The cases of the “Central Park Five” and Brendan Dassey are two of the highest profile criminal cases in the past three decades. Both cases unsurprisingly captured the nation’s attention and became the subjects of several documentaries. Each case forces the public to consider how police officers could mistakenly identify and interrogate an innocent suspect, how an innocent person could feel compelled to falsely confess, and how our legal system could allow the false and coerced confession of a child to be the basis of a criminal conviction. While these two cases made national headlines, they are not unique. False confessions by juveniles are a common and even inevitable occurrence given the impact of the interrogation process on children and the inadequacies of the legal standard that currently exists to protect against juvenile false confessions.
Part I of this Note will discuss the prevalence of false confessions among juvenile suspects, and explain how juveniles’ transient developmental weaknesses make them particularly vulnerable to specific coercive interrogation techniques. Part I will also emphasize the impact that a confession has on the outcome of a defendant’s trial, thereby highlighting the weight that a false confession carries.
Part II of this Note will present the existing law governing the evaluation of the voluntariness of a confession—the procedural safeguards offered by Miranda v. Arizona and the totality of the circumstances test rooted in the concern for due process. Part II will also argue that the totality of the circumstances test is insufficient to protect juveniles because it does not give binding weight to a suspect’s age, but rather considers age among several other characteristics.
Part III of this Note will propose a new legal rule to guide the evaluation of juvenile confessions. The proposed legal rule extends and expands upon the language and holding from J.D.B. v. North Carolina, and requires that age be the primary factor in courts’ evaluations of juvenile confessions. Confessions offered by children during interrogations in which coercive techniques are employed must be presumed involuntary, given the effect that manipulative interrogation techniques have on juveniles’ likelihood to falsely confess. Moreover, given that courts often have no way of knowing the circumstances of an interrogation, confessions by all juveniles should be presumed involuntary until the prosecution can prove that no coercive interrogation techniques were used. Part III also proposes a series of policy reforms that aim to reduce the prevalence of false confessions.
In its landmark District of Columbia v. Heller decision, the Supreme Court announced that the Second Amendment guarantees an individual right of the people to bear arms. Although Heller answered a long-standing question about the Second Amendment’s meaning, there remain issues to be settled. One of the most pressing—and the main topic of this Note—is the proper method of review and application of this individual right. Without guidance on these issues, several circuit courts have followed different approaches. Although opportunities to provide some clarity have come before the Supreme Court, so far, it has denied certiorari.
This Note will not opine on the merits of the individualist or collectivist approaches to the interpretation of the Second Amendment, as this question has been answered conclusively in Heller. Instead, this Note will provide a suggested framework for the application of this individual right to keep and bear arms, and will progress as follows. Part I will offer a contextual history of the Second Amendment. Part II will make the case for why clarity on this issue is so desperately needed and is punctuated by a discussion of the Second Circuit’s particularly troubling application of the right. Part III will offer a proposed framework that, if adopted by the Supreme Court, can resolve the questions posed in Part II. Part IV will apply the framework to California concealed carry regulations. Finally, Part V will apply the framework to a new California law that is likely to make its way to the Ninth Circuit soon, thus allowing the Supreme Court to clarify Second Amendment jurisprudence further.
Exchange-traded funds (“ETFs”) are among the most important financial innovations of the modern era. And yet they still have no coherent regulatory system. This Article addresses the problem by assessing the SEC’s recent effort in this area in light of the recommendations we provided in prior research. In March 2018, we offered the first academic work to show the need for, or to present, a comprehensive regulatory framework for all ETFs. On June 28, 2018, just prior to that article’s scheduled publication, the SEC issued a proposal to change the way it regulates certain types of ETFs. On May 20, 2019, the SEC issued its “Precidian” exemptive order, allowing for the first time “non-transparent” actively managed ETFs—an order that we believe has surprising, hitherto unexplored implications for ETF regulation.
This new Article thus considers the SEC proposal and the Precidian order in the context of our earlier article’s proposed regulatory framework, and also refines that framework. We provide additional rationales for the framework, relying in part on new empirical findings.
The SEC’s proposal does not seek to provide a comprehensive regulatory framework for all ETFs. However, the proposal is a commendable start to addressing some of the problems in the current ad hoc approach to ETF regulation, especially as to the substantive side of ETF regulation. In proposing a more rules-based approach, the SEC helps deal with the central problem of current substantive ETF regulation—the reliance on individualized exemptive letters. However, this partial shift only applies to certain ETFs that are organized under the Investment Company Act of 1940 and also leaves in place an anomalous set of individualized exemptions for several specific Investment Company ETFs, including those offering leveraged and inverse exposures. More broadly, the proposal does not address problems of SEC discretion pertaining to the underlying process of financial innovation in ETFs. The proposed rule also neglects to address the frequent need for individualized exemptions with respect to stock exchange listing requirements.
With respect to the disclosure side of regulation, the SEC proposal again only covers Investment Company ETFs, but is even more incremental in nature. The SEC contemplates modest enhancements of disclosures related to “trading price frictions” of such ETFs. And, going the other direction, the SEC contemplates eliminating the primary source of information for retail investors on intraday values of ETF shares. We welcome the SEC’s invitation for views on more fundamental disclosure reforms. We offer a refined version of the comprehensive disclosure approach advanced in our first article, and provide fresh rationales for such an approach, based in part on new empirical findings. This approach would apply to all ETFs, and would be cognizant of the distinctive characteristics of ETFs and the subtle complexities introduced by the underlying innovation process. Collectively, a disclosure regime consisting of a “dynamic” SEC-specified ETF nomenclature and required ETF self-identification (which nomenclature and self-identification we refer to as the “disclosure building block”), fuller quantitative disclosures of trading price frictions (such as those related to the arbitrage mechanism and bid-ask spreads), and periodic Management’s Discussion and Analysis-style qualitative information centered on the arbitrage mechanism (including, as appropriate, consideration of the impact of the liquidity of the assets in which the ETF is invested) would help individual and institutional investors alike.
Few organizational acronyms are more familiar to Americans than those of the National Collegiate Athletic Association (“NCAA”) and the Internal Revenue Service (“IRS”). Although neither organization is particularly popular,1 both loom large in American life and popular culture. Because there is a tax aspect to just about everything, it should come as no surprise that the domains of the NCAA and the IRS overlap in a number of ways. For many decades, college athletics have enjoyed unreasonably generous tax treatment—sometimes because of the failure of the IRS to enforce the tax laws enacted by Congress, and sometimes because Congress itself has conferred dubious tax benefits on college sports. Very recently, however, there have been signs of what may be a major attitudinal shift on the part of Congress—although, so far, there have been no signs of a corresponding change at the IRS.
This Article offers an in-depth look at the history and current status of four areas of intersection between the federal tax laws and college sports. Part I considers the possible application of the tax on unrelated business income to big-time college sports. It concludes that, even in the absence of any change in the unrelated business income statute, there is a strong argument that revenues from the televising of college sports should be subject to the unrelated business income tax. Part II examines the tax status of athletic scholarships. It explains that athletic scholarships, as currently structured, are taxable under the terms of the Internal Revenue Code but that the IRS seems to have made a conscious decision not to enforce the law.
While the first two Parts of this Article address areas in which the traditional sweetheart arrangement between the IRS and the NCAA remains in effect, the final two Parts of this Article consider areas in which Congress has—very recently—intervened to increase the tax burden on college athletics. Part III describes how Congress, three decades ago, explicitly permitted taxpayers to claim charitable deductions for most of the cost of season tickets to college football and basketball games and how Congress in 2017—to the surprise of many observers, including the authors of this article—repealed this special tax benefit. Finally, Part IV addresses issues of both statutory interpretation and policy raised by Congress’s creation, in 2017, of a twenty-one percent excise tax on at least some universities that were paying seven-figure salaries to their football and basketball coaches. This Article’s conclusion suggests the IRS should follow the lead of Congress and reconsider the administrative favoritism toward college sports described in Parts I and II.
Businesses and organizations expect their managers to use data science to improve and even optimize decisionmaking. Yet when it comes to some criminal justice institutions, such as prosecutors’ offices, there is an aversion to applying cognitive computing to high-stakes decisions. This aversion reflects extra-institutional forces, as activists and scholars are militating against the use of predictive analytics in criminal justice. The aversion also reflects prosecutors’ unease with the practice, as many prefer that decisional weight be placed on attorneys’ experience and intuition, even though experience and intuition have contributed to more than a century of criminal justice disparities.
Instead of viewing historical data and data-hungry academic researchers as liabilities, prosecutors and scholars should treat them as assets in the struggle to achieve outcome fairness. Cutting-edge research on fairness in machine learning is being conducted by computer scientists, applied mathematicians, and social scientists, and this research forms a foundation for the most promising path towards racial equality in criminal justice: suggestive modeling that creates baselines to guide prosecutorial decisionmaking.
Akin to every other legal issue that comes before the Court, reconciling the state’s discretion and the Supreme Court’s role in judicial review requires a judicially manageable standard that allows the Court to determine when a legislature has overstepped its bounds. Without a judicially discoverable and manageable standard, the Court is unable to develop clear and coherent principles to form its judgments, and challenges to partisan gerrymandering would thus be non-justiciable.
In the partisan gerrymandering context, such a standard needs to discern between garden-variety and excessive use of partisanship. The Court has stated that partisanship may be used in redistricting, but it may not be used “excessively.” In Vieth v. Jubelirer, Justice Scalia clarified, “Justice Stevens says we ‘er[r] in assuming that politics is ‘an ordinary and lawful motive’ in districting,’ but all he brings forward to contest that is the argument that an excessive injection of politics is unlawful. So it is, and so does our opinion assume.” Justice Souter, in a dissent joined by Justice Ginsburg, expressed a similar idea: courts must intervene, he says, when “partisan competition has reached an extremity of unfairness.”
At oral argument in Rucho, attorney Emmet Bondurant argued that “[t]his case involves the most extreme partisan gerrymander to rig congressional elections that has been presented to this Court since the one-person/one-vote case.” Justice Kavanaugh replied, “when you use the word ‘extreme,’ that implies a baseline. Extreme compared to what?”
Herein lies the issue that the Court has been grappling with in partisan gerrymandering claims. What is the proper baseline against which to judge whether partisanship has been used excessively? And how can this baseline be incorporated into a judicially manageable standard?
From Volume 92, Number 4 (May2019) Divergence in Land Use Regulations and Property Rights Christopher Serkin[*] INTRODUCTION […]
For half a century at least, the several states of the United States have taken a liberal attitude toward the recognition and enforcement of foreign country money judgments. The U.S. Supreme Court invoked the “grace” of sovereign nations to justify a restrictive approach to the recognition of judgments in the famous case of Hilton v. Guyot. The New York Court of Appeals laid out a more generous approach based in the vindication of private rights. Simply put, private rights won. In 1962, the Uniform Law Commission promulgated the Uniform Foreign Money-Judgments Recognition Act, which codified a liberal approach to the cross-border circulation of money judgments. The many U.S. states that adopted the uniform act were trying to lead by example. The hope was that, if they accepted incoming judgments, judgments exported to the rest of the world would be accepted, recognized, and enforced. For decades, this effort was regarded as a failure. The European Union continued to draw a sharp distinction between E.U. judgments and U.S. judgments—though acceptance of U.S. judgments by E.U. member states crept up over time. Some of the world’s largest economies—most notably, China—outright rejected recognition of U.S. money judgments.
Change has been recent and dramatic. In 2017, a Chinese court recognized and enforced a U.S. money judgement for the first time. Chinese law requires reciprocity between nations in order to recognize a foreign money judgment. The United States has no reciprocal judgment recognition treaty with any country. A U.S. district court recognized and enforced a Chinese judgment in 2009. This “reciprocity in fact” was sufficient for a Chinese court. A few months later, China announced that it would sign The Hague Convention on Choice of Court Agreements (“COCA”), obligating Chinese courts to recognize and enforce judgments rendered under a choice of court clause selecting the courts of any contracting state. The COCA has already entered into force between the European Union, Mexico, and Singapore. The United States has signed, but not ratified, the agreement. Meanwhile, The Hague Judgments Project gathers steam to require the free circulation of judgments arising in all but a few contexts. The drivers of this apparent convergence are obscure and likely diverse. This Article will analyze the causes of this recent, dramatic shift and will attempt to assess the likelihood of further convergence.
From Volume 92, Number 4 (May 2019) from nuisance to environmental protection in Continental Europe Vanessa […]
From Volume 92, Number 4 (May 2019) Bluffing in business-to-business contract negotiations The relationship between moral […]