Current Issue – 22.2


Tessa R. Davis

The Tax Code contains not one, but two conceptions of family. Existing scholarship does not address this puzzle but instead takes one of two views on the family—either the family is a tool for avoiding taxes or it is a source of discrimination. Current scholars, motivated by the discrimination concern, reject the relevance of kinship to tax and argue for an increased focus on the individual. This Article takes a different approach. Utilizing the “status” and “contract” distinctions familiar to family law scholars, it explains the puzzle of the multiple families in the Code, identifying the two families of the Code and their respective functions. Specifically, this Article shows that when we convey benefits through the Code, we understand family as broad and contract based. On the other hand, when our goal is to root out or head off tax gaming and avoidance, we constrict our notion to that of the nuclear, status-based family. Current reform proposals undervalue the importance of family to the prevention of avoidance and evasion, make targeting beneficial provisions more difficult, and inhibit the challenging work of reforming the Code to be both administratively feasible and nondiscriminatory. Contrary to existing scholarship, this Article argues we should neither cut kinship from the Code nor rely exclusively upon the contract family. Instead, this Article creates a framework for modernizing the tax treatment of the family that combines the strengths of kinship theory and the status and contract families to maintain fairness and administrability and utilizes that framework to make preliminary reforms to existing law.

Steven McNamara

Insider trading law has expanded in recent years to cover instances of trading on nonpublic information that fall outside of the fiduciary duty framework set forth by the U.S. Supreme Court in the landmark cases of Chiarella and Dirks. The trend towards a broader insider trading law moves the law closer towards what evolutionary psychology insists humans desire when engaging in collective action: that individuals benefit in proportion to the effort or investment they make in a common enterprise. Insider trading law can therefore be understood as a societal response to cheating in group activities, and the recent expansion of the law can be regarded as reflecting a proclivity for fairness as proportionality. An evolutionary psychology–based account of insider trading law also provides a basis for understanding the observed correlation between insider trading enforcement and various measures of the health of the financial markets, as well as a unified jurisprudence of insider trading law encompassing both consequentialist and deontological aspects.

Daniel R. Correa

Legal philosophers have long labored to articulate a single standard by which practitioners and, to a lesser degree, members and passersby in any political society can identify the demands law makes of them. The challenge has always been to reconcile competing moral concerns between legal philosophers who hold that morality informs the inquiry and those who hold that social facts inform the inquiry without regard to whether one considers the law’s content good or evil. These debates, in large part, remain internal to legal practice, rarely inviting and hardly accessible to the general public.

Jeremy Waldron approaches the age-old inquiry by narrowing its focus. Rather than ask how law presents itself generally, Waldron asks how law presents itself in a democratic political system. Representatively enacted legislation epitomizes law in a democratic system for Waldron. To accept Waldron’s exposition of what law is like in a truly democratic system is to adopt a new approach to jurisprudence. The challenge is to take the promise that democracy makes seriously, that anything that aspires to the status of law permeate with an ethos of equality of participation. Although Waldron does not explicitly offer a vision for the judiciary in his democratic jurisprudence, this Article argues that his works implicitly offer such a vision. The jurisprudential inquiry no longer turns to what a traditional judge or judges do in courts; rather, a jurisprudential challenge is issued to increase the opportunities for and capacity of citizens to actively participate on an equal basis in choosing the laws that govern them. Jurisprudes are led, that is, toward a jury-centered jurisprudence.


Nicholas Reaves

In October 2013, the American Atheists and the Freedom From Religion Foundation both threatened to sue Montgomery, Alabama over a controversial new initiative: Operation Good Shepherd. This initiative was designed by the city to leverage the resources of local clergy to help prevent crime and comfort victims and their families at crime scenes. While Operation Good Shepherd has received significant media attention following the publication of a September 2013 article in The Atlantic magazine questioning its constitutionality, it is not unique. Dozens of police departments in the past few decades have been teaming up with local clergy to create so-called “police and clergy alliances.”

This Note will analyze the constitutionality of Operation Good Shepherd and similar police and clergy alliances by applying several of the Supreme Court’s Establishment Clause tests to different aspects of the program. This Note will then argue that police and clergy alliances do not violate the Establishment Clause so long as volunteers respect the programs’ secular purposes and refrain from proselyting or talking about religious issues without the consent of program beneficiaries.