Friday, May 27, 2011

Prof. Levitt: Impact of Florida's early-voting law bigger than it seems

By Associate Professor Justin Levitt

Before Thursday, Florida's early vote period spanned 14 days, with 8 hours of voting per weekday and 8 total weekend hours: 96 hours of early voting, total. The new early vote period runs 8 days, with 6-12 hours of voting per day: also up to 96 hours of early voting, total. Most reporting characterizes this as "the same number [of hours], but over fewer days."

These are not, however, the same 96 hours. The former period ran for two weeks, from Monday through the Sunday before Election Day. Now, the period will run from Saturday through Saturday. Leaving off the final Sunday. Which matters.

Read the complete post on the Election Law Blog.

Prof. Levenson writes of Strauss-Kahn in 'Remember: Kobe Walked'

By Professor Laurie Levenson

Newsflash to the French! There are two trials in the United States - one inside the courtroom and one outside. The First Amendment allows the media to put defendants and prosecutors through their paces before they even step inside the courtroom. Reporters don't wait for courts to tell them what justice is; they investigate for themselves. Sometimes they put defendants in an uncomfortable spotlight; sometimes they exonerate them.

I don't condone perp walks or unfair pretrial publicity. It is unprofessional and unethical. But, in my experience, it doesn't really matter what the media does. Dominique Strauss-Kahn will get a fair trial. I have personally witnessed many high-profile cases, from O.J. Simpson's murder trial to Michael Jackson's molestation case. Kobe Bryant was once branded as a rapist, yet he ended up walking away from that case. Simpson and Jackson were both acquitted.

Read the complete column in Room for Debate on

Wednesday, May 25, 2011

Politics and the gift tax: The role of noncharitable exempt organizations

By Professor Ellen Aprill

This is another installment in the Summary Judgments summer series, "The Headline Club," in which Loyola Law School professors will discuss legal issues ripped from the front page.

The role of noncharitable exempt organizations, in particular section 501(c)(4) social welfare organizations, was perhaps the key feature of last year's election. One New York Times editorial, for example, declared: "For all the headlines about the Tea Party and blind voter anger, the most disturbing story of this year's election is embodied in an odd combination of numbers and letters: 501(c)(4)." IRS rules permit Section 501(c)(4) organizations to engage in political campaign activity so long as such is not their primary activity. At the same time, section 501(c)(4) organizations need not disclose their contributors to the public. There is, however, no statutory exception to the gift tax for transfers to section 501(c)(4) organizations., and the IRS announced as far back as 1982 that it considered such transfers subject to gift tax.

Until recently, the IRS has not enforced the gift tax on transfers to section 501(c)(4) organizations for many years. Moreover, few contributors would be subject to the gift tax. Currently, a contributor to a section 501(c)(4) organization does not treat annual transfers of the first $13,000 as a taxable gift; a contributor would owe no gift tax out of pocket until total transfers to these organizations and other taxable gifts exceeded $5,000,000.

Nonetheless, some individuals do contribute very large amounts to section 501(c)(4) organizations. It recently became known - and the IRS confirmed - that the agency has sent letters to five donors to section 501(c)(4) organizations asking why they had not filed a gift tax return for these transfers. The IRS stated that the inquiries were initiated by agency employees, not the White House or other administration officials, as part of increased efforts to enforce the estate and gift tax. (We know, for example, that in addition to inquiries regarding transfers to section 501(c)(4) organizations, the IRS has asked a number of states for records of intrafamily transfers.)

The current gift tax treatment of transfers to section 501(c)(4) organizations is an anomaly. Under the Internal Revenue Code, neither transfers to charitable organizations nor transfers to political organizations are subject to the gift tax. Yet, transfers to section 501(c)(4) organizations, which can share features of charities and political organizations, enjoy no such statutory exception. Perhaps the current furor over IRS enforcement of the gift tax for transfers to section 501(c)(4) organizations will impel Congress to do what it should have done long ago and change the law and provide a statutory exception for such transfers. At the same time, as I have suggested in a recent article, Congress could reconsider the disclosure rules applicable to section 501(c)(4) organizations.

Monday, May 23, 2011

A new era for exigent circumstances

By Professor Marcy Strauss

This is the first in the Summary Judgments summer series, "The Headline Club," in which Loyola Law School professors will discuss legal issues ripped from the front page.

The Supreme Court's 8-1 decision in Kentucky v. King has been described by some bloggers, pundits and scholars as being a serious blow to the Fourth Amendment and its protection of the privacy of the home, and by others as a narrow, fairly insignificant decision. The truth, as it often does, may lie somewhere in between predictions of doom and irrelevancy.

The issue in King was one that the lower courts had grappled with: does the "exigency exception" to the warrant requirement apply when the police "create their own exigency?" (and what does it mean to create the exigency?). In King, police officers pursued a suspected drug dealer into an apartment complex, briefly lost sight of him, but detected the very strong odor of burnt marijuana coming from behind one of the doors. At this point, the officers had several options. Instead of pursuing one option -- staking out the apartment and going for a warrant -- the officers banged on the door and announced their presence. Hearing "people moving and things being moved" led the officers to believe that drug-related evidence was about to be destroyed, and thus, the police made a warrantless entry into the home. As a result of that entry, they didn't find the man they were looking for originally (he had, in fact, gone in a different apartment), but did find marijuana and cocaine.

The lower state courts had found that exigent circumstances justified the warrantless entry. Traditionally, police officers cannot enter a home without a warrant, no matter how strong the belief that evidence or contraband was contained within the home, subject to a few narrow exceptions. One exception is exigent circumstances. On a very basic level, the exigent circumstance exception to the warrant requirement makes perfect sense: If there is no time to get a warrant, it should not be required that the police obtain one. The simple example I give my students is this: If a police officer is walking the beat, and hears gunshots fired from an apartment, surely we want that officer to rush into the apartment rather than head for the precinct to procure a warrant. But once you get beyond an example like this, tough questions abound. One of the most widely litigated issues among the lower state and federal courts was whether the exigency exception applies when the police "created their own exigency." For example, it was argued here, and the Kentucky Supreme Court agreed, that the police cannot deliberately create exigent circumstance with the bad-faith intent to avoid the warrant requirement, and moreover, even without bad faith, the police cannot rely on exigent circumstances if it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances. Applying that standard, the Kentucky Supreme Court held that although there was no bad faith here, it was reasonably foreseeable that the occupants would attempt to destroy evidence when the police officers chose to knock on the door and announce their presence. Hence, the police created their own exigency and the warrantless entry was, therefore, unconstitutional.

Introducing 'The Headline Club' summer series

Following up on our successful "11 on 11" series in which Loyola faculty weighed in on the top issues in their fields this year, this summer we will be starting a new series, "The Headline Club." One of the things that makes our academic community unique is how involved our colleagues are in real-life issues. Often these are issues that play out in the public eye. "The Headline Club" will feature blog posts by our colleagues on hot topics taken from the headlines. These will include everything from Supreme Court opinions, to legal twists on news stories, to how their scholarship relates to something on the front page.

The introductory post in this series will be from my colleague, Marcy Strauss, who will discuss the Supreme Court's Fourth Amendment case Kentucky v. King.

Thanks again for visiting our site, and we hope you continue to visit us often this summer!

-Professor Michael Waterstone, Associate Dean for Research and Academic Centers

California's Living Originalism

Recent graduate Michael Boardman published the following op-ed in the Friday, May 20 edition of the Los Angeles Daily Journal.

By Michael Boardman, Class of 2011

Back in January, a California Court of Appeal sided with one of California's most influential special interests, the Howard Jarvis Taxpayer Association, and overturned the state Legislature's ability to draft language for the titles and summaries that explain legislative initiatives on state ballots.

The decision itself is not necessarily a surprise. Titles of initiatives are supposed to be impartial descriptions, yet the Legislature had suggestively titled Proposition 9 the "Safe, Reliable High-Speed Passenger Train Bond Act," and the Howard Jarvis Taxpayer Association has been a juggernaut in state politics since it shepherded the infamous Proposition 13 in 1978. The surprise is that Jarvis and other special interests have repeatedly transformed the California Constitution with the help of the courts' standard of review, which takes inspiration from the harshest critics of constitutional dynamism -- the originalists.

For decades, the state Supreme Court has interpreted ambiguous language in initiatives by attempting to identify the intent of the voters. Since voters function as the legislature in direct democracy, this practice appears to be a natural extension of traditional statutory construction principles; courts generally seek to resolve ambiguities in the plain language of the law by identifying the intent of the lawmakers and interpreting their words accordingly.

But on a closer look, California's scheme seems to confuse philosophical principles, acting as a sort of Scalia-Breyer hybrid by using originalist principles to create a dynamic constitution. On the one hand, the court interprets initiative amendments based on the understanding of the public at the time it was passed (Justice Antonin Scalia's "original understanding"), and on the other it relies heavily on election materials as "legislative history," which Scalia finds largely irrelevant, to interpret initiative statutes consistently with current norms (Justice Stephen G. Breyer's responsive "living document"). This strange combination of values essentially creates a series of floating "originalist" interpretations, each based on its own constitutional amendment, a practice that tethers new laws to past interpretations and erodes the basic principles of California's direct democracy.

Monday, May 16, 2011

Loyola hosts Spring 2011 Southern California Junior Faculty Forum

Loyola Law School is hosting the Spring 2011 Southern California Junior Faculty Forum on Tuesday, May 17, 2011 on its downtown Los Angeles campus. Sessions include "From an 'Offspring of Revolution' to an 'Offspring of Law': Law and the Transformation of Constitutional Conventions in Postbellum America"; "Global Criminal Prosecutions and the Foreign Commerce Clause: Should Criminal Laws Follow U.S. Citizens Overseas?"; "Food Oppression"; "Accounting for Uncertainty: A New Model of Tax Compliance"; and "Election Overtime and the Dynamic Nature of Materiality." LLS presenters include Professor Michael Waterstone, associate dean for research and academic centers, and Associate Professor Justin Levitt.

Prof. Glazier asks (and answers): Was killing Osama bin Laden legal?

By Professor David Glazier

Although Osama bin Laden's killing has received general public approval from the American public, its legality has been questioned. A fundamental challenge is identifying the set of legal rules that applies. Was this an effort to capture the FBI's most-wanted terrorist, to be judged by the standards of international human rights law? Or was it a strike against an opponent in an armed conflict, judged according to the law of war?

Read the entire op-ed at, the website of the San Francisco Chronicle.

Thursday, May 5, 2011

Prof. Maureen Pacheco writes about effects of California AB 73

Maureen Pacheco recently published an op-ed, "Don't re-traumatize foster youths in court," in the Los Angeles Daily News. Below is an excerpt:

As a juvenile justice advocate for the last 25 years, I am strongly in favor of any measure that will help reform our dependency courts to provide better outcomes for children in the child welfare system.

Unfortunately, a measure before the state Legislature that seeks to presumptively open the dependency courts with the long-term goal of improving our child welfare system could create more harm than benefit. As written, AB 73 risks re-traumatizing youth who have already been abused or neglected by making public the most intimate details of their lives.

Read the complete op-ed

Monday, May 2, 2011

For Ohio voter rolls, a birthday surprise

By Associate Professor Justin Levitt

Recently, the Ohio press was abuzz with news of a study from Ohio Secretary of State Jon Husted on one aspect of the state's voter registration rolls. He'd attempted to match the registration lists with records of individuals listed by Ohio's department of health as deceased, and apparently found 18,460 matches.

But that's not what the public heard.

In one respect, press reports on the study showed remarkable restraint. It's quite common to see such reports heralded by shrill cries of voter fraud, with unfounded allegations of wrongdoing as overblown as the exclamation points at the end of an all-caps email. It's also unfortunately frequent to use such reports as fodder for heightened pollsite "security" measures that don't actually address the purported problems: the election-law equivalent of an airport frisk designed to stop only when it meets "resistance." Neither showed up in the Ohio press on the Secretary's report this week. And that silence is particularly notable given the highly controversial photo-ID bill working its way through the legislature at this very moment (which Husted, to his credit, recognizes as unnecessary). Huge credit to the press corps for reporting the news, and not the red meat.