Volume 69, Issue 5


Volume 69, Summer 2017, Issue 5


Churches’ Lobbying and Campaigning: A Proposed Statutory Safe Harbor for Internal Church Communications

Edward A. Zelinsky

President Trump, reiterating the position he took during his 2016 presidential campaign,’ has recently reaffirmed his pledge to “get rid of and totally destroy the Johnson Amendment,” a provision of the Internal Revenue Code that prohibits tax-exempt institutions from participating in political campaigns. The Code also bars tax-exempt institutions, including churches, from substantial lobbying activities.

Sanctuary Cities, Government Records, and the Anti-Commandeering Doctrine

Bernard W. Bell

The Trump Administration’s policy of defunding “sanctuary cities” hinges on the validity of federal statutes, such as 8 U.S.C. § 1373, that invalidate state and local policies prohibiting public employees from sharing information in government files with federal authorities. This article argues that constitutional and quasi-constitutional doctrines regarding government records constrain federal information demands upon state and local governments. The doctrines assume heightened importance with respect to personal information obtained under grant of confidentiality, given the important state and local purposes confidentiality serves. Moreover, Congress’ approach in 8 U.S.C. § 1373 and similar statutes is especially pernicious because it deprives elected officials of control over their subordinates, undermining their electoral accountability and challenging the underlying premises of the administrative state.

When Businesses Refuse to Serve for Religious Reasons: Drawing Lines Between Participation and Endorsement In Claims of Moral Complicity

Angela C. Carmella

The owners of small businesses and others involved in forprofit work occasionally refuse to provide a service to a patient, client, or customer on the grounds that to provide the service would render them complicit in immoral conduct in violation of their religious beliefs. Some of these conscientious refusals might be protected by legislation, regulation, or court decision, as in the case of a doctor refusing to perform an abortion, or an employer refusing to provide employees with contraception coverage. The new question raised-and soon to be answered by the U.S. Supreme Court-is whether wedding vendors (bakers, florists, and the like) who refuse to provide goods and services to samesex couples will be similarly protected or whether they will be required to abide by the non-discrimination norms of public accommodations law. For those weary of religious claims in the culture wars, the very notion that the Court might extend legal protections to wedding vendors in such situations tends to cast doubt more generally on religion-based refusals in the for-profit context. The purpose of this article is to draw a bright line between ‘the traditional category of complicity claims and this newer category of wedding vendor claims. Traditional claims typically involve health care personnel and others refusing to participate in activities they consider to be immoral-most often those that entail ethical issues surrounding the beginnings and endings of life, such as assisted reproduction and assisted suicide. In contrast, this newer set of claims involve wedding vendors refusing to endorse activities they consider to be immoral, like the marriage of a same-sex couple. Herein lies the critical distinction: participation in immoral activity is not the same thing as endorsement or approbation of someone else’s immoral activity. The wedding vendors concede the distinction, as they expressly claim the right not to endorse a message with which they disagree, but they seek to extend the protections of traditional complicity jurisprudence to their claims. The article contends that the traditional complicity jurisprudence, which allows businesses to refuse to participate in activity they consider immoral, has little, if anything, to say about refusals to approve the conduct of others. The Court should not extend this jurisprudence to the wedding vendor context.

Sanctions and Efficacy in Analytic Jurisprudence

Brenner M. Fissell

Legal theory has long grappled with the question of what features a rule system must have for it to be considered ‘7aw.” Over time, a consensus has emerged that might seem counterintuitive to most people: a legal system does not require punishment for the disobedience of its rules (sanctions”), nor must it be obeyed by the people it purports to apply to (it need not have “efficacy’). In this Article, I do not challenge these conclusions, but instead stake out an attempt to reconcile these claims with other intuitions about law. I argue that while neither sanctions nor efficacy are alone determinative of legal validity, legal systems must at least aspire to be efficacious. Sanctions, then, may be seen as but one optional manifestation of the crucial background quality they represent: a readiness to adapt and react to the external realities surrounding a legal system’s attempted implementation.


Tapping the Netflix Binge: Cities Binging on Taxing Streaming Services Violate Federal Law

Genna Autumn Conti

On October 21, 1998, President Bill Clinton signed the Internet Tax Freedom Act (“ITFA”), part of the Omnibus Consolidated and 1654 Emergency Supplemental Appropriations Act. Originally, Congress discussed several bills. These bills shared a common purpose: to “regulate state and local taxation of the Internet.” Although the bills all had the same intention, they differed in the following respects: (1) when the moratorium would expire; (2) which portions of the Internet could and could not be taxed; (3) which taxes would be permissible and which taxes would be prohibited; (4) whether taxes on the Internet already in effect would be grandfathered into the bill; (5) “the focus of the consultative group or commission;” (6) who would serve as members of the committee; and (7) “what policy actions [would be] expected at the end of the moratorium.” Eventually, Congress chose to enact ITFA.

Enough is Enough: Examining Due Process in Campus Sexual Assault Disciplinary Proceedings Under New York Education Law Article 129-B

Laura Garcia

On July 7, 2015, New York codified disciplinary procedures for sexual assault allegations on all college campuses in an amendment to the New York education law. This “Enough is Enough” law, Article 129-B, became effective on October 5, 2015 (hereinafter “Article 129- B”). Article 129-B of the New York Education code details several procedural protections that must be afforded to both alleged perpetrators and their alleged victims.  It began as a bill proposed by New York Governor Andrew Cuomo in January 2015. Prior to this proposal however, Cuomo had already begun pushing New York undergraduate schools to reform their sexual assault policies.  In particular, Cuomo pushed for schools that had not yet adopted an affirmative consent policy to do so. According to the Governor’s website, House Democratic Leader Nancy Pelosi stated that sexual assault on campus is an “all-hands-on-deck epidemic in America.” Article 129-B has the following aims: to treat sexual violence as

Worker Classification and the Gig-Economy

Andrew G. Malik

The labor market is changing. As a result of these changes, a new breed of companies has emerged. The “gig-economy”‘ is one of several terms used to describe the advent of companies that do not offer any direct services of their own, but instead act as intermediaries between workers and customers. “Contingent workforce” firms-such as Uber,  Airbnb, and Taskrabbit -offer individuals the opportunity to build their own small businesses on their own terms. Individuals who drive through Uber, host guests through Airbnb, or clean and complete errands through Taskrabbit all have the ability to connect easily with customers, set their own hours, and even work for several competitors simultaneously.