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Compromising the Safety Net: How Limiting Tax Deductions for High-Income Donors Could Undermine Charitable Organizations

PdfPDF by Patrick E. Tolan, Jr. · May-15-2013 · Categories: Lead Articles, Number 2, Print Edition, Volume 46

With the election behind us, tax reform looms as the hot-button topic of the day.  Based on election results, it is likely that the Obama administration will continue to push for the same types of reforms proposed in the 2013 budget.  However, inadvertent consequences of the administration’s proposals, specifically those impacting charitable donations, may lead to unfortunate results in the rush to do something to break the gridlock on tax reform, especially while federal spending remains reduced or “sequestered” until the budget can be balanced. President Obama’s budget proposals have contemplated reducing the top rate for charitable deductions (and all itemized deductions) to 28%.  Because America’s largest donors are those in the highest marginal tax brackets, efforts to limit deductibility [...]

Making Law with Lawsuits: Understanding Judicial Review in Campaign Finance Policy

PdfPDF by Rebecca Curry · May-15-2013 · Categories: Lead Articles, Number 2, Print Edition, Volume 46

Campaign finance law presents quite a puzzle:  It is an area of federal policy closely tied to the interests of incumbents in the political branches, and yet, it is controlled to a great extent by unelected federal court judges.  While we tend to assume that First Amendment considerations drive judicial review here, scholars have yet to account for political leaders’ decisions to establish federal court jurisdiction in the first place, allowing lawsuits that either challenge or enforce the law.  Can it be that Congress went to great lengths to write statutes regulating the use of money in elections, but had nothing to say about how and to what extent courts would review the law? This Article examines the role political [...]

“When Numbers Get Serious”*: A Study of Plain English Usage in Briefs Filed Before the New York Court of Appeals

PdfPDF by Ian Gallacher · May-15-2013 · Categories: Lead Articles, Number 2, Print Edition, Volume 46

At the time of writing, the academic discipline of legal writing has just celebrated its twenty-fifth birthday in the United States.  This is a significant milestone and the discipline enters its second quarter century in impressively robust health:  It has three professional organizations dedicated to it, three specialist journals, an ever-expanding bibliography of articles published in other journals and law reviews, two listservs and at least one blog, and a library full of books devoted to its study and teaching.  Most law schools in the country employ faculty dedicated to teaching legal writing, many of them adjuncts, to be sure, but many more as full-time teachers.  Indeed, because the recognized best-practices model of teaching legal writing involves relatively small classes, it is likely that there [...]

Choosing a Home: When Should Children Make Autonomous Choices About Their Home Life?

PdfPDF by Sarah J. Baldwin · May-15-2013 · Categories: Notes, Number 2, Print Edition, Volume 46

A sixteen-year-old female may decide to give birth and become a mother, but she cannot independently obtain an abortion or marry the father of her child.  A young mother may relinquish rights to her child without judicial intervention, but that same teenager may not decide independently with which parent she wishes to live.  The passage of the Twenty-Sixth Amendment highlighted inconsistencies in the law that allowed eighteen-year-olds to fight for their country but deprived those same individuals of the right to vote for the politicians who sent them to war.  Although this debate changed the way many individuals feel, society has failed to fully integrate young people into the legal and social worlds currently populated only by adults.  Similar inconsistencies [...]

Not a Bad Idea: The Increasing Need to Clarify Free Appropriate Public Education Provisions Under the Individuals with Disabilities Education Act

PdfPDF by Michele L. Beatty · May-15-2013 · Categories: Notes, Number 2, Print Edition, Volume 46

The Supreme Court has long stressed the importance of providing equal education opportunities to children.  Additionally, the Court has emphasized that the Due Process Clause prohibits school personnel from removing a student for violating its code of conduct “absent fundamentally fair procedures to determine whether the misconduct has occurred.”  The rights of disabled children to receive an equal education, including fundamental procedural-due-process rights, have developed considerably in the past three decades. Efforts to ensure disabled students receive the same opportunities as their nondisabled peers are reflected in both federal and state laws.  The first congressional breakthrough occurred with the passage of the Education for All Handicapped Children Act of 1975 (EHA).  Over time, amendments improving the EHA were made, and [...]

Let’s Be Frank: The Future Direction of Controlling Person Liability Remains Uncertain

PdfPDF by Michael A. Bednarz · May-15-2013 · Categories: Notes, Number 2, Print Edition, Volume 46

In the wake of the Great Depression, Congress enacted the Securities Act of 1933 (1933 Act) and the Securities Exchange Act of 1934 (1934 Act).  Together, the Acts provide the Securities and Exchange Commission (SEC) with broad authority over the securities industry, and institute methods for holding those who commit securities fraud liable.  Section 15 of the 1933 Act and section 20(a) of the 1934 Act establish controlling person liability, a mechanism for establishing secondary liability against corporate directors and officers for securities fraud committed by their subordinates.  Section 15 of the 1933 Act merely permits controlling person liability to be pursued if very limited types of securities fraud have been committed.  As a result, pursuing a controlling person liability [...]

What’s the Holdup? How Bureaucratic Obstacles Are Undercutting the True Potential of American Wind Power

PdfPDF by Anthony V. Bova · May-15-2013 · Categories: Notes, Number 2, Print Edition, Volume 46

Wind power is now the fastest growing source of alternative energy in the United States, due in part to desires to increase utilization of cleaner energy and to withdraw from dependence on foreign energy.  Studies have shown that if properly harnessed, the United States has enough wind-energy potential to provide well over the amount of electricity currently consumed nationally.  Capitalizing on this potential, thirty-eight states currently maintain utility-scale wind projects, with fourteen states amassing over one thousand megawatts (mW) of energy from these projects. Although all current wind power generated in the United States is produced through land-based operations, the country is pursuing offshore projects—specifically the perpetually delayed Cape Wind project located off the coast of Massachusetts.  If the United States [...]

Massachusetts Standing Laws and Zoning Appeals: Standing on Shaky Ground After Kenner v. Zoning Board of Appeals

PdfPDF by Beth Lidington · May-15-2013 · Categories: Notes, Number 2, Print Edition, Volume 46

Zoning laws in the United States came into existence at the turn of the twentieth century and were deemed constitutional under state police power.  Since zoning’s inception, states have delegated the bulk of zoning authority to local municipalities, and accordingly, this area of the law is quite diverse.  The manifold nature of zoning is strikingly evident at the judicial-review level, where courts grapple with upholding zoning’s legal underpinnings, while at the same time maintaining deference to local decision-making.  The interplay between state and local authorities results in a body of law that can be, at times, contradictory and unpredictable. To have standing to oppose an act of a local zoning board, Massachusetts law requires a person to be “aggrieved”; however, [...]

Where Good Intentions Go Bad: Redrafting the Massachusetts Cyberbullying Statute to Protect Student Speech

PdfPDF by Patrick E. McDonough · May-15-2013 · Categories: Notes, Number 2, Print Edition, Volume 46

On January 14, 2010, Phoebe Prince, a fifteen-year-old Irish immigrant and student at South Hadley High School, took her own life.  While the reasons for Phoebe’s suicide remain unknown, what emerged in the broader media coverage of her death was an allegedly systemic pattern of bullying throughout her high school, a pattern ignored by administrators, faculty, and parents.  Phoebe’s enemies attacked her with verbal insults, both in school and electronically outside of school, via Facebook. Massachusetts officials sprang quickly into action after the media onslaught following Phoebe’s death.  Northwestern County District Attorney Elizabeth Scheibel charged five of Phoebe’s classmates with a multitude of crimes stemming from their reported bullying of her, including civil-rights violations with bodily injury, criminal harassment, and [...]

Online Retailers Battle with Sales Tax: A Physical Rule Living in a Digital World

PdfPDF by Emily L. Patch · May-15-2013 · Categories: Notes, Number 2, Print Edition, Volume 46

Next time you go shopping, look at the sales price of an item you want to buy.  Compare that price with the somewhat higher price you actually end up paying.  That difference is what we all know as a sales tax.  Now, sign on to amazon.com (Amazon) and look up the exact same item.  You will likely notice that the online price is lower than it would otherwise be in a brick-and-mortar store.  You will also notice that unless you are in one of the nine states in which Amazon must charge a sales tax, the final sale price is the same as the ticket price. Although seemingly unfair, this difference in price between the local brick-and-mortar store and the [...]