Author Archive

Tax Liens & Tax Deeds: Common Law Rights can Remedy the Disparate Impact on Communities

Michael Taddonio

Gladys Wisner lived on 480 acres of cropland outside of North Platte in Lincoln County, Nebraska, since 1941.[1] At 90 years old and suffering from mini-strokes, Gladys moved from her home of over 70 years to a supervised living facility.[2] Gladys’ eldest of four, Roger, handled all the finances for her and the farm.[3] Unfortunately and unexpectedly, Roger passed away and Gladys’ second son, Robin, stepped in to handle all the finances.[4] In the transition, Robin failed to pay the property taxes one year because he misunderstood the family’s land trust.[5] The County sold a property tax lien on the land to a third party.[6] The original third-party purchaser sold the property tax lien to Vandelay Investments.[7] No one told Robin or Gladys their taxes were delinquent or that interest in their land moved through so many hands.[8]

After paying Gladys’ property taxes for three years, Vandelay sent a letter to Gladys’ retirement home telling her that she would lose her family’s 480 acres if she did not pay three years-worth of property taxes, costs and fees, plus a 14% interest rate.[9] Gladys never received the letter, and Vandelay never sent a letter to Robin.[10] Ninety days after the post office returned Vandelay’s notice, the county transferred the property to Vandelay, free and clear.[11] When Robin found out about the transfer, he offered to pay the total amount of past-due taxes, costs, fees, and 14% interest to keep his family’s land, but Vandelay rejected the payment.[12] Vandelay paid roughly $50,000 in delinquent taxes to receive a farm worth $1.1 million.[13] This is the tax sale process.

Trump Against TikTok: The Limitations to Controlling Foreign Online Applications

Benjamin Fuller

President Trump’s executive order banning the use of TikTok in the United States (U.S.) violates treaties the U.S. has within the World Trade Organization (WTO) and violates Bytedance’s Constitutional due process rights as a corporation. When comparing TikTok with other social media apps, there is not a huge difference in security issues, content manipulation, or what happens with users’ data. The fundamental difference is that TikTok is subject to Chinese government censorship, and a Chinese corporation owns TikTok. The Trump administration, therefore, treats a business differently mainly because the corporation is based in a different country. This Note addresses how the executive order is improper and investigate the possible avenues that TikTok might pursue to invalidate this former President’s ban.

Assisted Suicide: Is There a Right to Die with Dignity, or Only a Duty to Live in Pain?

Brandon Sheffert

            Many patients in America currently suffer from terminal illness, with no option other than to suffer for an indeterminate amount of time. The Supreme Court of the United States denies terminally ill patients the fundamental right to hasten their death through physician-assisted suicide.[1] The case Washington v. Glucksberg declared there was no fundamental right to assisted suicide.[2] Glucksberg denies countless patients, suffering from terminal illness, a dignified end to their suffering.[3]

Revisiting Internet Personal Jurisdiction in a Pandemic: A Shift From a Zippo Sliding Scale Test to a Sliding Categorical Test

Patrick Raya

The COVID-19 pandemic has had a major impact on everyone’s lives. Society, people, and likely even the courts will not be the same afterwards.[1] Our world is shifting away from physical interactions to an increasingly online reality.[2] More day-to-day operations are going virtual.[3] E-commerce has risen to greater heights.[4] Yet the outdated test for internet personal jurisdiction has stayed relatively the same.

The need for a robust internet personal jurisdiction rule is at its peak as the pandemic forced our personal and professional lives to go online.[5] The Supreme Court has not adopted a test for internet personal jurisdiction, leaving lower courts without clear precedent to follow.[6] The most used test for internet personal jurisdiction, the Zippo sliding-scale test, is outdated and should be modernized to reflect our prevalent online presence.[7] Courts cannot rely on the current jurisprudence for internet personal jurisdiction in our increasingly virtual reality. For internet personal jurisdiction to be brought to the modern age, courts need to look “under the hood” and actually parse through a website’s code to see if the website has availed itself of a website visitor’s personal data.

The Lake Erie Bill of Wrongs: An Exercise in Unconstitutional Ordinance Drafting

Joseph Coffey

Residents of Toledo, Ohio, were given a stark warning in August of 2014: “Do not drink the water, do not brush your teeth or prepare food with it, and do not give it to your pets.”[1] This warning came after a particularly dangerous harmful algal bloom (HAB) in the western basin of Lake Erie; just offshore from Toledo.[2] Lake Erie has a history of HABs dating back to the 1960s.[3] HABs died down in the decade before and after the turn of the 21st century, but steadily increased since then.[4] Sensing an abdication of their government’s environmental responsibility—that directly endangered their health and well-being—the people of Toledo worked to enact a Rights of Nature (RoN) ordinance.[5]

Branching Out with a Genus Idea: The Need to Preserve Genetic Biodiversity Through Phylogenetic Metrics in Conservation Law During the Anthropocene

Heidi Guenther

The United States is facing a critical moment in human history and the choices we make will determine the future we will collectively inhabit. Societally, we are still grappling with whether the science of climate change is real and whether humans are the cause of it.[1] In the meantime, species are dying off in all ecosystems at alarming levels.[2] The increase in overall extinction has drastically accelerated since the dawn of the Industrial Revolution and the increase of human-produced greenhouse gases.[3] While we are making steps in the right direction to reduce greenhouse gas production, it is not quickly enough to prevent a warming planet and the ensuing effects on all species.[4] Currently, the way we conserve species focuses on populations that are already threatened, whose numbers are dangerously close to extinction. [5]We should be taking more proactive steps to assist species that are still abundant, so they are capable of adapting through the Anthropocene.[6]

Death by Court: Justices Find Nothing Cruel and Unusual About Prison Conditions that Expose Inmates to Covid-19

Robert Baker

Imagine that you and your friends took a vacation to a five-star resort. Your phone vibrates with an alert that a foreign country has just launched a nuclear missile, and it is undoubtedly on its way to your location. The resort can assist you in departing before the missile arrives. Meanwhile, while cognizant of the danger, the resort’s staff disregards the severity of the crisis.

You and others are stunned when you hear the resort’s response to the many grievances that are circulating amongst the group. Despite knowledge of the danger and the resources to assist you and others, the resort ignores your plea and adds ‘you’ll survive, don’t worry.” However, one staff member disagrees and offers you and others a way out of this travesty. And when the group makes its way to the exit, the head of security for the resort halts you in your path. And to add to this preposterous response, you overhear a command on the head security guard’s radio stating, “this is the owner of the resort; those individuals are prohibited from leaving the resort grounds.” The resort’s security begins to detain you and the group and jokingly says “you were supposed to fill out a request, subject to the review of our board of directors who will be in next week.”

What’s Mine is Yours?: “Live” Gametes as Property and Repercussions for Reproductive Freedom

Lorentz Hansen

The right to own property, legally enshrined in the Fifth Amendment to the United States Constitution, is a fundamental American right.[1] The Fifth Amendment provides that no person shall be “deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”[2] Property rights cover an individual’s rights to something in relation to other persons,[3] including the rights to: possess, use, exclude, dispose of, transfer, and remain free from government seizure without just compensation.[4]

Courts have for decades treated human gametes as legal property when cryogenically preserved outside of the human body, explicitly referring to preserved gametes as a “unique type of ‘property.’”[5] The property rights to those gametes only become relevant, however, once the gametes have left the body and “been transferred to a commercial middleman.”[6] Gametes should be treated as legal property while they are still “live”—meaning inside of the body rather than extracted and/or preserved. The rights to “live” gametes would (as with cryogenically preserved gametes) become relevant when the gametes transfer from one party to another with the potential to make new matter, such as an embryo. During heterosexual intercourse, therefore, the property rights to the live sperm would transfer to the person able to become pregnant. Assuring property rights to live gametes would provide a stronger constitutional basis for reproductive autonomy than the implied “right to privacy” in the Fourteenth Amendment that the Supreme Court relied on in Roe v. Wade,[7] which has been constantly challenged since the ruling.[8]

CRT Bans Disallow Discussion of AZ Election Law Case

By Nicholas Barry Creel | Georgia College and State University, Assistant Professor of Business Law and Ethics

July 21, 2021

The Supreme Court decision in Brnovich v. Democratic National Committee regarding Arizona election laws immediately and predictably drew considerable criticism from numerous voting rights advocates.[1]  The two laws challenged in this instance allowed election officials to discard provisional ballots cast if a voter showed up at the wrong precinct and barred third-party groups from collecting and delivering absentee ballots, also known as ballot harvesting.[2]  Those challenging the laws contended that they violated § 2 of the Voting Rights Act or even possibly the 15th Amendment given the disparate impact these laws would have on voters of color.[3]  However, the Court held that neither law was enacted with discriminatory intent, nor did they present any hindrances beyond what are the “usual burdens of voting”[4].  Therefore, these two laws were deemed permissible acts by the state as it oversaw its elections.[5]

As a law professor, it’s my job to read these decisions so that I may teach the points of law that come from them.  I take pride in doing just that regardless of my personal views as to whether any case was decided “correctly” or not.  It’s on me as an instructor to teach students the points of law from Supreme Court cases, not to impart any political biases I carry.  Setting one’s emotions aside in this process can be difficult, but after years of practice, I’d like to think I’ve become adept at just that.

However, in reading this latest case, I’ve found myself falling increasingly into despondency the more that I think about it.  I am, in all honesty, disappointed in the Court’s decision, but that isn’t what has been eating away at me.  My melancholy is instead fed by the realization that I may be legally barred from even discussing the case should the spate of recent bans on critical race theory (CRT) make their way to Georgia’s universities.[6]

As a primer as to why this is the case, it helps to note that CRT is a diverse field of academic thought but a common thread throughout is that even racially neutral laws can have negatively disparate impacts on racial minorities.[7] In essence, being color blind can still lead to results that leave minorities systematically worse off than whites.[8]

It’s important to note here that I am not a CRT scholar, nor have I ever made an overt decision to try and teach this concept to my students.  Even so, I have at least a basic understanding of it such that I at least know it when I see it. 

To that end, in reading the majority opinion of this case, I saw what is unmistakably a reference to CRT.[9]  While I genuinely doubt this was an intentional reference, their intentions do not affect this determination.  Specifically, in siding with the state of Arizona to uphold these new voting laws, the opinion mentioned that, because of their lower levels of “employment, wealth, and education,’’ neutral and color-blind policies will impede minority voting rates.[10]  In other words, the Supreme Court is concluding that the institutional realities of voting lead to disparate outcomes and a neutral (color blind) policy will “predictably” lead us to this result.  This is, as discussed above, the exact sort of observation that almost any CRT scholar will contend as central to their field of study.

Teaching students this majority opinion is therefore inexorably tied to teaching them a core concept of CRT, regardless of my intention to do so or not. My options are to either not teach the case or to expose my students to a core tenet of this controversial philosophy.  So now I sit contemplating the terrifying reality that banning CRT would functionally prevent me, a law professor, from teaching a Supreme Court decision to my students.  There is perhaps no better illustration of absurdity than this, yet it is the reality I and countless other law professors face.

Were this a mere hypothetical hindrance, I’d almost find it amusingly ironic.  Instead, it’s a very real prohibition that has been enthusiastically embraced by the Republican Party. These bans will stifle educators who face the loss of their livelihood should they even accidentally discuss a theory even most law professors like myself are only vaguely familiar with. 

The result among educators will be a general fear and therefore aversion to ever discussing race in the classroom.  That is what lies at the root of my despondency.  In reading this case and seeing these bans spread, I’ve come to the realization that educators everywhere, even where these bans are not in effect, will be pruning their curriculum to stave off attack.

[1] Reid Wilson, Supreme Court ruling shocks voting rights activists, academics, The Hill (July 1, 2021), https://thehill.com/regulation/court-battles/561190-supreme-court-ruling-shocks-voting-rights-activists-academics.

[2] Brnovich v. Democratic Nat’l Comm., No 19-1257, 594 U.S. ___ at 1 (July 1, 2021).

[3] Id.

[4] Id. at 26.

[5] Id. at 30.

[6] Jack Dutton, Critical Race Theory Is Banned in These States, Newsweek (June 11, 2021), https://www.newsweek.com/critical-race-theory-banned-these-states-1599712.

[7] See T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 Colum. L. Rev. 1060, 1060–67 (1991) (“[W]e are not currently a colorblind society . . . race has a deep social significance that continues to disadvantage blacks and other Americans of color. While the legal strategy of colorblindness achieved great victories in the past, it has now become an impediment in the struggle to end racial inequality.”).

[8] See generally Critical Race Theory: The Key Writings That Formed the Movement passim (Kimberlé Crenshaw et al., eds. The New Press 2010); accord Gary Peller, I’ve Been a Critical Race Theorist for 30 Years. Our Opponents Are Just Proving Our Point For Us., POLITICO (June 30, 2021), https://www.politico.com/news/magazine/2021/06/30/critical-race-theory-lightning-rod-opinion-497046.

[9] See Brnovich, No 19-1257, 594 U.S. at 18 (“To the extent that minority and non-minority groups differ with respect to employment, wealth, and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and non-compliance with voting rules. But the mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote.”).

[10] Id.


About the Author

Nicholas Creel is an Assistant Professor of Business Law and Ethics at Georgia College and State University with a Ph.D. in Political Science from Texas Tech University, a JD from the University of Dayton School of Law, and an LL.M. from St. Mary’s University School of Law.

 

Legal Education

CRT Bans Disallow Discussion of AZ Election Law Case

 

Nicholas B. Creel | Georgia College and State University, Assistant Professor of Business Law and Ethics

July 21, 2021

As a law professor, it’s my job to read these decisions so that I may teach the points of law that come from them.  I take pride in doing just that regardless of my personal views as to whether any case was decided “correctly” or not.  It’s on me as an instructor to teach students the points of law from Supreme Court cases, not to impart any political biases I carry.  Setting one’s emotions aside in this process can be difficult, but after years of practice, I’d like to think I’ve become adept at just that.

However, in reading this latest case, I’ve found myself falling increasingly into despondency the more that I think about it.  I am, in all honesty, disappointed in the Court’s decision, but that isn’t what has been eating away at me.  My melancholy is instead fed by the realization that I may be legally barred from even discussing the case should the spate of recent bans on critical race theory (CRT) make their way to Georgia’s universities.[6]

Read the full post here.


A New Vision for IRAC: Applying a Restorative Justice Methodology to Legal Analysis

  Robert Sand | Vermont Law School, Founding Director, Center for Justice Reform

November 20, 2020

Generations of law students have learned the IRAC method of legal analysis. IRAC: Issue – Rule – Apply – Conclude. IRAC provides a consistent and straightforward way to analyze legal disputes in all areas whether property, torts, contracts, criminal law, or anything else typically studied in law school. The clarity of IRAC informs legal reasoning, the practice of law, and judicial decisions. For all its straightforward simplicity, IRAC is also remarkably reductionist.

Noted Norwegian criminologist Nils Christie writes: “Training in law is training in simplification. It is a trained incapacity to look at all values in a situation, and instead to select only the legally relevant ones, that is, those defined by the high priests within the system to be the relevant ones.”

Perhaps Christie goes too far, denying the power of the law to effect change. Yet, he is correct about the reductionist nature of the law and, by extension, legal education. Human disputes, and the harm at their root, are complex, messy, emotionally laden matters. We have developed a legal system to place a framework around all that messiness and in the process have lost, perhaps, some of our humanity.

Read the full post here.


 

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