Volume 2014, Number 3
Contract law is celebrated for empowering private parties to en-act customized legal rules. Anyone can summon state actors to en-force personally tailored laws that govern private agreements. Yet this unique power is obviously limited in scope and context, and it is important to consider where and why we draw these borders. One can write a contract that annuls tort liability, for instance, but criminal laws cannot be overruled by contract—even in a hypothetical lawless commune where everyone is willing to accede to the change. One of the most interesting and persistent theoretical border-lands relates to gift promises. The consideration doctrine formally bars gift promises from the domain of contract law, but there are a number of side doors—such as reliance, moral obligation, and irrevocable trusts—that permit some gratuitous promises to be treated like contractual obligations. These one-way promises do involve future transfers, after all, and they feel very close to bilateral exchange. Con-tract law has refused to convert all gift promises into binding obliga-tions, however, and it has even made itmore difficult to form mindful commitments here by repealing the efficacy of the seal.
But there is another, previously unexplored dimension to this puzzle. Contract law embraces special rules that protect third-party beneficiaries—outsiders who enjoy legal enforcement rights despite a lack of privity. Moreover, these rights can be vested as irrevocable. This Article argues that this obscure corner of contract law should receive independent legal significance,such that a mindful promisor should be able to recruit a willing counterparty to make a binding gift promise in any context. It demonstrates this third-party beneficiary technique, evaluates the implications for the borders of contract law, and concludes that vested third-party beneficiary rights are a feasible (though unexpected) device for moving gift promises comfortably in-to the realm of contract law
Congress established a permanent Joint Committee on Taxation (the JCT) as part of the Revenue Act of 1926. Initially, the JCT was granted the broad oversight authority typically enjoyed by congressional committees. Under the 1926 Act, the JCT would investigate the operation of the tax laws and examine how the tax system affected the public. In the Revenue Act of 1928,Congress charged the JCT with an additional role in tax administration. Under that act, the JCT would review any large refund that the IRS proposed to issue to a
taxpayer. The statute (now codified in § 6405(a) of the Internal Revenue Code) did not grant the JCT any explicit power to prevent the issuance of large refunds, but instead simply required that the IRS give the JCT thirty days’ notice before issuing any of those refunds. Over time, the JCT has come to play more than a purely advisory role, and the IRS will not issue refunds without JCT approval.
This Article suggests that Section 6405(a) raises separation of
powers questions because it mandates systematic congressional involvement in tax refund determinations, a task long considered inherently executive. Constitutional issues related to the JCT’s involvement in refund determinations have gone largely unexplored in the scholarly literature, thought a few commentators have briefly analyzed the refund review function under INS v. Chadha. Commentators apparently agree that the refund review function poses no constitutional problems because the JCT lacks a statutory veto over IRS refunds.
This Article argues that the absence of a statutory veto does not
automatically validate the JCT refund review function, and that
§ 6405(a)’s thirty-day holding period instead violates the separation of powers. In reaching this conclusion, this Article uses a largely formalist, text-centered approach to separation of powers questions. Under this approach, § 6405(a) violates the separation of powers because it goes outside of the “legislative power” granted to Congress in Article I.
Religious Institutions, Liberal States, and the Political Architecture of Overlapping Spheres
Mark D. Rosen | 2014 U. Ill. L. Rev. 737
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Individual religious liberty enjoys strong legal protections sup-ported by an underlying contemporary consensus in the United States. This legal and cultural consensus took root after a wave of individuals’ complaints of government interference with their ability to practice their religion’s dictates. But the current claims of religious interference have been increasingly asserted on behalf of an array of religiously affiliated institutions. Unlike previous claims, there is no normative consensus as to what, if any protections, these myriad institutions should receive. This uncertainty can be seen in the federal government’s chaotic responses—from recent Supreme Court case law to the Affordable Care Act’s contraception mandate. Scholars have staked out two opposing positions. One group has argued that churches and affiliated religious institutions should be entitled to legal autonomy. A second camp has argued that the state is the singular source of legal authority in modern politics and that all authority and status of a church is entirely derivative of its members’ rights of voluntary association and conscience. This article proposes a third framework to determine the appropriate relationship between religious institutions and the state, what it dubs the Religious Institution
Principle. Drawing on John Rawls, this framework rejects both the view that religious institutions are jurisdictionally independent of the modern state, and that religious institutions’ status is derivative of its members’ rights of association and conscience. Instead, the Article argues that religious institutions cannot be reduced to the individuals who compose them, but instead that the protections they deserve may be “greater than the sum of the parts” of their constituent members. The Religious Institution Principle provides a principled approach for determining what counts as a religious institution and what protections such institutions are entitled to.
Why Did Law Professors Misunderestimate the Lawsuits Against PPACA?
David A. Hyman | 2014 U. Ill. L. Rev. 805
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Almost without exception, elite law professors dismissed the possibility that the Patient Protection and Affordable Care Act (variously called “PPACA,” “Obamacare,” and the “Affordable Care Act,”) might be unconstitutional—but something went wrong on the way to the courthouse. What explains the epic failure of elite law professors to accurately predict how Article III judges would handle the case? After considering three possible defenses/justifications, this Article identifies five factors that help explain the erroneous predictions of our nation’s elite law professors,who were badly wrong, but never in doubt.
The Article argues that we can and should protect the liberty of both sides in the culture wars; that conservative churches would do well to concede the liberty of the other side, including on same-sex marriage, and concentrate on defending their own liberty as conscientious objectors; and similarly, that supporters of rights to abortion, contraception, gay rights, and same-sex marriage would do well to concentrate on securing their own rights and to concede that conscientious objectors should rarely be required to support or facilitate practices they view as evil.
Holy Smokes! Can the Government compel Tobacco Companies to Engage in Inflammatory Commercial Speach?
Kristen A. Hosack | 2014 U. Ill. L. Rev. 881
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In 2009, President Obama signed the Federal Smoking Prevention and Tobacco Control Act, permitting the FDA to include textual and photographic warnings about the perils of smoking on cigarette packs. The health risks of cigarettes are well known by the American people. Courts are split, however, on whether the inclusion of these warnings violates First Amendment protection of freedom of speech. This Note examines the history of America’s regulation of the tobacco industry. It then analyzes the different conclusions reached by the Sixth Circuit and D.C. Circuit on the constitutionality of these warnings, scrutinizing the tests that each court used. Finally, this Note argues that, if the Supreme Court chooses to resolve this circuit split, it should use a modified version of the D.C.Circuit’s test. If this test is applied, the Supreme Court will find that mandating such warnings on cigarette packs is unconstitutional.
Hate Crime and Punishment: WHy Typical Punishment does not Fit the Crime
Laura Meli | 2014 U. Ill. L. Rev. 921
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This Note explores the arguments for and against hate crime laws, ultimately determining that changes are necessary to balance the harm to victims and the burden on offenders caused by enhanced penalties. Hate crime laws provide for enhanced penalties when the perpetrator is motivated by hatred of the victim’s race, gender, sexual orientation, etc. This Note details the history of hate crime laws in the United States and sets out the debate surrounding them. On one side of the debate are those who support enhanced punishments because of the despicable nature of hate crimes. The other side has advocated for abandoning hate crime laws, arguing that such laws incorrectly punish hateful thoughts.
This Note also includes an extensive look at philosophical theories of punishment, and how enhanced penalties for hate crimes fit within these theories. This Note ultimately concludes that effective
punishment must involve elements that change the hateful mindset of
the perpetrator. Finally, this Note asserts that hate crime punishment must be just, only punishing criminals in proportion to the harm that they have caused.
Death from Above: The Executive Branch's Targeted Killing of United States Citizens in the War on Terror
Marisa Young | 2014 U. Ill. L. Rev. 967
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On September 30, 2011, the Obama administration announced the death of alleged terrorist Anwar al-Awlaki, the first U.S. citizen to
be the subject of a targeted drone strike. While targeted killings are not a recent development in the international community, they have been increasingly utilized following the events of September 11, 2001 and the United States’ subsequent War on Terror. Embroiled in an asymmetric war against a network of nonstate actors, the United States has increasingly relied upon targeted killings to defend against terrorist threats.
The addition of U.S. citizens to government “kill-lists,” however, raises troubling questions regarding due process and separation of powers. This Note discusses the recent historical background and constitutional considerations relevant to targeted killings, and analyzes the inadequate constitutional protections currently employed by an overly powerful executive branch.
In light of these concerns, this Note ultimately recommends that the executive branch adopt a new form of judicial review that allows a neutral decision maker to review evidence and ensure that decisions to target U.S. citizens are justified, thereby preventing errors and providing targeted citizens with a minimum level of due process.