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Volume 66, Issue 6
Conspicuous Philanthropy: Reconciling Contract and Tax Laws

By William A. Drennan | 66 Am. U. L. Rev. 1323 (2017) 

It sold for $15 million, and the IRS treated it as worthless.  Avery Fisher, a titan of industry and a lover of classical music, made a generous contribution to renovate a charity’s building, and in exchange the charity agreed to name the building after Fisher in perpetuity.  Forty years later, the Fisher family sold the naming rights back to the charity for $15 million in cash.  The IRS treats these publicity rights as worthless when charities grant them, and this generates substantial tax benefits for the donor and the donor’s family.  In contrast, the common law can treat these publicity rights as valuable consideration supporting an enforceable contract, and a charity may be liable for damages if it renames a building.  Why the contradiction?  What are the consequences?  Should we reconcile these positions?  How?  This Article asserts that the common law contract approach is well-suited for today’s mega-million dollar charitable building naming rights deals, but the tax approach is outdated and inconsistent with U.S. Supreme Court precedents.

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Birthright Citizenship Under Attack: How Dominican Nationality Laws May Be the Future of U.S. Exclusion

By Ediberto Román and Ernesto Sagás66 Am. U. L. Rev. 1383 (2017)

Attacks on birthright citizenship periodically emerge in the United States, particularly during presidential election cycles.  Indeed, blaming immigrants for the country’s woes is a common strategy for conservative politicians, and the campaign leading up to the 2016 presidential election was not an exception.  Several of the Republican presidential candidates raised the issue, with President Donald Trump making it the hallmark of his immigration reform platform.  Trump promised that, if elected, his administration would “end birthright citizenship.”

In the Dominican Republic, ending birthright citizenship and curbing immigration are now enshrined into law, resulting from a significant constitutional redefinition of Dominican citizenship and a major court decision.  Essentially, the Dominican Republic both modified its constitutional equivalent of the Fourteenth Amendment to the U.S. Constitution and also ruled that change applied retroactively, leaving four generations of former citizens stateless.

Both the U.S. and the Dominican cases are driven by the same factors:  fear and distrust of foreigners, historical xenophobia, selective interpretation of citizenship, and plain racial discrimination.

In this Article, the authors examine the historical context of the Dominican Republic and the United States, including legal precedents and constitutional modifications and the actual and potential legal ramifications and social consequences of these changes. They conclude that in both cases, these changes are for the wrong socio-political reasons, are based on flawed legal arguments, and are harmful to constitutional and human rights. The authors call for inclusive, welcoming legal regimes that enhance—rather than undermine—citizenship rights.

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RESPONSE: The Fiscal Illusion Zombie: The Undead Theory of Government Regulatory Incentives

By Christopher Serkin66 Am. U. L. Rev. 1433 (2017) 

This is a Response to Bethany R. Berger’s recent Article, The Illusion of Fiscal Illusion in Regulatory Takings.  In that Article, Professor Berger argues against the view that governments should be forced to compensate for regulatory burdens because they suffer from fiscal illusion and will only internalize the costs that they, in fact, have to pay.  She demonstrates that property taxes already provide a mechanism through which governments internalize both the costs and benefits of their property regulations, and that compensation for regulatory takings is therefore unnecessary and even perverse for creating efficient regulatory incentives.  This Response argues that she is correct and that her criticism joins many others before it.  However, despite these significant criticisms, fiscal illusion continues to inform takings theory.  This Response ultimately demonstrates that even if Professor Berger is correct, her proposed responses do not entirely address the problem that compensation will over-deter government regulations, and so this Response proposes both municipal insurance and liability for regulatory inaction as potential interventions.

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COMMENT: Why Anti-Surcharge Laws Do Not Violate a Merchant’s Freedom of Speech

By Annie P. Anderson66 Am. U. L. Rev. 1459 (2017)

First Amendment litigation is surrounding state anti-surcharge laws, which prevent merchants from imposing surcharges on transactions where customers use credit cards.  These laws effectively prevent stores from passing credit card “swipe fees” onto their customers.  Merchants argue that because the laws still allow them to provide discounts to customers who use other forms of payment, the laws violate their First Amendment rights by impermissibly restricting the way the stores can communicate.  The state governments, in contrast, have defended the laws by asserting that they regulate conduct, not business speech, and therefore do not violate the First Amendment.

The Supreme Court in Expressions Hair Design v. Schneiderman answered part of the inquiry when it held that New York’s anti-surcharge law violated speech, not conduct.  Now, the case will return to the Second Circuit, which will determine whether it survives constitutional scrutiny.  This Comment argues that anti-surcharge laws do not violate the First Amendment because they regulate speech that relates to commercial transactions and are thus categorized as commercial speech.  Further, this Comment argues that state anti-surcharge laws survive the intermediate scrutiny applied to commercial speech as established by Central Hudson Gas & Electric Corp. v. Public Service Commission of New York.

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COMMENT: Waste in Space: Remediating Space Debris Through the Doctrine of Abandonment and the Law of Capture

By Emily M. Nevala | 66 Am. U. L. Rev. 1495 (2017)

With the growing commercialization of outer space, the threat of damage to satellites from detritus hurtling through space could prevent the continued installation of satellites.  The cure for this issue cannot simply come from mitigation efforts; governments and organizations involved in spacefaring activities must participate in active remediation measures.  International space agency guidelines and U.S. statutes and regulations are productive preventative measures against further accumulation of debris.  In addition, a number of organizations are working on new technology to actively reduce orbital debris.  These active processes for culling debris from orbit are essential for the reduction of debris buildup.

One possible barrier to the organizations looking to clean up outer space is property ownership rights.  Enforcement of ownership rights rests with domestic law, which would accordingly need to be applied extraterritorially to satellites in space to uphold ownership interests.  Though the U.S. Supreme Court has set forth a presumption against extraterritorial application of domestic laws, U.S. domestic laws apply in the narrow instance of suits arising when actions in international areas do not invoke international law or create a conflict of laws problem.  With this the case, remediators should look to the doctrine of abandonment as a way to easily facilitate the capture of debris and defunct satellites.  Under this doctrine, an owner has abandoned the property if he unilaterally relinquished “all title, possession, or claim to or of [the property].”

Applying the abandonment doctrine to post-mission satellites can help determine the legal ramifications of trying to clean up post-mission satellites and how those actions might impact ownership rights.  Owners generally take one of two actions as regards post-mission satellites:  (1) leaving the satellite in its mission orbit or (2) moving the satellite from its mission orbit to its disposal orbit.  When owners fail to move post-mission satellites into a disposal orbit, the satellites qualify as abandoned property and can therefore be captured.  A more nuanced, case-by-case analysis must apply when owners take the prescribed steps to move post-mission satellites to a disposal orbit.  While post-mission satellites can be analyzed through the doctrine of abandonment, orbital debris does not easily fit into the analysis and cannot be reduced through the avenue of abandonment and capture.

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COMMENT: It’s Time to Stop Punting on College Athletes’ Rights: Implications of Columbia University on the Collective Bargaining Rights of College Athletes

By Lucas Novaes | 66 Am. U. L. Rev. 1533 (2017) 

The National Labor Relations Board ruled in Columbia University that student assistants who have a common law employment relationship with their university are statutory employees under the National Labor Relations Act, which granted them full bargaining rights and union protection.  However, just one year earlier, the Board decided to not address the question of whether college athletes receiving grant-in-aid scholarships should similarly be accorded the protections of the Act as statutory employees.  Importantly, the Board noted that it was well-suited to make that determination in the future.

College athletes have been left in legal limbo as the teams, universities, and athletic conferences they work for have continued to profit exuberantly while denying them any substantial rights.  The increased commercialization of collegiate sports has paralleled the prohibitive control that athletic conferences and universities exert over the athletic, social, and academic lives of college athletes.  Thus, the Act—designed to prevent exploitation of labor—is the legal remedy available to college athletes seeking to reclaim their dignity and achieve equity in bargaining power.

This Comment argues that the Board’s decision in Columbia compels a finding that grant-in-aid athletes, or college athletes, participating in revenue-generating sports at Division I private universities and colleges are employees under the Act.  Specifically, Columbia’s statutory and common law test, as well as the jurisdictional discretion standard, all require a finding that it is legally unsound to continue to deny—under the veil of “amateurism”—college athletes the protections available to them under federal labor law while conceding that student assistants are deserving of those same protections.

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