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Volume 16 - Issue 2


Balancing the Carrot and the Stick: Achieving Social Goals Through Real Property Tax Programs

Bender, Ryan F. | April 17, 2021

The sharp and growing wealth divide in the United States has elicited significant media and public attention over the past decade, with loud calls for achieving social goals through tax system change. While wealth preservation loopholes in the Internal Revenue Code can contribute to wealth inequalities, tax policies that incentivize socially responsible, tax efficient investment offer an attractive tool for estate planning professionals while also promoting social impact programs. Additionally, while direct government investments into low-income community development, land preservation, and food security are important drivers of change, tax policies that push private capital into these causes are equally important to making a social impact. Through the lens of three widely used estate planning strategies, (i) Qualified Opportunity Zone (QOZ) investments, (ii) conservation easement donations, and (iii) special agricultural appraisals, this Article examines the potential for such strategies to offer wealth-preserving tax breaks while directing private capital toward achieving social goals. There are pitfalls to be considered in the analysis of these programs, including inequality in accessing these tax breaks and potential for taxpayer abuse. Regardless, this Article concludes that well-drafted and properly policed incentive-based programs that offer tax discounts in return for private investments of capital into socially beneficial impact areas can offer an appealing alternative to direct government investment programs.

Trade War, PPE, and Race

Hernández-López, Ernesto A. | April 17, 2021

Tariffs on Personal Protective Equipment (PPE), such as face masks and gloves, weaken the American response to COVID. The United States has exacerbated PPE shortages with Section 301 tariffs on these goods, part of a trade war with China. This has a disparate impact felt by minority communities because of a series of health inequity harms. COVID’s racial disparity appears in virus exposure, virus susceptibility, and COVID treatments. This Article makes legal, policy, and race-and-health arguments. Congress has delegated to the United States Trade Representative expansive authority to increase tariffs. This has made PPE supplies casualties of the trade war. In political terms, the Trump administration prioritized increasing tariffs over public health readiness. Regarding race, PPE shortages exemplify the socioeconomic effects of trade policies and add to COVID’s racial disparities.

Pandemic Emotions: The Good, The Bad, and The Unconscious —Implications for Public Health, Financial Economics, Law, and Leadership

Huang, Peter H | April 17, 2021

Pandemics lead to emotions that can be good, bad, and unconscious. This Article offers an interdisciplinary analysis of how emotions during pandemics affect people’s responses to pandemics, public health, financial economics, law, and leadership. Pandemics are heart-breaking health crises. Crises produce emotions that impact decision-making. This Article analyzes how fear and anger over COVID-19 fueled anti-Asian and anti-Asian American hatred and racism. COVID-19 caused massive tragic economic, emotional, mental, physical, and psychological suffering. These difficulties are interconnected and lead to vicious cycles. Fear distorts people’s decision readiness, deliberation, information acquisition, risk perception, and thinking. Distortions affect people’s financial, health, and political decisions, causing additional fears. Emotions have direct health impacts and indirect behavioral impacts, which in turn have their own health impacts. People differ vastly in whether, how much, and when they experience anxiety, complacency, and panic during pandemics. A common path is to feel some anxiety initially, then panic, and finally become complacent. This Article advocates these responses to pandemics: (1) paying people directly monthly pandemic financial assistance, (2) encouraging people to practice mindfulness, (3) gently enforcing Non-Pharmaceutical Interventions, (4) fostering accurate information acquisition about pandemics, and (5) applying psychological game theory to better understand emotions that depend on beliefs about leadership.



Dole, Joseph | April 17, 2021

Joseph Dole is currently incarcerated in Illinois. In this Essay, he reflects on life in prison and the grueling realities of death-by-incarceration.

Note or Comment

Title IX Administers a Booster Shot: The Effect of Private Donations on Title IX

Franklin, Charlotte | April 17, 2021

Title IX of the Education Amendments of 1972 (Title IX) prohibits discrimination on the basis of sex in federally funded education programs or activities. Since its enactment, Title IX has dramatically increased interscholastic and intercollegiate athletic opportunities for women and girls. Despite indisputable progress since Title IX’s enactment, particularly for female athletes, many high schools and universities still fail to offer equal athletic opportunities for members of both sexes. Inadequate educational resources for high school and university athletic department administrators leads to a misunderstanding of Title IX’s requirements. This misunderstanding results in institutional misconduct and non-compliance with Title IX. In particular, booster club funds and private donations often result in non-compliance by schools, and administrators who do not understand the scope of the law may not even recognize this non-compliance. Sport-specific booster club funds and privately funded earmarked donations pose a threat to Title IX compliance if administrators allocate these gifts without regard for equitable distribution. To redress disparities between men’s and women’s athletic programs, OCR should offer more robust educational resources and implement Title IX trainings so administrators can prevent misallocating booster club funds and private donations. OCR should train representatives from high school and collegiate athletic conferences to help spread awareness to administrators at their respective institutions. In addition to OCR-mandated trainings, administrators should collaborate with the leaders of their institutions’ booster clubs, alumni associations, and other prospective donors to ensure these individuals recognize the Title IX implications of their gifts. Greater understanding of Title IX is critical for everyone involved throughout the gift-giving process—from the initial donation to the departmental allocation of the funds. Ultimately, if OCR implements more substantive educational resources about Title IX, compliance with the law would improve. This compliance would help ensure equal opportunities are afforded to every student, regardless of sex.


Holtzman, Kurt A. | April 17, 2021

Supreme Court Justice Neil Gorsuch recently noted that “juries in our constitutional order exercise supervisory authority over the judicial function by limiting the judge’s power to punish.” Yet in the majority of jurisdictions, contemporary judge-only sentencing practices neuter juries of their supervisory authority by divorcing punishment from guilt decisions. Moreover, without a chance to voice public disapproval at sentencing, juries are muted in their ability to express tailored, moral condemnation for distinct criminal acts. Although the modern aversion to jury sentencing is neither historically nor empirically justified, jury sentencing opponents are rightly cautious of abdicating sentencing power to laypeople. Nevertheless, jury endorsement of criminal sentencing is critical to the legitimacy of criminal law. It is also necessary if criminal law is to remain responsive to evolving social mores. Unfortunately, today, studies suggest that actual criminal sentences are largely detached, if not divergent, from community preference. The criminal advisory jury is a mechanism to solve these issues by allowing juries to express community sentiment on punishment while preserving the values inherent in autonomous judicial sentencing. The jury is one of the most democratic institutions within the United States and sits readily assembled for most criminal trials. Failing to solicit its views of just desert for the criminal it has convicted is an opportunity wasted; an opportunity the criminal advisory jury construct will seize.

Abandoning the Subjective and Objective Components of a Well-Founded Fear of Persecution

Kim, Grace | April 17, 2021

Current asylum law requires that asylum seekers prove that they have a “well-founded fear of persecution.” However, a “well-founded fear”—the evidentiary standard in asylum cases—has remained ambiguous and difficult to apply in asylum cases. In Cardoza-Fonseca, the Supreme Court held that an asylum seeker can establish a well-founded fear with less than a 50% probability of future persecution. Although the Supreme Court sought to clarify the meaning of a well-founded fear, the decision has complicated the evidentiary standard by implying that it consists of two parts: the subjective component and objective component. The “subjective” component—the asylum seekers’ subjective fear of being persecuted if they return to their home countries—is superfluous because this component is rarely contested. The subjective component is essentially a non-issue because asylum seekers can prove this component by stating that they are afraid to go back to their home countries. The objective component—whether asylum seekers’ fears are objectively reasonable—remains unclear. Moreover, courts have misapplied the well-founded fear standard and interpreted the objective component in inconsistent ways. Thus, this Note argues that the Supreme Court should eliminate the subjective component in the well-founded fear analysis and assume that asylum seekers have a genuine fear if they submit an application. In addition, the Supreme Court should simplify the objectively reasonable fear analysis to “a reasonable possibility of persecution,” which would be a 10% chance of persecution. A reasonable possibility of persecution would emphasize how a well-founded fear points to a threshold or probability of persecution rather than a separate, convoluted analysis.

Third-Party Standing and Abortion Providers: The Hidden Dangers of June Medical Services

Nassirinia, Elika | April 17, 2021

Standing is a long held, judicially-created doctrine intended to establish the proper role of courts by identifying who may bring a case in federal court. While standing usually requires that a party asserts his or her own rights, the Supreme Court has created certain exceptions that allow litigants to bring suit on behalf of third parties when they suffer a concrete injury, they have a “close relation” to the third party, and there are obstacles to the third party’s ability to protect his or her own interests. June Medical Services, heard by the Supreme Court on June 29, 2020, involves the Unsafe Abortion Protection Act, a Targeted Regulation of Abortion Providers (TRAP) law which requires abortion providers in Louisiana to have admitting privileges at a hospital within thirty miles of where the providers perform abortions. This law decreased the number of abortion clinics in Louisiana from six to three. In addition to the admitting privileges issue in the case, Louisiana challenged the entitlement of the plaintiff-providers to third-party standing in bringing suit, arguing that abortion providers do not meet the requirements of third-party standing. Louisiana’s arguments pose a grave danger to reproductive rights across the country, as the abolishment of third-party standing for abortion providers would severely restrict the number of cases brought forth challenging abortion restrictions. Louisiana’s arguments ignore a long line of precedent that recognizes third-party standing of abortion providers challenging health and safety regulations, as well as the well-documented dangers of TRAP laws to women’s health. In addition, Louisiana’s rationale rests on inaccurate assumptions about the dynamic between abortion providers and their patients, and disregards the very real and dangerous hindrance in the path of women seeking to file lawsuits on their own behalf in cases involving abortion restrictions.