Vol 40. No. 1 Fall 2015 | School of Law | SIU

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Vol 40. No. 1 Fall 2015

ARTICLES

Expanded Stepparent and Grandparent Third Party Childcare in Illinois

Jeffrey A. Parness ......................................................................... 1

Recognizing the need for reforms involving, inter alia, parental and third-party childcare interests, the Illinois General Assembly created a study committee, resulting in several proposed amendments to the Illinois Parentage Act and to the Illinois Marriage and Dissolution of Marriage Act.  After several years of debate and amendment, parentage and marriage dissolution law reforms were enacted in 2015.  Unfortunately, the recent changes, and the earlier proposals arising from the study, insufficiently address the inadequacies of the current regimes on third-party childcare, especially childcare opportunities for stepparents and grandparents.  This is especially problematic since there are few, if any, opportunities for Illinois stepparents and grandparents to become parents in the absence of formal adoption.  General Assembly action is warranted.  Suggested approaches follow.

Changing Residency for Illinois Tax Purposes

Ronald Z. Domsky....................................................................... 11

The State of Illinois assesses a tax on every individual who has the “privilege of earning or receiving income in or as a resident of this State.”  Three categories of people are subject to the taxing statute: those who are live in another state but receive income from specified sources in Illinois, those who become or cease to be a resident during a taxable year, and those who are considered residents of Illinois.  The term resident includes people who are in the state during a taxable year for a purpose that is not temporary or transitory and those who are domiciled in Illinois but absent from the state for a temporary or transitory purpose during a taxable year.  It is difficult to prove a change in domicile because it is a subjective intent analysis that is guided by objective indicators.

Illinois has a two-part statutory test for changing domicile, which requires taxpayers to show that they relocated with the intent to establish a new domicile and that they abandoned any intention to return to their Illinois domicile.  Illinois courts have created a four-part test that includes abandonment of the old domicile and intent not to return, along with physical presence in a new domicile and the intent to make it a new domicile.  In Cain v. Hamer, the First District Appellate Court of Illinois had to determine whether two taxpayers had changed domicile for Illinois tax purposes.  After finding that the physical abandonment and intent not to return factors were moot, the court decided the case solely on the basis of physical presence in the new domicile and intent to make it the new domicile. This article examines the possible effects the decision in Cain v. Hamer may have on determining residence for Illinois tax purposes. 

  

NSA Metadata Collection & Storage: An Internment Camp for Citizens’ “Effects”

David J. Robinson and Julia Kaye Wykoff............................................29

The Fourth Amendment to the United States Constitution provides the people the right to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” which means the people have the right to freedom from warrantless government intrusion, or trespass, into their persons, houses, papers, and effects.  Most people are familiar with persons, houses and papers, but the term “effects” is unfamiliar to many.  The United States Supreme Court recently explained that personal property, such as one’s vehicle, constitutes an effect under the Fourth Amendment.  The government of the United States has not always lived up to its obligations under the Fourth Amendment.  For example, the internment of Americans citizens of Japanese ancestry during World War II under President Roosevelt’s Executive Order 9066 stands as an example of the government and courts failing to protect citizens’ constitutional rights.

The National Security Administration (NSA) has received criticism for collecting call detail records, or metadata, about phone calls made by American citizens in an attempt to target and eradicate terrorism, both at home and abroad.  Thus far, courts have not explicitly examined whether citizens’ metadata is an effect within the meaning of the Fourth Amendment.  This article examines whether the metadata collected and stored by the NSA is an effect within the meaning of the Fourth Amendment.  The authors conclude that it is, and that bulk collection of metadata conducted either without consent, exigent circumstances, and probable cause, or without a warrant, is a trespass that implicates the Fourth Amendment.

 

 

COMMENTS

 

Donate Your Art and Keep it Too: How the Government Subsidizes Art Collections for the Rich and What Congress Can Do About It

Steven Rodgers.............................................................................45

Wealthy art collectors have long sought tax breaks for “donations” of their art without having to turn over possession of the artwork.  Congress has previously recognized these efforts and taken measures to remedy the apparent unfairness of allowing collectors to obtain a tax deduction while never giving up their art.  More recently, collectors are opening up private museums in the form of tax-exempt organizations.  Private museums allow an art collector to donate art to an entity that the collector both created and controls.  This practice has recently been called into question because it allows for major tax deductions while often offering the public minimal gain, which is contrary to the rationale behind tax deductions.

This Comment will explain potential remedies to bring the public benefit into alignment with the loss of tax revenue.  Of course, to do so, the tax code must become more complex as Congress closes off current avenues that lead to outcomes that produce mismatches between tax deductions and public benefit. Thus, this Comment provides remedies that balance the goal of fairness with the need for clarity.

 

Only [___] Can Judge: Analyzing Which Courts Have Jurisdiction over ISIS

Andrew Solis................................................................................69

While many world leaders are developing plans to defeat ISIS, some thought should be given to what structures will be in place to manage the aftermath. Defeating ISIS will likely require international cooperation and there will be a need for a judicial structure to try ISIS war criminals that is acceptable to the international community.  In preparing for future judicial structures, leaders should consider cost, efficiency, legitimacy, and scope of the desired judicial structure.  Past and present international courts provide important case studies for which type of court system would best try ISIS war criminals.  Some courts, like the ICC have secure international support but very limited practical application. On the other hand, national courts and military tribunals can operate efficiently but require physical control to establish legitimacy and are subject to domestic political control.  This Comment argues the best option would be an ad hoc international court that operates with strong international support but allows for efficient and neutral prosecution of crimes.

 

 

CASENOTES

Will the Real Foreign Official Please Stand Up:  Determining Who is a Foreign Official after United States v. Esquenazi, 752 F.3d 912 (11th Cir. 2014)

Nicholas C. Martin....................................................................... 91

The Foreign Corrupt Practices Act (FCPA), following extensive investigations by Congress into United States corporations and its passage in 1977, prohibits corporation or individual from giving “anything of value” to a “foreign official” for the purposes of “obtaining or retaining business.” “Foreign official” is defined as “any officer or employee of a foreign government or any department, agency, or instrumentality thereof”; however, “instrumentality” is not defined within the FCPA, and is the primary concern of this Note.

In United States v. Esquenazi, the Court of Appeal for the Eleventh Circuit, in a case of first impression, determined that an instrumentality under the FCPA is “an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own,” thus, extending “foreign official” to include any employee of a state owned enterprise.  This Note explains the Eleventh Circuit was incorrect in its ruling, for a variety of reasons.

This Note argues the court was incorrect in its statutory interpretation—by applying incorrect canons of construction, invalid definitions, and inappropriate subsequent, silent legislative history.  This Note further argues the court’s ruling contravenes the intent and original purpose of the FCPA, as Congress was clear in its intention for FCPA to be a limited statute.  Finally, this Note argues the court’s ruling is unworkable in the real world—because it requires U.S. corporations to conduct extensive research and investigations before ever setting foot in a foreign country.

  

When Prohibition is not Regulation: Analyzing the Court’s Decision in Wallach v. Town of Dryden, 16 N.E.3d 1188 (N.Y. 2014)

Adam J. Loos ......................................................................... 121

The increased use of hydraulic fracturing has led to concerns about possible environmental harm.  Hydraulic fracturing, or fracking, is a resource extraction technique that aims to improve well productivity by pumping fracturing fluids containing a mixture of water, other chemicals, and sand, into an oil or gas well under high pressure.  Public opposition to hydraulic fracturing has led to bans and proposed bans on the practice in many American cities and towns.  The Town of Dryden, New York, enacted an amendment to its zoning ordinance prohibiting all oil and gas exploration and production within its boundaries.  New York state law regulates the oil, gas, and solution mining industry, and the state statute contains a supersession clause that preempts local regulation of these industries.  In Wallach v. Town of Dryden, the New York Court of Appeals held the zoning ordinance was a valid regulation of land use, rather than a regulation of the oil and gas industry, and that state law did not preempt the zoning ordinance.

This Note examines Wallach v. Town of Dryden in light of the risks and benefits of hydraulic fracturing and prior New York statutes and case law.  It explains the hydraulic fracturing process and its history, and explains the approaches Colorado and Pennsylvania have taken to supersession.  It also explains the New York statutes and case law relating to municipal authority to regulate land use, and the New York statute regulating the oil and gas industries.  Finally, this Note argues the court correctly interpreted precedent in a way that maintains municipal authority to regulate land use while preserving the legislature’s authority to regulate industry, resulting in an appropriate balance of state and local authority that serves public policy.  This Note concludes by urging Illinois courts to follow the example set in Wallach v. Town of Dryden when deciding cases challenging local ordinances prohibiting hydraulic fracturing.

To the Dictionary and Beyond! The Personification of Corporations in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014)

Alex Riley ............................................................................. 153

In March of 2010, President Obama signed the Patient Protection and Affordable Care Act, which provides that group health plans must provide coverage for certain forms of preventative care and screenings for women.  Regulations promulgated pursuant to this provision, commonly known as the contraceptive mandate, required coverage for all FDA-approved contraceptive methods without cost sharing.  Two closely held corporations sued the U.S. Department of Health and Human Services under the Religious Freedom Restoration Act (RFRA).  The suit was based on the owners’ opposition to abortion, which was rooted in their sincerely held religious beliefs.  The plaintiffs sought to enjoin enforcement of the contraceptive mandate to the extent it required them to facilitate access to the four contraceptive methods they found objectionable.  In Burwell v. Hobby Lobby Stores, Inc., the United States Supreme Court held that corporations are persons within the meaning of RFRA and the contraceptive mandate burdened the corporations’ exercise of religion.

This Note argues the Court correctly decided Hobby Lobby in holding that corporations are persons under RFRA.  It reviews the legal background of the contraceptive mandate, RFRA, and the Dictionary Act, as well as cases where courts have held that corporations are persons within the meaning of a statute, and cases holding that corporations have racial identities and are thus capable of bringing racial discrimination suits.  This Note analyzes the Court’s use of the Dictionary Act and compares the decision in Hobby Lobby to case law holding that corporations have racial identities under federal civil rights statutes.  Finally, this Note analyzes the Court’s holding that Dictionary Act was applicable and that corporations are persons capable of exercising religion, with a special focus on the similarities between cases holding that corporations are persons within the meaning of RFRA, and cases holding that corporations are persons within the meaning of civil rights legislation.