federal Rules of Civil Procedure’s (Federal Rules) evidence-gathering provisions has long been a source of tension in foreign relations. The world we live in is increasingly interconnected and litigation between parties subject to multiple sovereigns has become more commonplace. Often, the discovery provisions of the Federal Rules come into conflict with foreign laws, such as banking secrecy or blocking statutes. Under such a predicament, a litigant that operates both abroad and in the United States is placed in a catch-22: produce discovery in violation of foreign law (and be subject to liability) or refuse to produce discovery (and be subject to sanctions). These types of scenarios can arise in almost every context and implicate the [...]

Transsexual Prisoners and the Eighth Amendment: A Reconsideration of Kosilek v. Spencer and Why Prison Officials May Not Be Constitutionally Required To Provide Sex-Reassignment Surgery

PdfPDF by Ethan Z. Tieger · June-2-2014 · Categories: Current, Current Notes, Notes, Number 3, Print Edition, Volume 47

For many Americans, the thought of providing any form of medical care to a convicted murderer is incomprehensible, a sentiment embodying the tenuous interplay between principles of morality and the rule of law. The reality is that prisoners throughout the United States frequently undergo various medical procedures to treat their health care needs, but for transsexual prisoners, the uphill battle to receive treatment, including hormone therapy and sex-reassignment surgery (SRS), has been plagued by the courts’ general resistance to recognize the severity of gender dysphoria. The Eighth Amendment has long been interpreted to afford a prisoner the right to receive adequate medical care and treatment for his or her serious medical needs. The Supreme Court has further explained that the [...]

Frisky Business: Adapting New York City Policing Practices To Ameliorate Crime in Modern Day Chicago

PdfPDF by Josephine Unger · June-2-2014 · Categories: Current, Current Notes, Notes, Number 3, Print Edition, Volume 47

New York City currently maintains one of the lowest crime rates among all major American metropolitan areas. Several decades ago, however, the urban hub of the Empire State found itself in peril as it experienced a devastating rise in violent crime. This upward trend persisted until the early-to-mid 1990s when statistics on crime began to indicate a change for the better. Crime rates in New York City continued to descend until the turn of the millennium when they stagnated, resulting in a plateau of reported crime, which continues to endure. The plummeting crime numbers coincided with an historic ascent in the number of stop and frisks performed by city police officers. The decline in urban crime and simultaneous rise in [...]

Tax Law—U.K. Windfall Tax Constitutes U.S. Income Tax Under I.R.C. § 901(b)(1)—PPL Corp. v. Commissioner, 133 S. Ct. 1897 (2013)

PdfPDF by David Holland · June-1-2014 · Categories: Case Comments, Current, Current Case Comments, Number 3, Print Edition, Volume 47

The U.S. tax code allows citizens and domestic corporations to credit foreign taxes paid against U.S. taxes owed. A foreign tax paid by a U.S. citizen or a domestic corporation may be creditable against domestic taxes when such tax is considered a levy on income. Although the tax’s “predominant character” controls in determining whether it is an income tax, the effect of a foreign country’s characterization of the tax on such analysis has remained unsettled. In PPL Corp. v. Commissioner, the Supreme Court considered whether a windfall tax paid in the United Kingdom (U.K.), and characterized by the U.K. as a tax on value and not a tax on income, is creditable in the United States. The Court held that [...]

The Constitutional Protection of Information in a Digital Age

PdfPDF by Gerard J. Clark · April-27-2014 · Categories: Current, Current Lead Articles, Lead Articles, Number 2, Print Edition, Volume 47

To state the obvious, we live in a world that is awash in information. Discoveries of new scientific information occur daily in the laboratories of the world. The Facebook accounts of millions of teenagers contain information about the love lives of their friends. Google traces the search information of its subscribers. Supermarkets use personalized discount cards to trace the purchasing preferences of their customers. The National Security Agency (NSA) has been building a one-million-square-foot data and supercomputing center in Utah, which is expected to intercept and store much of the world’s Internet communication for decryption and analysis. States maintain driver, tax, and voter records. All of these records contain information that can yield profit for some and embarrassment for others. [...]

An Unexpected Friend: Liberalism’s Response to Corporate Political Spending

PdfPDF by Daniel M. Isaacs · April-27-2014 · Categories: Current, Current Lead Articles, Lead Articles, Number 2, Print Edition, Volume 47

Much of the scholarly literature critical of the Supreme Court’s decision in Citizens United rings true to people predisposed to view corporate power and free markets with suspicion. In this Article, I seek to reach a different audience—people who believe in the power of free markets to promote social welfare. To do so, I maintain that corporate political expenditures are inconsistent with the principles of classical liberalism and against the interests of the corporations that make the expenditures.   I also pose solutions consistent with classical liberalism. If corporate political spending so threatens the system that preserves liberty and the efficient operation of a free-market society, it is reasonable, under classical liberalism, to permit the state to set rules to [...]

Multifactors, Multiconfusion? Refining “Likelihood of Confusion” Factors for Reverse-Confusion Trademark Infringement Claims To Achieve More Consistent and Predictable Results

PdfPDF by Christina P. Mott · April-27-2014 · Categories: Current, Current Notes, Notes, Number 2, Print Edition, Volume 47

On the surface, trademark law protects trademarks, defined as any “word, logo or package design, [or some combination thereof,] used by a manufacturer or merchant to identify its goods [or services] and distinguish them from others.” Typical trademark infringement cases involve a “senior” trademark owner seeking to prohibit a subsequent, “junior” user from using the same or similar mark. On a deeper level, however, trademarks also serve as objective, goodwill symbols of consumer satisfaction, representing and reinforcing to the public a distinctive good or service. “In trademark law, the question is always of consumer perception in the marketplace rather than judicial perception in the courtroom.”   The Lanham Act (the Act) governs federal trademark protection, providing for nationwide protection of [...]