Tuesday, January 16, 2018

Amending the Johnson Amendment in the Age of Cheap Speech

This is an excerpt from Professor Ellen Aprill's article published in the Illinois Law Review, in which Professor Aprill concludes: 

Charities can have enormous influence on political campaigns with little expense in today’s digital world. Contributions to charities are deductible; contributions to PACs and non-charitable section 501(c) organizations are not. Many who wish to intervene in political campaigns will shift their contribution from PACs and social welfare organizations to charities. I suspect that the Joint Committee of Taxation underestimates the revenue loss from even a five-year de minimis exception.

Under our current campaign finance regime, only dollars that have been taxed can be used for political intervention. A de minimis exception for campaign intervention for charities would undermine this basic principle. Moreover, over time, permitting charities to engage in partisan politics would reduce the respect long afforded to these entities and thus harm the sector. A de minimis exception to the campaign intervention prohibition would damage both the laws regulating charities and the laws regulating campaign finance. Our country would be far poorer for such changes.

Monday, January 8, 2018

Whitney Houston Estate Settles with IRS over Right of Publicity Valuation

By Professor Jennifer Rothman

The Whitney Houston estate and the IRS have settled their dispute over the value of the Grammy award-winner’s estate. The more than $11 million dollar disagreement in the amount of taxes owed centered on the valuation of Houston’s intellectual property rights, and particularly the value of her postmortem right of publicity. The estate had claimed that Houston’s right of publicity was worth just under $200,000, while the IRS claimed that it was worth more than $11.7 million. A staggering difference.

The IRS and the estate ultimately settled with the estate agreeing to pay $2 million. The IRS had initially sought more than $11 million in taxes and penalties from the estate. The stipulation entered on December 26th did not specify what Houston’s right of publicity was ultimately valued at.

The stipulation and settlement yet again avoided a court determination of whether the right of publicity should be part of the estate in the first place. Like the Michael Jackson estate, the Houston estate did not contest the inclusion of the right of publicity in the estate’s property―something I think estates should more actively start doing.

Tuesday, December 5, 2017

Finding a Bright Line on Expression in Masterpiece Cake Case

Loyola Law School, Los Angeles Professor Kimberly West-Faulcon is following the U.S. Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case stems from baker Jack Phillips’ refusal to make a wedding cake for a safe-sex couple, which challenged the refusal based on the Colorado Anti-Discrimination Act.

Professor West-Faulcon, Loyola’s James P. Bradley Chair in Constitutional Law, observes:
This is a case that tries to pit our constitutional right to be free from government censorship of our expression against civil rights protections for same-sex couples. I think finding a sensible place to draw the line on what constitutes artistic expression would mean people who run store-front bakeries must serve all of their products to all of the public because a bakeshop is a public accommodation. If you are more “artist” than baker, I’d think the Court would expect you to have a private studio with more exclusivity than a place where the general public goes to buy cookies.

Wednesday, November 8, 2017

Contempt at the Military Commissions: A Legal History

By: Professor David Glazier
This piece originally appeared on Lawfare

Does a military commission judge have the power to cite a senior U.S. military officer for contempt as if these tribunals were courts-martial or regular federal courts?

This question came to the fore last week when Guantanamo experienced its most bizarre detention to date. On Nov. 1, Col. Vance Spath held in contempt the military commissions’ chief defense counsel, Marine Corps Brig. Gen. John Baker in the trial of Abd al Rahim al Nashiri. (Al Nashiri is accused of planning the 2000 bombing of the USS Cole.) Although it might be widely assumed that the Guantanamo tribunals should enjoy similar core authority to that inherent in other U.S. courts—including the power to punish for contempt—the reality is that their authority is limited by their governing statute, the Military Commissions Act of 2009 (MCA).

Spath summarily convicted Baker for contempt of court for refusing to testify before the commission or revoke his unilateral excusal of three civilian counsel assigned to represent al Nashiri due to purported ethical conflicts. Spath imposed on Baker twenty-one days confinement and a $1,000 fine. Although Baker’s actions might be punishable by a judge in a regular civilian court, or even a court-martial conducted under the recently amended Uniform Code of Military Justice (UCMJ), they fall outside the scope of contempt as Congress defined it in the MCA.

Monday, November 6, 2017

2017 Tax Reform: We Hate Employees

By Professor Theodore Seto
This post originally appeared on Understanding Tax

Current tax law is moderately unfriendly to employees, more friendly to folks who can structure their businesses as sole proprietorship or partnerships. Sole proprietor expenses are deductible above-the-line, reduce adjusted gross income, and are deductible for AMT purposes. Employee expenses are only deductible below-the-line, are subject to the 2-percent floor and the overall limitation on itemized deductions, and are not deductible at all for AMT purposes.

Under the House Republican bill, things are about to get much worse.

Friday, November 3, 2017

Loyola Project for the Innocent Ushers in Rule on Prosecutorial Ethics

Loyola Project for the Innocent smooths way for passage of Rule 5-110 by the California Supreme Court. The rule, Special Responsibilities of a Prosecutor, defines their obligations to the defense.  "This will have a lasting imprint on the entire profession, and we played a leadership role in it," said Professor Laurie Levenson, LPI founder.

Read Rule 5-110 in full below.

Friday, October 27, 2017

Federal Circuit Adopts Professors' Theories on Veterans' Courts Hearing Class Actions

Update: Following the Federal Circuit's path-breaking decision permitting veterans to bring class actions in April, an en banc panel of the Veteran's Court has just set down a schedule for briefing and oral argument to consider certifying a class action in that case. 

Relying, in part, on an amicus brief filed by Professor Adam Zimmerman and others, the Federal Circuit this week agreed that veterans can bring class actions in veterans court in the case Monk v. Shulkin.

"By adopting our theory that this veteran's court could hear class actions under its statute, the Federal Circuit not only creates a meaningful path for veterans to pursue desperately needed institutional reform, but it has essentially paved the way for almost all other agencies with similarly worded authority to do the same," said Zimmerman.

The Wall Street Journal reported: "Adam Zimmerman, a class-action expert at Loyola Law School who filed an amicus brief in the case along with other academics, said the Federal Circuit ruling has the power to help more than the veterans. It also could pave the way for other agencies granted similar authority to the veterans court to hear collective actions, he said.

Relevant excerpt of opinion:

Under 38 U.S.C. § 7264(a), “[t]he proceedings of the [Veterans Court] shall be conducted in accordance with such rules of practice and procedure as the Court prescribes.” This express grant authorizes the Veterans Court to create the procedures it needs to exercise its jurisdiction.

Other tribunals have relied on statutes with similar language as 38 U.S.C. § 7264 to aggregate claims and create class action procedures, including the Equal Employment Opportunity Commission (“EEOC”). See Amicus Br. of 15 Admin. Law, Civil Procedure, and Fed. Courts Professors at 10–11 (noting that the EEOC was granted authority to “issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities” pursuant to 42 U.S.C. § 2000e-16(b)). Under this authority, the EEOC adopted a class action resolution procedure. 29 C.F.R. § 1614.204; see, e.g., 57 Fed. Reg. 12,634 (Apr. 10, 1992); Wade v. Donahoe, No. CIV.A. 11-3795, 2012 WL 3844380, at *13 (E.D. Pa. Sept. 4, 2012) (“Pursuant to [its 42 U.S.C. § 2000e-16(b)] authority, the EEOC has promulgated regulations for class actions.”).

On the basis of the express statutory authority of the Veterans Court to prescribe “rules of practice and procedure,” the Veterans Court may prescribe procedures for class actions or other methods of aggregation.