Volume 2021, No. 4

PDF linkTable of Contents


PDF linkSpillover Tax Precedent

by Susannah Camic Tahk

We know that pro se litigants often lose. However, we know almost nothing about the circumstances in which they win. One such circumstance, this Article finds, is when they can take advantage of favorable precedent. This Article calls those favorable precedents for pro se litigants “spillover precedents.” Spillover precedents are cases with redistributive downward ripple effects that subsequently benefit pro se litigants. This Article is the first to examine the potential redistributive effects of precedent. To focus the inquiry, this Article presents an empirical study of tax court cases from 2015– 2019 in which pro se litigants won. This analysis revealed the major role of spillover and details how pro se taxpayers use spillover precedent, describing major examples and identifying patterns in them. This Article then examines the normative implications of spillover precedent, suggesting policy interventions, focusing in particular on the potential role of low-income taxpayer clinics, and considering the distinguishing features of the tax context.

PDF linkVirtual Access: A New Framework for Disability and Human Flourishing in an Online World

by Johanna Smith & John Inazu

While many commentators have noted the wealth and class disparities that emerge from the digital divide, disability adds another important lens through which to consider questions of access and equity. Online accessibility for disabled people has fallen prey to the same assumptions and impediments that led to the Americans with Disabilities Act (“ADA”) addressing disability access in the offline world. Addressing these shortcomings requires a significant conceptual shift in our understanding of “access,” even among disabled people. Offline, the sidewalk or doorway hindered access to those who needed assistance walking or moving. Today’s virtual sidewalks and doorways complicate access in fundamentally different but no less important ways.

This Article reframes the legal, normative, and theoretical dimensions of the intersection of disability and online access to suggest a more granular approach than those provided by existing judicial and scholarly interventions. Our approach sets forth three recommendations. First, we suggest greater attention to online analogues for offline legal categories that create different zones for human interaction: public forums, public accommodations, non- public spaces, and what one of us has termed “private public forums”—the privately owned venues that functionally replace the public forum, especially online. Second, contrary to the approach adopted in some jurisdictions, we propose eliminating any requirement of a physical nexus between an online site and an in-person operation. Third, we recommend directing most regulatory requirements toward three kinds of commercial entities whose power, influence, and design functionality best position them to remedy existing gaps in online disability access—entities we call design services, communication platforms, and online mediators. Design services provide browsers, operating systems, and website design tools and templates. Communication platforms connect individual users through social media and other sharing mechanisms. Online mediators aggregate information to connect customers with product and service providers. If these three kinds of companies can set design norms for individual websites and apps, much of the framework for disability access will be in place. But as we will explain, not all individual users can or should be forced to incur compliance costs related to website and application design—some small sites are properly exempted from such oversight. For this reason, we suggest that design services make disability access the baseline; that communication platforms and online mediators implement accessibility once they reach certain size or revenue thresholds; and that certain users be permitted to opt out of disability access features.

PDF linkAssessing the NCAA as a Compliance Organization

by Nathaniel Grow & Todd Haugh

The National Collegiate Athletic Association is in essence a compliance organization. This is evidenced by the NCAA’s stated and functional mission—one supported by a considerable and growing administrative apparatus—that is aimed at ensuring its member schools abide by the Association’s rules. While a significant body of academic literature analyzes the NCAA and its bylaws, surprisingly none of these prior works evaluates the effectiveness of the NCAA as a compliance organization. This omission is glaring considering the past decade has seen a rich body of work emerge regarding the field of corporate governance and organizational compliance. And it is all the more surprising given the sustained and withering critiques of the NCAA centered on the Association’s inability to adequately and fairly police the integrity of college athletics.

This Article seeks to fill this conspicuous gap in the literature by analyzing the NCAA through the lens of corporate compliance. What it finds, after applying theories based in behavioral ethics, criminology, and procedural justice, is that the Association’s legislative and enforcement apparatus has become so overwrought, so “overcriminalized,” that it is eroding the legitimacy of the NCAA as a whole. Critically, this delegitimization not only decreases compliance effectiveness, but also fosters future wrongdoing by allowing players, coaches, staff, and third parties to rationalize rule-breaking behavior. In its misguided attempts to increase the integrity of college sports, the NCAA has damaged its own legitimacy, thereby creating conditions ripe for further rule violations. The origins, operation, and examples of this phenomenon are detailed, but so, too, are the implications for the NCAA, which must learn from corporate compliance if it is ever to effectuate its laudable, yet increasingly embattled, mission.


PDF linkThe Nondelegation Schism: Originalism Versus Conservatism

by Jamey Anderson

The Supreme Court appears poised to breathe new life into the nondelegation doctrine, a judicially created theory of constitutional law stating that Congress may not delegate its legislative power to the executive or any other entity. Scholars have long criticized the nondelegation doctrine as poorly defined, unsupported by constitutional text and history, and impossible to implement without a major expansion of the judiciary’s role. This Comment adds to this scholarship by arguing that the conservative majority’s proposed nondelegation revival is best understood not as the resurrection of a unified theory but rather as two distinct doctrinal inventions reflecting the ideological commitments of their chief proponents. Whereas Justice Gorsuch fashions an originalist standard from cases selected from before the New Deal Era, Justice Kavanaugh applies a modern functionalist test to invalidate major rules disfavored by conservatives. Each approach has something the other lacks— historical pedigree on the one hand, analytical simplicity on the other. Although the Justices appear eager to blend their approaches, the Justices’ approaches are in fact fundamentally incompatible with each other and deeply flawed on their own terms. Indeed, the facts of Justice Gorsuch’s old cases largely fail Justice Kavanaugh’s test—and betray expansive delegations at odds with Justice Gorsuch’s own understanding. Justice Kavanaugh’s approach likewise fails in its attempt to graft an interpretive test of convenience onto constitutional law. The rift between these approaches is more than academic, as the two standards produce different results in a contested area of regulatory law—federal greenhouse gas limits. This finding suggests that supporters of the administrative state should focus not just on whether the nondelegation doctrine is revived but also on what form it takes. How the Court resolves this split may provide an answer to a question likely to define the new majority: When does originalism trump conservatism?

PDF linkBut Instead Expose Them: Public Access to Criminal Trials in U.S. Law and Canon Law

Paul M. Matenaer

Public access to criminal trials is an indispensable attribute of the Anglo- American legal system. The “rule of publicity” has been the rule in England from time immemorial and was a fundamental attribute of the judicial systems of the early American colonies. The Supreme Court has concluded that “a presumption of openness inheres in the very nature of a criminal trial under our system of government,” and the First and Sixth Amendments safeguard the public nature of criminal trials.

Yet, as essential as publicity is to the American legal system, secrecy is to the Catholic Church’s legal system: canon law. Amidst calls for greater transparency and accountability in the Church, recent developments in canon law have only taken small steps to lift the pall of secrecy. Meanwhile, U.S. Catholics have discovered many reasons to distrust their leaders, stemming from sexual and financial misconduct and cover-up. While some canonical scholars have recognized the benefit of employing secular models of transparency, none has endeavored to provide a method of incorporation or to suggest concrete changes.

This Comment begins that conversation by comparing public access in criminal trials under U.S. law and canon law and by examining whether canon law can successfully incorporate any elements of American law. Due to fundamental differences in the two legal systems, many elements cannot be incorporated, but the core values promoted by the American legal system’s public access doctrine are values inherent in good governance in general. This Comment applies these values to criminal trials in canon law and provides three concrete proposals that uphold the fundamental values of good governance and accomplish the express purposes of the Church’s penal system. Rather than hide its criminal trials in secret, the Church should instead expose them.


PDF linkAvoiding a Litigation Free-for-All: Clarifying LLC Members’ Standing to Sue After Marx v. Morris

by Josi Wergin

When a business owner or manager does something that harms the business or the other owners, who can sue that person? Corporate shareholders may bring direct actions to redress harm to themselves but must bring derivative actions to redress harm to the corporation. But how does the direct- derivative distinction translate, if at all, to limited liability companies (LLCs), a relatively new, flexible business form? In its 2019 decision in Marx v. Morris, the Wisconsin Supreme Court held that the owners (“members”) of an LLC may bring direct claims against managers or other members for harm to the member or to the LLC. However, letting members sue directly for harm to the LLC permits them to improperly assert the LLC’s legal rights; obtain preemptive, duplicate, or excessive recoveries; and invoke judicial power to resolve mere disputes over business judgment.

This Note argues that Wisconsin (and other states with ambiguous LLC standing statutes) should adopt LLC statutes that clearly distinguish direct from derivative actions, such as the Revised Uniform Limited Liability Company Act (RULLCA). It also argues that courts should employ the “direct harm” rule to determine when each type of action is proper. By clearly distinguishing direct from derivative claims, statutes and courts can preclude parties from unjustly asserting the legal rights of others.