Faculty Blog: Taxation, Tyranny and Constitutional Amendment by Initiative

By: Lawrence Friedman

Tasked in 1779 with drafting a new constitution for Massachusetts, John Adams envisioned a form of government designed not to thwart democracy, but to channel its best impulses and discourage the worst. Adams believed individual liberty would be secure and tyranny held at bay only so long as the great powers of government were separated and each branch appropriately checked. As stated in Article 30 of the Massachusetts Constitution, the goal was a government “of laws and not of men.”

On February 6, the Supreme Judicial Court heard arguments in a case that threatens to undermine Adams’ constitutional vision. In Anderson v. Healey, the court is faced with the question whether a majority of the people can amend the constitution by initiative to impose a tax on a minority of their fellow citizens. The Massachusetts Attorney General is defending the initiative petition as valid under the constitution; if she prevails, the proposal will provide a roadmap for citizens seeking to impose taxes on nearly any group that it can convince a majority of the people should be taxed.

Ratified in 1918, Article 48 of the Massachusetts Constitution permits amendments to the constitution via the initiative process. But it forbids measures that “make a specific appropriation of money from the treasury.” If the people cannot appropriate money, it follows they cannot raise it, either. Article 48, after all, does not purport to alter the legislature’s plenary authority to budget for the Commonwealth’s spending needs, and it would make little sense to allow the legislature to control appropriations but not the revenue stream. Further, Article 48 provides that the legislature has the responsibility to “raise by taxation” the means to fund legal obligations created through an initiative, a provision that would be superfluous if the people could both propose obligations and impose the taxes to pay for them through the initiative process. Continue reading

Faculty Blog: SCOTUS to Hear eCommerce Sales Tax Case

By: Natasha Varyani, Adjunct Professor of Law

The United States Supreme Court is scheduled to hear arguments in the case of South Dakota v. Wayfair, Inc., addressing the issue of when sales tax needs to be collected by online retailers engaged in eCommerce.  In its 1992 decision in Quill v. North Dakota, the Court ruled that a retailer must have a “physical presence” in a state in order to be subject to that jurisdiction’s sales and use tax laws.  The Court in Quill was revisiting its 1967 holding in National Bellas Hess v. Department of Revenue, in which it reviewed the authority of a state to impose its sales and tax laws on an out of state entity doing business in state.

Both Bellas Hess and Quill dealt with retailers that conducted sales through mail order, and their only presence in state was the catalogue of products offered.  The Court in Quill cited “tremendous social, economic, commercial and legal innovations” that had occurred in the twenty-five years that had passed since its holding in Bellas Hess to justify overruling that former holding. 

Twenty-six years have passed since Quill.  In that time, the change in social, economic, and commercial life has been both dramatic and extremely rapid, so it only follows that the law should adapt in response.  The holding in Quill articulated the “physical presence” standard, which demanded that, in order for a state to impose its sales and use tax laws on a retailer, that retailer was required to have a physical presence in state.  Understanding the standard for imposition of sales tax, some retailers, notably Amazon.com, selected jurisdictions for their headquarters and warehouses intentionally to avoid having a physical presence and therefore being subject to sales and use tax laws in high tax jurisdictions.  Though Amazon.com has a business plan that focuses less on state sales tax than it formerly did, online retailers like  Wayfair (the plaintiff in this suit), Overstock.com, and NewEgg have benefitted from the physical presence standard set forth in Quill.

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Article Preview: Re-Reading Alafair Burke’s The Ex

There can be no doubt that the legal profession is frequently depicted in popular culture. Take a look at the front page of any major newspaper, and you will invariably find stories depicting the latest political development, sensational trial, or other legal phenomena. But in recent decades, law-and-literature, as a discipline, has been described as “ailing” and in need of a “cure.” The law-and-literature movement has been criticized and the presence of humanities courses in law schools has declined.

In his forthcoming article, I. Bennett Capers, a professor of law at Brooklyn Law School, comments on the role of Alafair Burke’s novel The Ex within the law-and-literature movement. The Ex is a legal thriller in which Olivia Randall, one of New York City’s best defense attorneys, takes on the case of an old boyfriend who has been accused in a triple homicide. Through its use of the law as grounding for its entertainment value, Capers argues The Ex is not only a product of the law-and-literature movement, but also a statement that the movement may still be alive and thriving.

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Article Preview: Kooks, Crooks, Brutes or Rhadamanthine Opacities: Some Thoughts on the Depiction of Judges in Popular Fiction

In fictitious literary and cinematic works, American judges are often portrayed as unethical, corrupt, eccentric, or simply brutal; however, the overwhelming majority of American judges are doing their difficult jobs fairly well. In his Article, Kooks, Crooks, Brutes or Rhadamanthine Opacities: Some Thoughts on the Depiction of Judges in Popular Fiction, U.S. District Judge Michael A. Ponsor takes issue with the cynical light cast on American judges and explains why such a view exists.

At the outset of his Article, Judge Ponsor readily admits that there are issues of incompetence and corruption within the judicial branch of the government, but explains that the judicial branch, as a whole, is the most respected and approved branch of government. Judge Ponsor identifies several works of impressive contemporary literature that highlight the negative aspects of the judiciary. Specifically, Judge Ponsor highlights the negative depictions of judges in novels, such as A Time to Kill and To Kill a Mockingbird, and explains that, while these depictions of judges may be entertaining, they are unflattering, incorrect, and problematic.

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Faculty Blog: The President, the Courts, and National Security

By: Lawrence M. Friedman

Professor Eric Posner recently explained a dilemma the federal courts face in the wake of President Trump’s election: how to check unconstitutional excesses while, at the same time, respecting the deference afforded “the president on national-security matters” in light of the president’s ability to act “on the basis of classified information,” coupled with the “need to move quickly.”

That deference turns on a level of trust of the executive that courts, as exemplified by the unanimous decision of the Ninth Circuit Court of Appeals in State of Washington v. Trump, may not hold. Posner warns of the possibility that the president, faced with many such decisions, might defy the courts. This raises the question whether the possibility of defiance, in itself, justifies adhering to the traditional deference the courts accord national security decision-making.

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Article Preview: Lawyering Practice: Uncovering Unconscious Influences Before Rather Than After Errors Occur

It will likely come as no shock that most lawyers will inevitably face ethical challenges shortly after they begin to practice law. The types of ethical dilemmas faced by new attorneys, and the manner in which those ethical challenges are resolved, is largely dependent on the environment in which the new attorney has chosen to work. Associate Dean Catherine O’Grady’s recent legal scholarship has focused on the ethical decision-making of new attorneys working in private law firms. In her latest article, A Behavioral Approach to Lawyer Mistake and Apology, Associate Dean O’Grady argues that senior lawyers in law firms should examine ethical missteps made by lawyers through the lens of social psychology. By focusing on behavioral principles of psychology, Associate Dean O’Grady believes, senior lawyers in law firms will be in a better position to address ethical lapses after they occur and to prevent their recurrence by developing leadership models that allow them to pass their insights on to the firm’s new lawyers.

In Professor Wallace J. Mlyniec’s response to O’Grady’s article, titled Lawyering Practice: Uncovering Unconscious Influences Before Rather Than After Errors Occur, Professor Mlyniec argues that Associate Dean O’Grady’s after-the-fact approach to rectifying ethical lapses should be coupled with more robust training and contemporaneous reflection. Professor Mlyniec, drawing from his experience as a long-time clinical law professor, maintains that training that allows for reflection by new attorneys prior to beginning work on a client matter will make the attorney cognizant of problematic ethical and professional issues before they arise. Professor Mlyniec argues that a deterrence-oriented training model, although costly and time-consuming, will increase the probability that ethical issues are dealt with before they come to fruition. This model will allow firms to better prevent any potential damage arising from ethical and professional lapses of the firm’s new attorneys.

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Faculty Blog: The Most Important Qualification for a Post in President Trump’s Cabinet

By: Lawrence M. Friedman and David M. Siegel

As the confirmation process for President Trump’s cabinet comes to a close, it’s worth noting that Senators have failed to question any of the nominees about their understanding of their constitutional responsibilities under the Twenty-Fifth Amendment, much less whether any would be willing to fulfill those responsibilities. That Amendment provides for succession when the President “is unable to discharge the powers and duties of his office”—either when the president declares this inability or when a majority of “principal officers of the executive departments,” together with the vice president, make that determination. It is this latter situation that we should hope the members of President Trump’s cabinet fully appreciate.

This President has insisted, throughout the campaign and into his first weeks in office, on the truth of facts at odds with objective reality—sometimes harmless, and at other times in ways that have antagonized America’s longstanding allies. To their credit, some cabinet nominees have acknowledged, tacitly, their divergence from the Chief Executive on many of these points. But that acknowledgment is just the start: the Constitution charges the members of the cabinet with determining whether the President’s inability to accurately perceive and respond to objective reality poses a threat to our national security. Should they make such a determination, they, together with the Vice President, have a duty to act on that information and trigger the succession provisions of the Twenty-Fifth Amendment.

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Article Preview: Intentional Infliction of Emotional Distress & The Hulk Hogan Sex Tape

Most people know that, in 2016, Terrence “Hulk Hogan” Bollea was awarded $140 million by a Florida jury after successfully suing Gawker Media, LLC for invading his privacy when it released a video of Hogan having sex with a friend’s wife. However, it often goes overlooked that Hogan was also successful in a separate cause of action for intentional infliction of emotional distress (IIED). Professor Clay Calvert explores this aspect of Hogan’s case in his Article, Intentional Infliction of Emotional Distress & The Hulk Hogan Sex Tape: Examining a Forgotten Cause of Action in Bollea v. Gawker Media, the Gap It Reveals in IIED’s Constitutionalization, and a Path Forward for Revenge Porn Victims.

At the outset of his Article, Professor Calvert explores Florida’s legal definition of IIED and its elements, as applied in Bollea. He also describes the constitutional layer of protection for defendants in speech-based IIED claims added by the U.S. Supreme Court in Hustler Magazine v. Falwell and Snyder v. Phelps. Specifically, Professor Calvert utilizes the decisions reached in Falwell and Snyder to explain the tension between IIED and the freedom of speech protected by the First Amendment. Professor Calvert asserts that while these cases strengthened First Amendment protections, they alternatively narrowed the circumstances in which an IIED claim can prevail.

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Article Preview: A Behavioral Approach to Lawyer Mistake and Apology

Why do new attorneys make mistakes? How can new attorneys remedy these mistakes and avoid them in the future? How can law firms provide the guidance necessary to assist new attorneys in their transition to the profession? In her article, A Behavioral Approach to Lawyer Mistake and Apology, Associate Dean Catherine Gage O’Grady utilizes testimonials from practicing attorneys, principles from behavioral psychology, and examples from the medical profession to answer those questions; and she provides a detailed behavioral analysis of lawyering and legal ethical decision-making.

Associate Dean O’Grady begins her article by reviewing several concepts, such as overconfidence bias and cognitive dissonance, that are fundamental to an understanding of behavioral psychology. She argues that these concepts lead to mistakes in the law firm setting, and she provides several examples of how the concepts may affect new attorneys. For example, Associate Dean O’Grady states that confirmation bias—“the tendency to focus on information that confirms our decisions and to undervalue information that cuts the other way”—may lead a new attorney to make significant mistakes while performing legal research. This is because a new attorney will focus his or her research efforts to confirm legal conclusions already reached, even if those conclusions were wrong from the beginning. She also argues that cognitive dissonance—“a state of tension that occurs when a person realizes she is holding two psychologically inconsistent idea or beliefs”—can also result in lawyering mistakes. Associate Dean O’Grady poses the example that when a new attorney, who thinks of him- or herself as timely and organized, is suddenly faced with a new failure to stay organized or respond to client emails, he or she will experience cognitive dissonance and will likely make excuses for these mistakes. The new attorney, therefore, will be unable to acknowledge his or her mistakes.

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Article Preview: Moral Courage in Indigent Defense

Why do some individuals act more ethically than others, even in similar situations? This is the question Professor Tigran Eldred explores in his article, Moral Courage in Indigent Defense. Professor Eldred narrows this question to a familiar domain from his past work, the many ethical challenges that defense lawyers are confronted with while representing indigent clients.

Professor Eldred’s article—a response to Associate Dean Catherine Gage O’Grady’s article, A Behavioral Approach to Lawyer Mistake and Apologyfocuses around the phenomenon of “moral courage,” the ability of some lawyers to act ethically in the face of pressure to the contrary. He seeks to answer why some lawyers resist the temptations against subpar performance and also offers knowledge on what can be done to encourage greater acts of moral courage by others. While Associate Dean O’Grady’s article focuses on mistake recognition and acknowledgement, Professor Eldred focuses on why people are able to act ethically despite pressures to do otherwise.

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