Tax Clinic: Making Peace with the IRS
Many Virginians are heaving a sigh of relief after getting tax returns done and in the mail, but for some the challenge of paying taxes as just begun.
They’re the ones who get notices from the IRS. At the very least, that’s an annoyance, and for some it’s a nightmare, but free help could be a phone call away.
Every state has at least one federally-funded office to help people having trouble with the Internal Revenue Service. In Virginia there are two: the Community Tax Law Project in Richmond and the Tax Clinic at Washington and Lee’s School of Law.
The clinic provides services at no charge to anyone who qualifies.
To hear WVTF’s report on the clinic, click here.
W&L Professor David Bruck recently participated in oral arguments before the South Carolina Supreme Court on behalf of his client, Billy Wayne Cope. The Herald of Rock Hill, S.C. covered the proceedings in an article on November 13, 2012. Here is an excerpt:
The fate of Billy Wayne Cope , convicted of raping and killing his own 12-year-old daughter in a 2001 crime that he confessed to but claims he did not commit, now rests with the S.C. Supreme Court .
Cope’s lawyer, David Bruck , claimed defiantly Tuesday to the state’s highest court that Cope “did not get a fair trial” in 2004. Bruck said the other man convicted in the crime, a sexual predator named James Edward Sanders , is the sole monster.
. . .
The Supreme Court , which spent about 45 minutes grilling Bruck and Zelenka, made no decision Tuesday. A decision could be reached in weeks or months.
. . .
Only Bruck, Zelenka and the five justices spoke. The Supreme Court hearing was a legal fistfight, with the justices repeatedly interrupting the lawyers and demanding answers about the confessions and more. It will take a majority – three of the five justices – to overturn any conviction and potentially order a new trial.
Nobody disputes that Cope was home with his three daughters when Amanda, the oldest, was brutally attacked.
. . .
In the hearing, the justices first heard from Bruck, the Virginia law professor who specializes in claims of wrongful convictions. In 2004, the trial judge refused to allow Cope’s defense attorneys to tell the jury about all of Sanders’ previous rapes and break-ins. Not being able to tell the jury that Sanders was a serial sexual predator, Bruck argued, gutted the defense case.
. . .
“To say that was a fair trial…That simply was not true,” Bruck stated.
The justices then turned to Zelenka, from the attorney general’s office, who claimed that the other crimes Sanders committed were not “sufficiently similar” and, therefore, should have stayed out of the trial. The trial judge’s decision in 2004 not to allow the jury to consider Sanders’ other crimes was “a harmless error,” Zelenka claimed.
But Bruck pounced, describing that claim as “a retreat” by prosecutors who fought to keep Sanders’ sexual deviance away from the jury.
“There is no way that this was harmless,” Bruck argued.
The justices were clearly concerned about the evidence excluded in the 2004 trial. Justice Costa Pleicones stated that excluding some of the evidence “deprived Mr. Cope the opportunity to present a defense.”
David Bruck is a Clinical Professor of Law and Director of the Virginia Capital Case Clearinghouse at Washington & Lee University School of Law.
Professor A. Benjamin Spencer is featured in the October 2012 issue of the Virginia Lawyer, the official publication of the Virginia State Bar. Professor Spencer appears in his capacity as Chair of the VSB Section on the Education of Lawyers. In the magazine, Professor Spencer introduces the issue, which is dedicated to coverage of the recent Twentieth Anniversary Conclave on the Education of Lawyers in Virginia.
The 2012 Conclave, which was put on by the Section that Professor Spencer chairs, was a meeting of members of the bench, bar, and legal academy to discuss the challenges facing legal education and how we can work together to tackle them. The panel discussions focused on education during law school, the bar admissions process, continuing legal education beyond law school, and the role of judges in improving the training and preparation of lawyers for practice.
For more details regarding the substance of the 2012 Conclave or to read each of the reports that came out of the event, visit the Virginia Lawyer Web page. Complete Conclave materials, including transcripts, DVDs, and written materials for the event are available at a dedicated website: http://www.vsb.org/site/members/20th-anniversary-conclave.
A. Benjamin Spencer is the Associate Dean for Research and a Professor of Law at Washington & Lee University School of Law, where he also serves as Director of the Frances Lewis Law Center.
We are pleased to announce the publication of the third edition of Professor Russell Miller‘s book The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University Press). This renowned English-language guide to German constitutional law has been fully updated and significantly expanded to incorporate previously omitted topics and recent decisions of the German Federal Constitutional Court, and includes a new foreword by Justice Ruth Bader Ginsburg.
“In the endeavor to gain knowledge from the problems confronted and resolutions reached by our counterparts abroad, the work of Donald P. Kommers, now joined by Russell A. Miller, is a rich resource. Offering far more than excellent English-language translations of the decisions of a renowned tribunal, Professors Kommers and Miller supply incisive analyses and commentary. I am pleased to herald the publication of this third edition of a masterful text. . . . Brought right up to the moment . . . The Constitutional Jurisprudence of the Federal Republic of Germany is an engaging, enlightening, indispensable source for those seeking to learn from the text and context of German constitutional jurisprudence.”—From the foreword by Ruth Bader Ginsburg, Associate Justice, the Supreme Court of the United States
First published in 1989, The Constitutional Jurisprudence of the Federal Republic of Germany has become an invaluable resource for scholars and practitioners of comparative, international, and constitutional law, as well as of German and European politics. The third edition of this renowned English-language reference has now been fully updated and significantly expanded to incorporate both previously omitted topics and recent decisions of the German Federal Constitutional Court. As in previous editions, Donald P. Kommers and Russell A. Miller’s discussions of key developments in German constitutional law are augmented by elegantly translated excerpts from more than one hundred German judicial decisions.
Compared to previous editions of The Constitutional Jurisprudence of the Federal Republic of Germany, this third edition more closely tracks Germany’s Basic Law and, therefore, the systematic approach reflected in the most- respected German constitutional law commentaries. Entirely new chapters address the relationship between German law and European and international law; social and economic rights, including the property and occupational rights cases that have emerged from reunification; jurisprudence related to issues of equality, particularly gender equality; and the tension between Germany’s counterterrorism efforts and its constitutional guarantees of liberty. Kommers and Miller have also updated existing chapters to address recent decisions involving human rights, federalism, European integration, and religious liberty.
For more information, and to order the book directly from Duke University Press, please visit http://www.dukeupress.edu/Catalog/ViewProduct.php?productid=13809.
Professor Mark Drumbl Lectures at Oxford, Cambridge, and University of London; Addresses Conferences in The Hague and Australia; Appointed to AALS Committee
W&L law professor Mark Drumbl‘s book Reimagining Child Soldiers in International Law and Policy, which published earlier this year, encourages a second look at how we think about child soldiers, and what effective rehabilitation and reintegration means for them. In the last week of October 2012, he lectured on the book at Cambridge, Oxford, and the University of London. The presentations connected the arguments in the book with major recent events, such as the Kony2012 video and judgments of international courts to convict and sentence high-profile defendants on charges of unlawful conscription, enlistment, or use of child soldiers. You can listen to Professor Drumbl’s Cambridge lecture here. The Oxford lecture is available here.
Professor Drumbl has written about these recent events in journals, blogs (here and here), and he has also spoken about them in you tube format. Reimagining Child Soldiers has received positive initial review, including on the Lawfare blog. Its first chapter has been translated into German for separate publication in Germany.
In September 2012, Prof. Drumbl spoke and chaired a panel discussion at a major conference held in the Peace Palace in The Hague, Netherlands, convened to discuss the Tenth Anniversary of the International Criminal Court. He also participated in an on-line symposium on the question whether atrocity perpetrators who spare some group members should have that factor considered in mitigation of sentence. His comments are here.
Professor Drumbl was recently appointed to the Advisory Committee on Global Engagement of the Association of American Law Schools (AALS). The mandate of this committee is to present to the AALS Executive Committee a new approach to the internationalization of legal education in light of the changing demands on the legal profession.
In September Professor Drumbl presented a work-in-progress at an interdisciplinary conference at the University of Melbourne (Australia) entitled the Passions of International Law. A paper he had previously presented at the Melbourne Law School, “Germans are the Lords and Poles are the Servants”: the Trial of Arthur Greiser in Poland, 1946 will be published as a chapter in a volume put out by Oxford University Press entitled Untold Stories: The Hidden Histories of War Crimes Trials in early 2013. The Greiser trial is the first trial for the crime of waging aggressive war brought in the aftermath of the Second World War.
Professor Drumbl’s article The Curious Criminality of Mass Atrocity, which was initially presented in June 2012 in a conference in Amsterdam, will appear as a chapter in a book under contract with Oxford University Press. Another article ‘She Makes Me Ashamed to Be a Woman’: The Genocide Conviction of Pauline Nyiramasuhuko, 2011, will appear in the Michigan Journal of International Law in 2013. Professor Drumbl also contributed to the to the Official French Commentary to the Rome Statute of the International Criminal Court (Université de Paris, 2011, http://www.commentaire-cpi.com/), a piece entitled La CPI et les victimes d’atrocités.
Mark Drumbl is the Class of 1975 Alumni Professor at Washington & Lee University, School of Law, where he also serves as Director of the University’s Transnational Law Institute.
W&L Law Professor Robin Fretwell Wilson recently commented on the legal considerations relating to cohabitation by unmarried couples. Her comments appeared in Essence Magazine and addressed what such couples need to keep in mind when it comes to children, health matters, property & assets, and inheritance issues.
To view Professor Wilson’s discussion, click here.
Professor Robin Fretwell Wilson is the Class of 1958 Law Alumni Professor of Law at Washington & Lee University School of Law. A specialist in Family Law and Health Law, her research and teaching interests also include Insurance and Biomedical Ethics. Professor Wilson is the editor of four volumes: Health Law and Bioethics: Cases in Context (with Sandra Johnson, Joan Krause and Richard Savor, 2009); Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Rowman & Littlefield Publishers, Inc., 2008) (with Douglas Laycock and Anthony A. Picarello);Reconceiving the Family: Critique on the American Law Institute’s Principles of the Law of Family Dissolution (Cambridge University Press, 2006); and the Handbook of Children, Culture & Violence(Sage Publications, 2006) (with Nancy Dowd & Dorothy G. Singer). Her articles have appeared in the Cornell Law Review, theEmory Law Journal, the North Carolina Law Review, and the San Diego Law Review, as well as in numerous peer-reviewed journals.
W&L Professor Jim Moliterno spoke regarding the 3L curriculum reform recently at the University of Denver. At this conference of Educating Tomorrow’s Lawyers (ETL), Professor Moliterno was given the Rebuilding Justice Award by ETL’s associated organization, the Institute for the Advancement of the American Legal System (IAALS). The award was in recognition of his 30 years of engaging in legal education reform.
At the conference, Moliterno presented the most current information about the 3L curriculum, including recent statistics from the Law School Survey of Student Engagement (LSSSE). The recent LSSSE numbers indicate that W&L’s third-year students are dramatically more engaged in their studies than were W&L’s past third-year students and the current third-year students at W&L’s peer law schools.
“I am thrilled to be the first legal educator to receive the Rebuilding Justice Award from IAALS,” said Moliterno. “Building or rebuilding justice starts in the law schools—law students represent the future of justice in any society.”
Moliterno has spent his career as a legal educator seeking ways to infuse experiential learning into legal education. He was the architect of William and Mary law school’s award winning ethics, skills, and professionalism program, which in 1991 won the American Bar Association Gambrell Professionalism Award, as the best law school or bar association program for the teaching of ethics and professionalism.
Professor Russell A. Miller to Convene Symposium in Honor of Renowned German Constitutional Law Scholar
W&L Law Professor Russell Miller has organized a symposium in honor of Don Kommers, a German legal academic who is widely seen as one of the founders of the comparative constitutional law discipline and a much-admired specialist on German constitutional law. To honor him on his 80th birthday, Professor Miller has partnered with two prestigious academic institutions in Berlin–and several important sponsors–for this symposium. The program will be hosted by the Wissenschaftskolleg zu Berlin (Berlin Academy of Science) and the American Academy in Berlin. Sponsors include the Draeger Foundation, the German Federal Ministry of Justice, Notre Dame University and the German Law Journal.
The event begins on Friday, October 26, in the evening with a dinner and podium discussion, the latter featuring Kommers in conversation with former German Constitutional Court Justice Dieter Grimm and Harvard Law Professor Vicki Jackson. Among the invitees to the dinner are a high-level, ministerial delegation from the German Federal Ministry of Justice and current and former justices of the German Constitutional Court. On Saturday, October 27, there will be two panels exploring the theme “The Curious Life of the Grundgesetz in America” and will aim to consider how Kommers’ work–which opened up German constitutional law for American researchers–impacted German constitutional law. The first panel will feature Americans who work on German constitutional law, including a presentation by Professor Miller entitled “What we Teach When we Teach German Constitutional Law”. The second panel will feature Germans who have extensive experience in America, including current German Constitutional Court Justice Susanne Baer.
W&L Law Professor Timothy Jost gave the Roy Ray lecture at the SMU Dedman School of Law on September 13. His talk was entitled “The American Health Care System: Three Histories and Three Possible Futures.” In the talk, Professor Jost analyzed the contested narrative of the American health care system’s past and how we should build a future on the successful elements of our present system.
Professor Jost also recently participated in a symposium on the Supreme Court’s recent decision on the Affordable Care Act at Columbia Law School. The symposium, entitled The Health Care Case: The Supreme Court’s Decision and Its Implications, took place on September 28 and featured a discussion of the impact of the decision–NFIB v. Sebelius–by Professor Jost.
Timothy Jost, a nationally-recognized expert in health care law, holds the Robert L. Willett Family Professorship of Law at the Washington and Lee University School of Law. He is a co-author of a casebook, Health Law, used widely throughout the United States in teaching health law, and of a treatise and hornbook by the same name. He is also the author of Health Care Coverage Determinations: An International Comparative Study;Disentitlement? The Threats Facing our Public Health Care Programs and a Rights-Based Response; and Readings in Comparative Health Law and Bioethics, the second edition of which appeared this spring.
Here is a recent commentary by Professor Robin Wilson and W&L Law alumnus Anthony Kreis featured on SCOTUSblog addressing same-sex marriage and Perry v. Brown:
Few decisions are so roundly criticized as the Ninth Circuit’s decision in Perry v. Brown. Same-sex marriage opponents predictably called it a form of “judicial tyranny” while some marriage proponents described it as “dishonest and foolish.” If the Supreme Court denies certiorari, it will likely satisfy neither side fully.
However, the denial of cert. would have the singular benefit, as the City of San Francisco suggests in its brief in opposition, of allowing the “significant constitutional questions” surrounding same-sex marriage to “percolate . . . [so that the] ‘perspective of time’ helps to shed more light on the weighty issues they present.” The need for percolation is particularly imperative because, as the city highlights, “this case raises issues that are currently the subject of intense legislative and popular debate.”
Not least among the issues being resolved by the state legislatures that have considered and sometimes recognized same-sex marriage legislatively is how best to balance compelling societal interests in our plural democratic society when recognizing same-sex marriage.
Through sometimes bruising legislative battles, nuanced laws recognizing same-sex marriage have been crafted in seven jurisdictions, where legislators have acknowledgedtwo compelling values – marriage equality and religious liberty.
These states have all acknowledged the impact of same-sex marriage laws on a wide swath of society that adheres to a heterosexual view of marriage. Each law provides religious liberty protections to the clergy, but then reaches beyond guarantees given by the First Amendment. A core of protections has emerged for religious organizations and individuals who cannot celebrate or facilitate any marriage when doing so would violate their religious convictions.
Although each law describes the exempt activities in slightly different terms, they generally allow objecting religious institutions and religious non-profits to step aside from providing “services, accommodations, advantages, facilities, goods, or privileges to an individual if … related to the solemnization of a marriage [or] the celebration of a marriage.” These statutes insulate religious organizations from civil suits for refusing to celebrate marriages, while six of the seven explicitly protect such organizations from punishment at the hands of the government.
All insulate religious not-for-profits, like Catholic Charities or the Salvation Army, from the duty to celebrate or solemnize marriages that violate their religious tenets. Four extend these protections to benevolent religious organizations, like the Knights of Columbus, or to religious groups that sponsor marriage retreats or provide housing for married individuals. In New York, New Hampshire, and Washington, individual employees of these groups receive protection, too. Although many provisions were cobbled together in the pressure cooker of short legislative sessions and so are far from perfect, they nonetheless sweep far beyond the church sanctuary, providing accommodations that exceed what most scholars believe would be constitutionally demanded.
While accommodations obviously benefit religious objectors, accommodations have also become a pathway to social change for same-sex marriage advocates. Indeed, as the legislators responsible for this legislation explain, marriage equality has shared an inseparable fate with religious liberty protections.
In New York, Maryland, and Washington, religious accommodations helped same-sex marriage advocates secure long-sought victories. Only months before the successful legislation, proposed legislation offering “faux” protections only to the clergy – who simply do not need it – failed to garner sufficient support in all three states. After Governor Andrew Cuomo signed New York’s same-sex marriage law in the summer of 2011, The New York Times observed that the religious exemptions were:
just a few paragraphs, but they proved to be the most microscopically examined and debated — and the most pivotal — in the battle over same-sex marriage…. Language that Republican senators inserted into the bill legalizing same-sex marriage provided more expansive protections for religious organizations and helped pull the legislation over the finish line Friday night.
Others took note, like Washington State Governor Christine Gregoire. Working with members of the legislature, Governor Gregoire drafted her own same-sex marriage legislation containing much more expansive religious liberty provisions than introducedpreviously. Governor Gregoire said in a telephone interview:
I looked at what New York had done. I worked with our gay community. I told them that that was the only way I would introduce the bill. There were some people who wanted to compromise on [the religious liberty protections] in the future. But I said, “No,” that this was in part a reflection of my evolution on the issue, and it wasn’t compromisable.
As in New York and Washington, in Maryland religious liberty exemptions shifted the question for some legislators from whether to embrace marriage equality to howto balance that good with religious liberty.That shift resulted in successful legislation in 2012 where it had failed in 2011. Speaker Busch of the Maryland House of Delegates said in an interview that revamped, more expansive religious liberty protections made the difference:
We didn’t want to inhibit any religious organization from practicing their beliefs. One of the issues was the adoption issue. We wanted to make sure we didn’t impede on the Catholic Church for adoption services. … I know for a fact that for two or three delegates [including religious liberty protections] was an important component in their decision to vote for it.
Even in the earliest fights over same-sex marriage, religious liberty protections proved vital. In 2009, the New Hampshire House and Senate passed a same-sex marriage bill without meaningful religious liberty protections, by razor-thin majorities. Governor John Lynch then warned legislators, “If the legislature passes [religious liberty protections], I will sign the same-sex marriage bill into law. If the legislature doesn’t pass these provisions, I will veto it.” The legislature heeded his caution and New Hampshire has same-sex marriage today, notwithstanding later efforts to repeal that legislation.
Contrast these legislative victories with the defeat in Maine. There, Maine legislators stubbornly refused to include religious liberty protections in its 2009 same-sex marriage legislation. They enacted a law that allowed religious institutions to control their religious doctrines and protected clergy and authorized celebrants from fines or other penalties for refusing to “join persons in marriage.” It provided no other protection.
Later that year, Maine voters narrowly rejected Maine’s same-sex marriage law in a people’s veto –fifty-three percent to forty-seven percent. One way to read Maine’s experience is that same-sex marriage laws without meaningful religious liberty protections makes making the case for same-sex marriage much more difficult.
Whatever else may be said of leaving the Ninth Circuit’s opinion in Perry intact, it will allow legislators in Delaware, Illinois, New Jersey, Rhode Island, and California to build on this burgeoning story of compromise – and that is a good thing for same-sex marriage supporters and opponents alike.