José E. Alvarez, Biden's International Law Restoration, 53 N.Y.U. J. Int'l L. & Pol. 523 (2021)
If the Biden administration approached the eight trends left over from the Trump presidency according to the values espoused in Fratelli Tutti, the world could see a more transformative U.S. approach to international law instead of the more likely tempered return to normalcy. Yet even the latter rightly generates sighs of relief among most international lawyers and within the U.S. foreign policy establishment. In the minds of many, Biden's restoration, even if modest, will be a massive improvement over the prior administration's manifold transgressions against national and international law. At the very least, Biden's election will forestall a fearsome slide towards greater international disorder and “global authoritarianism”201 and return the United States to relatively stable relations with nations entitled to respect. Biden, like most prior U.S. presidents, will try to explain, sometimes implausibly, how his actions comport with international law. The Trump administration rarely bothered to do that much and often flaunted international law.202 Even on his way out the door, Trump violated *586 internationally accepted norms governing free and fair elections.203 Biden's election will bring international lawyers back into “the room where it happens.”204 What they do when they get there remains a work in progress. The 2020 election demonstrates that U.S. politics continue to be defined by sharp divides between ‘values' voters who often identify as evangelical Christians and secular, largely urban elites on the east and west coasts. Ironically, the successful candidate most strongly backed by ‘coastal elites' turned out to be a practicing Catholic apt to pay heed to Pope Francis's call to defend common humanity (Fratelli Tutti) and protect the planet (Laudato si’). Fortunately for the United States and perhaps the world, President Biden seems to agree with those who still have faith that international law and its institutions can help achieve both of these goals.
Cathalene Bowler and Lisa C. Williams, Qualified Charitable Distributions: Advantages for Charitable Baby Boomers, 105 Prac. Tax Strategies, 17 (2020)
Charitably inclined baby boomers age 70 1/2 and older, that have traditional IRAs and have RMDs, may receive greater tax benefits with QCD exclusions than charitable contribution deductions. The increase in the RMD age with the SECURE Act does not impactthe age limits for QCDs; it remains at 70 1/2. However, the SECURE Act also eliminated the 70 1/2 age limitation for contributing to a traditional IRA. This change requires the QCD income exclusion to be reduced by the amount of the IRA contributiondeduction.
The CARES Act waived RMDs for 2020 and permitted rollovers of RMDs already received in 2020 until 8/31/2020. An alternative for generous baby boomers that still plan to receive an RMD is to use it to make a QCD to exclude the income. Tax professionals shouldadvise their baby boomer clients on the tax advantages and caveats of QCDs.
QCDs are distributions directly from an IRA trustee to a qualified charitable organization.
A QCD may be applied toward the annual RMD if the taxpayer donates directly from an IRA (on or after turning age 70 1/2) or deemed IRA.
**10 The beauty of a QCD is that it reduces the taxable amount of an RMD from an IRA for taxpayers age 70 1/2 or older.
Tax professionals can highlight how baby boomers receiving an RMD from an IRA can take advantage of the standard deduction and still benefit from charitable giving with a QCD.
Samuel D. Brunson, God Is My Roommate? Tax Exemptions for Parsonages Yesterday, Today, and (If the Constitutional) Tomorrow, 96 Ind. L. J. 521 (2021)
In this Article, Brunson explores the historical and current tax exemptions for parsonages, and trace how states arrived at their current exemptions. Ultimately, I conclude that the historical significance test, as applied by the Seventh Circuit, does not support the constitutionality of the parsonage allowance. I further conclude that, given its complexity and the fact that attorneys and judges tend to be poor historians, the historical significance test is not well suited as a jurisprudential tool for analyzing Establishment Clause questions, and that courts should not adopt it.
Nathan S. Chapman, Forgotten Federal-missionary Partnerships: New Light on the Establishment Clause, 96 Notre Dame L. Rev. 677 (2020)
Americans have long debated whether the Establishment Clause permits the government to support education that includes religious instruction. Current doctrine permits states to do so by providing vouchers for private schools on a religiously neutral basis. Unlike most Establishment Clause doctrines, however, the Supreme Court did not build this one on a historical foundation. Rather, in cases from Everson v. Board of Education (1947) toEspinoza v. Montana Department of Revenue (2020), opponents of religious-school funding have claimed American history supports a strict rule of no-aid. As the government-missionary partnerships narrow the scope of the objections to religious assessments, they likewise narrow the scope of the historical support for taxpayer standing under the Establishment Clause. The history certainly supports the notion that there is a constitutionally cognizable harm in forcing taxpayers to pay tithes, even to their own churches; but that history dissolves when applied to using general revenue to fund the provision of public services, even by religious organizations. There may be prudential [*746] reasons to conclude that taxpayers should have standing to challenge governmental support for religious instruction, but they are not rooted in nonestablishment norms of the early republic. Yet the Court and scholars have largely ignored a practice that casts light on the historical understanding of the Establishment Clause: from the Revolution through the Civil War, the federal government partnered with missionaries to educate Native American students. At first ad hoc, the practice became a full-scale program with the Civilization Fund Act of 1819. Presidents Washington, Jefferson, Madison, and Monroe all actively participated. Intriguingly, no one objected to the partnerships on constitutional grounds. This is the first Article to place this practice in its cultural, political, and constitutional context, to consider its implications for the intellectual and political history of disestablishment, and to wrestle with its potential implications for contemporary church-state doctrine.
John Greil, The Unfranchised Competitor Doctrine, 66 Vill. L. Rev. 357, (2021)
Courts have long resolved claims of unfair competition and protected property rights from unlawful interference. But when Uber upset the property right of the taxi medallion, medallion holders were almost entirely unsuccessful in the resulting litigation. Takings claims against local governments failed, as did unfair competition and antitrust claims against the company. They failed because courts supposed the taxi companies' property did not include the right to exclude competition, and medallion holders lacked a cause of action to privately enforce regulations limiting the number of market participants. This Article examines these suppositions and finds that both are misguided. To explain why, it unearths a long-neglected doctrine that turns some of competition law's foundational premises on their head. One type of public franchise right - which this Article calls a protected special franchise - includes the right to exclude unauthorized competition. Courts of equity (as well as of law) recognized a cause of action to protect this right. This kind of claim - which the Article names "the unfranchised competitor doctrine" - allows a franchisee to enjoin a competitor that is operating without lawful authorization. At law, it permits the franchisee to recoup lost custom from the competitor. This Article applies the doctrine to reveal its departure from takings, antitrust, and unfair competition doctrine. These points of departure inform how the law can and should inform market disruptions, especially when the government has insulated an incumbent player from competition. A better understanding of the unfranchised competitor doctrine provides broader lessons for how property law and equity doctrine can shape today's marketplace. It highlights the shift in regulation of "big tech" companies towards private regulatory enforcement. And it presents a variety of competition law, operating outside of the consumer welfare paradigm, that provides leverage for a variety of stakeholders. This Article is the first scholarly treatment of the unfranchised competitor doctrine in over fifty years. It clarifies the law of unfair competition in times of technological upheaval and regulatory transition. And it details a new way of thinking about who will pay for the costs of technological and market change.For instance, a man has a right to set up a shop in a small village which can support but one of the kind, although he expects and intends to ruin a deserving widow who is established there already. - Oliver Wendell Holmes, Jr. 1
Lloyd Hitoshi Mayer & Zachary B. Pohlman, What Is Caesar's, What Is God's: Fundamental Public Policy for Churches, 44 Harv. J.L. & Pub. Pol'y 145 (2021)
Bob Jones University v. United States is a highly debated Supreme Court decision, both regarding whether it was correct and what exactly it stands for, and a rarely applied one. Its recognition of a “fundamental public policy doctrine” that could cause an otherwise tax-exempt organization to lose its favorable federal tax status remains highly controversial, although the Court has shown no inclination to revisit the case, and Congress has shown no desire to change the underlying statutes to alter the case's result. That lack of action may be in part because the IRS applies the decision in relatively rare and narrow circumstances. The mention of the decision during oral argument in Obergefell v. Hodges raised the specter of more vigorous and broader application of the doctrine, however. It renewed debate about what public policies other than avoiding racial discrimination in education might qualify as fundamental and also whether and to what extent the doctrine should apply to churches, as opposed to the religious schools involved in the original case.
John Infranca, Differentiating Exclusionary Tendencies, 72 Fla. L. Rev. 1271 (2020)
Residents of wealthy suburbs also have an interest or stake in their community and personhood interests tied to the preservation of its existing character. Given that addressing one problem (preserving neighborhood character) might call for situating power at the local level in a way that undermines efforts to address another problem (housing supply and affordability), does the principle of subsidiarity provide any insight on how we might allocate control in an intellectually consistent manner? This Article suggests that subsidiarity, upon deeper reflection, offers a way out of this seeming dilemma. Subsidiarity, which is a prevalent component of European law, 189originated in Catholic social doctrine. 190 [*1312] Importantly, and often lost in the course of the term's translation to the American context and debates over federalism and local control, subsidiarity "is linked in Catholic thought to ideas of social solidarity and the importance of mediating institutions in order for people to lead good and fulfilled lives." 191As Pope Benedict XVI wrote in his Encyclical Letter Caritas in Veritate: "The principle of subsidiarity must be closely linked to the principle of solidarity and vice versa, since the former without the latter gives way to social privatism, while the latter without the former gives way to paternalist social assistance that is demeaning to those in need." 192Relatedly, subsidiarity, as originally understood, functions in service to both individual flourishing and the common good. 193Pope John Paul II weaved together these ideas, remarking that in "exceptional circumstances" a "community of a higher order" may be justified in intervening in the functioning of a "community of a lower order" for "urgent reasons touching the common good." 194Collectively, then, the concept of subsidiarity suggests a set of three interrelated principles. First, social institutions, including government, exist for the purpose of enabling individuals to flourish. Second, individuals are most likely to flourish to the extent that they can actively participate in decision-making, something they are more likely to do when power is placed at a lower level, closer to the individual. Third, the complementary [*1313] principles of solidarity and the common good temper subsidiarity, providing a limit on tendencies towards privatization and exclusion.
H. Justin Pace, The "Free Market" For Marijuana: A Sober, Clear-Eyed Analysis of Marijuana Policy, 24 Lewis and Clark L. Rev. 1219 (2020)
This Article is the first to use this situation to examine the value offered by our legal and financial infrastructure. An inability to use it hurts marijuana businesses in very real ways. But, nonetheless, marijuana businesses are able to operate - to thrive even. That infrastructure is both more and less valuable than is appreciated, and in surprising ways. Ultimately, this Article advocates federal action that facilitates a continued incremental, state-by-state approach to marijuana reform.
Both John Rawls and Catholic Social Thought would consider potential policy change in light of its expected effect on the poorest. John Rawls, A Theory of Justice (Belknap Press rev. ed. 1999) ("The higher expectations of those better situated are just if and only if they work as part of a scheme which improves the expectations of the least advantaged members of society."); U.S. Catholic Bishops, Economic Justice for All: Pastoral Letter on Catholic Social Teaching and the U.S. Economy P 24 (1986) ("The fundamental moral criterion for all economic decisions, policies, and institutions is this: They must be at the service of all people, especially the poor."). While many of the negative externalities from legal marijuana will fall heavily on the poor, the negative externalities for substitute goods to legal marijuana also fall particularly heavily on the poor. Another approach would be to consider marijuana policy from a fairness perspective, taking into account racial disparities in enforcement of prohibition and harms from marijuana use relative to alcohol use. Cf. Lachenmeier & Rehm, supra note 328, at 5 ("For the society as a whole, the several ten-thousands of alcohol-related deaths considerably outnumber drug overdose deaths.").
Charles J. Russo and William E. Thro, The Demise of the Blaine Amendment and a Triumph for Religious Freedom and School Choice: Espinoza V. Montana Department of Revenue, 46 Dayton L. Rev. 131 (2021)
Espinoza has the potential to play a major role in helping to end what former President George W. Bush described as the "soft bigotry of low expectations." 245This "soft bigotry" condemns many children, especially those from economically deprived backgrounds, to attending low-performing schools from which they have little, if any, chance of succeeding academically and beyond, denying them, their parents, and families opportunities to participate in the seemingly elusive "American Dream." Espinoza thus represents a significant step toward achieving the as of yet unfulfilled promise of Brown v. Board of Education's equal educational opportunities for all of America's children and their families, regardless of their races, creeds, ethnicities, genders, socioeconomic or immigration statuses, or (dis)abilities. 246 Brown's goal of equal educational opportunities for all children and their families is one well worth pursuing, perhaps now more than ever before in the nation's history.
F. C. Saldivar SJ, Africa in the Economy of Francesco: Rethinking the Ethics of the International Financial Order at the Intersection of Tax Justice and Catholic Social Teaching, Volume 1, AfJIEL, (2020)
In 2015, Pope Francis laid out his vision for an integral ecology in his Encyclical on Care for our Common Home Laudato Si’, which flows from an understanding that everything is closely interrelated and that policy solutions to address climate change and poverty will need to be multidimensional and interdisciplinary. In the years since, integral ecology has broadened from a conversation focused on the environment to include a framework for radically rethinking the ethics of the international financial order, a program which has come to be known as the Economy of Francesco. Tax justice, as a concept of global redistributional justice examining means of reducing tax avoidance through the use of haven jurisdictions, is an area where the Catholic Church can be a dynamic, innovative conversation partner for those working to eliminate poverty in Africa. This Article situates Africa in the Economy of Francesco, exploring the intersection of tax justice and Catholic social teaching. This Article provides a primer on the international tax system, highlighting the legal and ethical principles on which it is based. It then explores theories of taxation – how, where, and what to tax – and their implications for tax justice. The Economy of Francesco is then analyzed in detail, discussing Catholic social teaching on taxation and the economy from Vatican II up to the present. The Article concludes with a roadmap for African tax justice within the Economy of Francesco, proposing strategies for policy and advocacy which best leverage the continent’s strengths before key international decision-making fora.
Brigid Sawyer, Comment: Whose Highest and Best? Including Economic Development and Individual Landownership in the Highest and Best Use Standard, 70 Cath. U. L. Rev. 289 (2021)
The creation of this Comment would not be possible without expert guidance and support of Professor Lucia A. Silecchia, for whom the author is extremely grateful. The revised definition of highest and best allows for the competing values of economic potential and individual rights to the property to be analyzed together without placing one superior to the other. Superiority of economic use was one driving motivation behind taking Native American land and allowing economic development to become a public use under eminent domain. With the new definition of highest and best use, we can allow economic development to be a factor in eminent domain valuation without allowing it to be the only factor. When highest and best use provides a concrete and accurate representation of both conflicting interests, we remain true to founding philosophies of property rights, and allow the valuation system to consider both of these goals more comprehensively.
Mark Storslee, Church Taxes and the Original Understanding of the Establishment Clause, 169 U. Pa. L. Rev. 111 (2020)
Since the Supreme Court's decision in Everson v. Board of Education, it has been widely assumed that the Establishment Clause forbids government from 'aiding' or subsidizing religious activity, especially religious schools. This Article suggests that this reading of the Establishment Clause rests on a misunderstanding of Founding-era history, especially the history surrounding church taxes. Contrary to popular belief, the decisive argument against those taxes was not an unqualified assertion that subsidizing religion was prohibited. Rather, the crucial argument was that church taxes were a coerced religious observance: a government-mandated sacrifice to God, a tithe. Understanding that argument helps to explain a striking fact about the Founding era that the no-aid theory has largely ignored--the pervasive funding of religious schools by both the federal government and the recently disestablished states. But it also has important implications for modern law. Most significantly, it suggests that where a funding program serves a public good and does not treat the religious aspect of a beneficiary's conduct as a basis for funding, it is not an establishment of religion.
Sally R. Wagenmaker, Ryan Oberly, and Paul Winters, Religious Tax Reclassification for Public Charities, 33 Tax'n Exempts 34 (2022)
Tax reclassification as a church, an association of churches, or mission society may be an attractive opportunity for many organizations described under IRC Section 501(c)(3), but reclassification should not be undertaken lightly. Careful evaluation of the organization's current operations and governance structure should be made, particularly how strongly religious it is and whether it can likely satisfy the IRS's 14-factor or associational tests. Additionally, the organization should identify whether adjustments are warranted to strengthen its religious identity and, if so, whether such adjustments are in keeping with the organization's mission. Organizational leaders should determine the extent to which additional religious exemptions and related benefits may be available, such as the clergy housing allowance and the ministerial exception. Additional religious liberty protections may be available as well, consistent with the Demkovich court's admonition to honor organizations' First Amendment rights, depending on future religious liberty developments.
