Vol. 104 Issue 5

When advertisers in the 1990s were developing what would become the highly successful “got milk?” campaign, they struggled with the fact that milk, as a daily staple, was not a “very high-interest item in people’s lives.” People at the time already “knew” that milk was good for them, and advertisements that highlighted the health benefits of milk did little to drive people to the udder. Rather than trying to redefine what milk meant to the public, these advertisers instead capitalized on the “irreplaceability” of milk, and the resulting “got milk?” campaign was “an acknowledgement that milk is essential, and if you don’t have it, then something is missing.”

In the District of Columbia, the U.S. Attorney’s Office has absolute authority to charge sixteen- and seventeen-year-olds as adults for certain crimes and prosecute them as adults in the Criminal Division of D.C. Superior Court, automatically divesting the juvenile justice system of jurisdiction over them. No hearing is afforded to those individuals to determine whether they are beyond the rehabilitative reach of the juvenile justice system. When convicted, they face adult sentences in adult correctional facilities. Nearly all U.S. states likewise permit the prosecution of children under eighteen in adult courts in some cases, but each of those state laws is dissimilar from D.C.’s in one important way: the D.C. law, known commonly as Title 16, was passed by the U.S. Congress, and only Congress—not D.C. residents legislating through their elected representatives on the D.C. Council—can change it. The D.C. Home Rule Act bars the Council from enacting any law touching on the jurisdiction of D.C. courts or the power of the U.S. Attorney. This Note challenges the constitutionality of this scheme.

Criminal law scholars have long agreed that prosecutors wield vast and largely unreviewable discretion in the criminal justice system. This Article argues that this discretion now extends beyond criminal penalties and broadly reaches civil public policy decisions, such as deportation and licensing. As a result of ubiquitous plea bargaining and collateral consequences—state-imposed civil penalties that are triggered by criminal convictions—prosecutors can deliberately exercise discretion to trigger or avoid important civil consequences. This aspect of prosecutorial discretion has been underexamined, partly because of a lack of awareness of collateral consequences. But as a result of important new initiatives designed to promote information about collateral consequences, prosecutors as well as defendants are becoming more likely to know that even minor convictions can trigger much more serious civil penalties.

Increasingly, people are claiming that practicing their religion gives them a right to inflict injuries on others. Court clerks assert their religion gives them a right to refuse to give marriage licenses to same-sex couples. Businesses claim that their owners’ religious beliefs are a basis for refusing to provide services at same-sex weddings. Employers demand the right to deny insurance coverage to employees for contraceptives. Doctors maintain that they may refuse to provide assisted reproductive technology services to lesbians and same-sex couples. Pharmacists want the right not to fill prescriptions that they see as violating their religious beliefs. Parents profess a religious right to restrict their children from receiving medical care, opting instead for prayer. As we have written in the context of vaccinations, some states provide religious exemptions for parents who wish to withhold this important, basic preventative treatment from their children, placing not only their kids, but also others at risk.

In July 2014, the U.K. government inaugurated a £200 million sukuk1 issuance, making it the first non-Muslim government to turn to this method of Shari‘ah-compliant financing in place of a conventional sovereign bond structure. This landmark issuance represents the increasing interest that non-Muslim investors in financial capitals worldwide have taken in the rapidly growing Islamic finance industry. The ability of Islamic financial institutions (IFIs) to attract non-Muslim investors while simultaneously marketing themselves as an Islamic alternative to conventional interest-based financing has solidified the Islamic finance industry as an important component of the global financial system.

This Article explores the rise of “machines” in criminal adjudication. Human witnesses now often give way to gadgets and interpretive software, juries’ complex judgments about moral blameworthiness give way to mechanical proxies for criminality, and judges’ complex judgments give way to sentencing guidelines and actuarial instruments. Although mechanization holds much promise for enhancing objectivity and accuracy in criminal justice, that promise remains unrealized because of the uneven, unsystematic manner in which mechanized justice has been developed and deployed.

International tax avoidance by multinational corporations is now frontpage news. At its core, the issue is simple: the tax regimes of different countries allow multinational corporations to book much of their income in low-tax or no-tax jurisdictions, and many of their expenses in high-tax jurisdictions, thereby significantly reducing their tax liabilities. In a time of public austerity, citizens and legislators around the world have been more focused on the resulting erosion of the corporate income tax base than ever before. In response, in 2012, the G-20—the gathering of the leaders of the world’s twenty largest economies—launched the Base Erosion and Profit Shifting (BEPS) project, the most extensive attempt to change international tax norms since the 1920s.

This Article introduces the concept of “quasi-public spending” to describe [a] type of policy, whereby public provision of goods and services is effected not through direct, tax-funded government programs, as is common in continental Europe, but rather through a mixture of individuals’ direct expenditures driven by government subsidies and mandates, smaller scale taxes to make distributional adjustments, and heavy public regulation of the private market. Thus, rather than pay a tax to the government in exchange for the good or service, individuals are encouraged (or required) to purchase the good or service directly, but with government subsidies (raised from lower taxes) to address distributional issues, and regulations to ensure that the good or service is provided consistent with public programmatic goals.