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Volume 75, Issue 1

Complete Index of Volume 75, Issue 1, Fall 2014


Fear of an Undeterrable Other

Fredrick E. Vars

America is presently fighting a war on terror and a war on sex offenders. In each, the government openly detains hundreds of individuals not for what they have done, but for what they might do. Some warn that this greatest restriction on liberty may expand to other types of people. This Article examines the risk of such expansion by putting our current wars in historical perspective. The two main conclusions are: (1) some categories of people detained in prior periods are not being detained today; and (2) the risk of expansion is real but lower than previously suggested

The Strife of Riley: The Search-Incident
Consequences of Making an Easy Case Simple

Leslie A. Shoebotham

This Article amplifies Justice Alito’s admonition that evidence gathering must be recognized as a legitimate justification for police to search incident to arrest. This Article addresses the consequences of Riley’s digital-age reboot of the search-incident doctrine, especially Riley’s limitation of Gant to the vehicle context—a restriction that was, ironically enough, not necessary for imposing a warrant requirement on cell phone searches. Rather than relying solely on Chimel’s two “concerns,” this Article argues that the search-incident doctrine has been supported—both before and after Chimel—by three justifications: officer safety, preservation of evidence, and importantly, the need to discover evidence of the crime of arrest. Without evidence gathering as an implicit justification in a properly limited search incident to arrest, Riley’s limitation of Gant calls into doubt law enforcement’s authority to perform an incident search of an arrestee’s reaching distance—a Chimel search—to look for evidence of the arrestee’s crime once the arrestee has been handcuffed and is adequately secured. All things considered, Riley represents much more than a common-sense warrant requirement for cell phone searches. Rile is the deceptively simple beginning of the end of evidence gathering as a justification in a properly limited search incident to arrest.

Binding Future Selves

Kaiponanea T. Matsumura

My thesis is that theories of personal identity render the different selves rationale incorrect on both counts. In so arguing, I provide an extended analysis of the concept of personal identity in the contract law context. Although the subject of personal identity has generated a lively scholarly debate outside the legal academy, legal scholars have largely ignored its role in contract law. I use existing theories of personal identity to examine and resist the assumptions about self-discontinuity raised by the different selves rationale.

Contract Law and the Hand Formula

Daniel P. O'Gorman

Contract law is largely about negligence. Through the use of a “reason to know” or “reason to believe” standard in many of the black letter rules in the Restatement (Second) of Contracts, contract liability can often be traced to a party’s failure to exercise reasonable care. The Restatement, however, fails to adequately explain when a person has reason to know or reason to believe something. In other words, despite being largely about careless behavior, contract law fails to adequately explain the standard of care expected of parties. Importantly, though, the Restatement at least makes clear that a person might have reason to know or reason to believe something even when a reasonable person would believe the probability of the fact’s existence (or future existence) is less than 50%, as long as the probability is sufficiently substantial. The Restatement does not, however, provide much guidance on when the probability should be considered sufficiently substantial. This Article proposes that negligence law’s Hand formula be applied to make this determination.


Confronting Confrontation in a FaceTime
Generation: A Substantial Public Policy Standard to Determine the Constitutionality of Two-Way Live Video Testimony in Criminal Trials

J. Benjamin Aguiñaga

This Comment argues that the Supreme Court should adopt a substantial public policy standard to determine the constitutionality of two-way live video testimony. This proposal primarily emphasizes that two-way video requires witnesses to do something that one-way video, such as the system used in Craig, does not: it requires witnesses to see the defendant and testify to the defendant’s face. Because of two-way video’s better approximation of true physical confrontation, this proposal lowers the bar that prosecutors must meet to use two-way live video testimony by replacing Craig’s important public policy test with a substantial public policy standard. This standard would allow prosecutors to use two-way live video testimony in cases where the use of such testimony would advance public policies that, although not as important as protecting child abuse victims, are substantial enough to further the administration of justice. The substantial public policy standard would be doctrinally sound, grounded in reasoning that follows a fortiori from Craig. Moreover, the standard would be workable in practice, utilizing as guideposts lower courts’ decisions to provide a framework for determining the circumstances in which two-way live video testimony is constitutional under the Confrontation Clause. In an era where astounding technological advances are commonplace, two-way live video will only become faster, better, and easier. The proposed substantial public policy standard embraces this reality and embodies a pragmatic solution—a solution for confrontation in a FaceTime generation.

Promoting “Inclusive Communities”: A Modified Approach to Disparate Impact Under the Fair Housing Act

Cornelius J. Murray IV

This Comment proposes a congressional response to the outcome in Inclusive Communities (whether by way of settlement or Supreme Court opinion) that will statutorily guarantee disparate impact claims within the Fair Housing Act, while also providing a statutorily-mandated “modified burden-shifting” standard for the clear, uniform, and effective adjudication of such claims. The FHA must continue to provide plaintiffs with the ability to raise disparate impact claims to effectively combat housing discrimination and facilitate an integrated society. Further, FHA disparate impact claims require a new, uniform standard for courts to apply with a structure reflecting the Act’s purpose so that instances of discrimination decline and the majority of those that do occur do not continue to go unchallenged.

High-Stakes Word Search: Ensuring Fair and Effective IRS Centralization in Tax Exemption

Heath C. DeJean

This Comment examines the methods employed by the IRS in selecting tax-exemption applications for centralized review. The IRS’s resources are limited, and in the pursuit of efficiency and consistency, the IRS sometimes filters out applications that present a need for greater scrutiny. However, the selection of specific applications for heightened scrutiny review brings with it the risk that the public will take issue with the selection methods used. This risk becomes even greater when the IRS examines social welfare organizations for impermissible levels of political campaign intervention. Any suggestion that the IRS is acting with political bias not only goes against its mission, but also threatens the public’s trust. If it is proper for the IRS to target for centralized review similar organizations’ tax exemption applications, it must do so in a way that minimizes the risk that the public will view it as acting with partisan motives. These risks can be reduced if the IRS adopts an open-door determinations process, allowing organizations to self-certify that they qualify for exemption, and moves its centralization practices exclusively to the audit process.

Same-Sex Marriages Are Not Created Equal: United States v. Windsor and Its Legal Aftermath in Louisiana

Mallory Chatelain

In order to resolve the post-Windsor conflicts between federal agency policy and relevant state law in the areas of tax, Social Security, and military benefits, Louisiana must choose to either recognize same-sex marriage or make several changes to its current laws. Because Louisiana is unlikely to recognize same-sex marriage in the near future due to its strong public policy to the contrary, changes in state law are necessary to remedy the problems currently plaguing Louisiana’s same-sex couples. First, Louisiana should repeal its law requiring Louisiana taxpayers to use the same filing status on both their state and federal tax returns. Second, the state should reform its current retirement system to allow married same-sex couples living in Louisiana to receive married benefits by permitting its employees to participate in the federal Social Security program in lieu of the state’s own retirement plan. Finally, Louisiana should eliminate its National Guard’s employment status requirement that prevents most of its employees from processing the claims of same-sex couples for married military benefits.