Law

-Submitted by David Drumm (Nal), Guest Blogger Bill Donohue, president of the Catholic League, writes: “Just weeks after Barack Obama was elected president in 2008, I was notified by the IRS that the Catholic League was under investigation for violating the IRS Code on political activities as it relates to 501(c)(3) organizations.” So, that would be when George W. Bush was the President. The recent media attention directed towards IRS investigations of Tea Party, 501(c)(4), organizations, was just too enticing for Donohue. For 501(c)(3) organizations, the IRS requires that the organization “may not participate in any campaign activity for or against political candidates.” It might be interesting to see how well the Catholic League upheld its commitment to this requirement. Unlike 501(c)(4) organizations, donations to 501(c)(3) organizations are generally tax-exempt. In return for this benefit, these organization agree to the IRS terms and conditions. The language in the IRS specifically designates “political candidates” as being off limits. However, the September 2008 issue of Catalyst, the journal of the Catholic League, in an article entitled “OBAMA’S PUBLIC POLICY BLUNDERS,” Donohue wrote: Recently, Sen. Obama has disappointed Catholics again. This time regarding his public policies on school vouchers, faith-based initiatives and selective infanticide. In the October 2008 issue, Donohue writes of then-candidate Nancy Pelosi: “Pelosi is wildly out of touch with the Catholic Church.” Donohue writes of vice-presidential candidate Joe Biden: “As the only Catholic on either ticket, Biden could have been a real asset to Obama, but instead he has become a liability.” Donohue defends Keith Fimian, the Republican candidate for Virginia’s 11th Congressional District. Donohue also defends Sarah Palin by noting: “Republican vice presidential nominee Sarah Palin’s religion has come under severe scrutiny. Unfortunately, some of the coverage has been downright unfair.” What was the result of the IRS investigation? Acdording to Donohue: In the end, the IRS concluded that although the Catholic League had “intervened in a political campaign,” it was “unintentional, isolated, non-egregious and non-recurring”; our tax-exempt status remained intact. Donohue responds: I intentionally addressed political issues, and did not intervene in the campaign … However, Donohue’s legal accumen seems to differ from that of the United States Conference of Catholic Bishops (USCCB) Office of General Counsel, who offers this advice: A Catholic organization may not directly or indirectly make any statement, in any medium, to endorse, support, or oppose any candidate for public office, political party, or PAC. [Treas. Reg. § 1.501(c)(3)-1(c)(3)(iii).] Nonprofit attorney Gene Takagi agrees with that interpretation. Takagi writes that 501(c)(3) organizations “cannot make endorsements (whether in support or in opposition to a candidate); and cannot allow the use of the organization’s resources without giving equal opportunity to other candidates.” If Donohue wants to issue his political opinions regarding candidates, he is free to give up his organization’s tax-exempt benefit. H/T: Steve M., David Weigel.

-Submitted by David Drumm (Nal), Guest Blogger Forget about the IRS, AP, and Benghazi. They all pale in significance to Umbrella-Gate. President Obama asked White House Marine guards to hold umbrellas for the President and the Turkish Prime Minister during an outdoor press conference. Male Marines are not allowed to use umbrellas while in uniform, except when they are “perform[ing] such other duties as the President may direct“. Female Marines are allowed to use umbrellas. Sarah Palin tweeted: “Mr. President, when it rains it pours, but most Americans hold their own umbrellas.”

From TalkLeft, discussing Simpson's claim of ineffective assistance. In part: O.J. Simpson's former attorney, Yale Galanter, threw O.J. under the bus today, testifying O.J. told him he knew others were bringing guns to the hotel room where O.J. planned to...

From the New York Times: West Valley City officials offered a few details from their investigation into the drug squad. They found that officers had mishandled evidence and had placed tracking devices on suspects’ cars without getting necessary warrants. Confidential...

Amy Schmitz (University of Colorado Law School) has posted Sex Matters: Considering Gender in Consumer Contracts (Cardozo Journal of Law & Gender, Vol. 19, pp. 437-509, 2013) on SSRN. Here is the abstract: We hear about the so-called “War on Women” and persisting salary gaps between men and women in the popular media, but contracts scholars and policymakers rarely discuss gender. Instead, dominant voices in the contracts field often reflect classical and economics-driven theories built on assumptions of gender neutral and economically rational actors. Furthermore, many mistakenly assume that market competition and antidiscrimination legislation address any improper biases in contracting. This Article therefore aims to shed light on gender’s importance by distilling data from my own e-survey of Colorado consumers along with others’ research regarding gender differences in contract outcomes, interests and behaviors. In light of this research, the Article calls for open discussion of gender in contract and consumer law. It also suggests ideas for considering research findings and the importance of context in designing financial literacy and contract education programs that acknowledge gender while honoring individuality and avoiding stereotype reinforcement.

The petition of the day is: Director of the Department of Revenue of Montana v. Department of the Treasury12-926Issue: (1) Whether the federal savings bond statute and regulations impliedly preempt longstanding state unclaimed property laws, where the statute and regulations are wholly silent on the treatment of unclaimed bonds and where Congress has expressly preempted state unclaimed property laws in numerous other contexts; and (2) whether application of state unclaimed property laws to unclaimed U.S. savings bonds owned by state residents violates the intergovernmental immunity doctrine, where these laws reflect the states’ exercise of constitutionally reserved escheat power. In association with Bloomberg Law

Kevin Bennardo (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted Incentivizing Lawfulness Through Post-Sentencing Appellate Waivers on SSRN. Here is the abstract: A sentencing appellate waiver is a promise by a criminal defendant not to...

Pavlos Eleftheriadis (University of Oxford - Faculty of Law) has posted Democracy in the Eurozone (WG Ringe and P Huber (eds), Legal Challenges Arising out of the Global Financial Crisis: Bail-outs, the Euro, and Regulation (Oxford: Hart Publishing) (2013, Forthcoming)) on SSRN. Here is the abstract: In December 2012 Four Presidents of the European Union (of the European Council, the Commission, the Central Bank and the Eurogroup) issued a paper outlining steps for a ‘genuine monetary union’ promising among others better democratic accountability for its institutions. This essay asks if an entity like the European Union - and the Eurozone within it - can indeed become democratic. I distinguish between two approaches to democracy, first as collective self-government or, second, as set of egalitarian institutions. The essay argues that the German Federal Constitutional Court supports the first theory and for that reason is very cautious of the idea of bringing democracy to the European Union. The collective view believes that without a single people, there cannot be self-government. The second theory accepts the primacy of domestic democracy but allows, by contrast, for international institutions of democratic accountability that support domestic democracy. I offer some arguments for this view and conclude that the four Presidents are not mistaken in endorsing the ambition of democratic accountability for the Eurozone. The European Union is a union of peoples. A union of this kind can become more democratic without seeking to become a democracy.

(Eugene Volokh) A very interesting question, raised in Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board, a certiorari petition now pending before the Court. Profs. John Duffy (Virginia), Peter Strauss (Columbia), and Michael Herz (Cardozo) — an illustrious trio who often take quite different views about other subjects — have an item about this at Concurring Opinions; here’s an excerpt (click on the Concurring Opinions post for links): Earlier this year, more than 100,000 citizens petitioned the White House to overturn a copyright rule issued by the Librarian of Congress that made unlocking a cell phone a crime. The White House responded by promising to seek legislation to overturn the Librarian’s rule. That was the most the President would or could do because “[t]he law gives the Librarian the authority,” and the Administration would “respect that process,” even though the Librarian acted contrary to the Administration’s views. See here. As the New York Times reported, “because the Library of Congress, and therefore the copyright office, are part of the legislative branch, the White House cannot simply overturn the current ruling.” See here. There’s only one problem with all of this: The Department of Justice has been vigorously arguing precisely the contrary constitutional position in the federal courts. According to the Administration’s filings in litigation that has now reached the Supreme Court, the Library of Congress is “an executive Department,” and the Librarian himself is “subject to plenary oversight by the President.” Justice Department lawyers have explained that Congress made a “purposeful decision to place the Library under the President’s direct control and supervision”; that the Librarian of Congress is the “Head” of this “executive Department”; that the President may remove the Librarian “at will” just as he may remove other heads of executive departments; and that this removal power creates the Librarian’s “here-and-now subservience” to the President. See pages 16 & 17 of the Government’s Brief in Opposition filed at the Supreme Court, available here and pages 23, 29 & 37 the Government’s Brief for Appellees filed in the Court of Appeals, available here. In light of that clear legal position, an obvious question arises: If the Librarian is really a head of an executive Department subject to “plenary oversight by the President,” why hasn’t the President either taken responsibility for criminalizing cell phone unlocking or ordered the Librarian to reverse his decision? The answer is that no one in the political arena actually believes for one minute that the Librarian is the head of an executive department. The current Librarian has repeatedly testified to Congress that the Library is “arm of the United States Congress,” “a “branch of the Legislative branch,” and “a unique part of the Legislative Branch of the government.” Members of Congress also understand this to be true. To take but one prominent example, Senator Orrin Hatch has noted not only that “the Copyright Office is in the legislative branch of the Government” but also that this arrangement presents difficulty because “whenever the Copyright Office is tasked with an executive-type function, [a] constitutional question arises.” The President’s supposed powers of “plenary oversight” and at-will removal are utter fiction, as the controversy about cell phone unlocking shows.... Why then are the Administration’s lawyers arguing that the Librarian is a presidential underling? The answer is easy. The Librarian has been vested with the power to appoint all of the officers who execute the copyright laws—including the Registrar of Copyrights and the judges of the Copyright Royalty Board—but the “Appointments Clause” of the Constitution makes clear that such power can be lodged in the Librarian only if he is the head of an Executive Department....

Posted by D. Daniel Sokol Ulrich Heimeshoff and Gordon J. Klein (both Heinrich-Heine-Universitat Dusseldorf) have a new paper on Bargaining power and local heroes. ABSTRACT: Bargaining Power of retailers is an important aspect of discourse in many industrialized countries, including...