Ohio Northern University Law Review

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Current Issue

Volume 36, Issue 1

Article Abstracts

The Congress within the Congress: How Tax Expenditures Distort Our Budget and Our Political Processes

by Edward D. Kleinbard

In this Article, Edward D. Kleinbard addresses the legislative process as it relates to taxation.  Specifically, he examines how tax expenditures distort tax policies and the true size and activities of the federal government.  Further, he contends these expenditures alter the traditional functions of tax writing committees. The author concludes that there is an overreliance on tax expenditures that expands the traditional role of the committees and in turn effects tax policies.  In the end, he identifies future workthat can help in this area and offers suggestions for proper allocation of these expenditures and oversight measures on the tax writing committees.

Dolphin Delivery: The Constitutional Values Standard and its Implications for Private Law in Quebec

by Willmai Rivera Perez

The author, Willmai Rivera Perez, analyzes the effects of RWDSU v. Dolphin Delivery upon both the common law tradition of Canada and the civil law tradition of the Canadian province of Quebec.  The analysis begins with a discussion of Dolphin Delivery’s holding that the individual rights guarantees contained in the Canadian Charter of Rights and Freedoms directly apply only to actions by the executive and legislative branches of government.  Actions between private parties, or judicial enforcement of the common law need only to be consistent with Charter values.  The author then discusses the history of the Canadian Charter of Rights and Freedoms, and uses the example of defamation law in order to highlight the differences between the application of law in Canada under the traditions of both common law and civil law.  The author concludes by explaining the ability of Canada’s federal system to adapt to a redesigned procedure which would allow Quebec‘s civil law tradition to survive in actions which require application of Canada’s Charter of Rights and Freedoms.

A Permit to Practice Religion, for some but not for Others: How the Federal Government Violates Religious Freedom When it Grants Eagle Feathers Only to Indian Tribe Members

by Kyle Persuad

This Article explores the possession of eagle feathers for use in religious observances.  Federal law prohibits possession of eagle feathers, but permits members of Native American tribes to possess eagle feathers for religious purposes.  The author argues that the federal government must allow those not belonging to a tribe who wish to practice Native American religions to have access to eagle parts.  First, this Article examines religious freedom law in the United States and the federal scheme regulating eagle parts.  Second, it discusses three federal appellate court cases featuring contradictory holdings regarding the right of non-members to possess eagle parts.  Third, it analyzes these appellate holdings and proposes a uniform standard that ensures access to eagle parts for anyone seeking to use them for religious purposes.

Reconciling Conflicting Values: University Hate Speech Policies and the Captive Audience Doctrine

by Melissa Weberman

Student hatred and racially abusive speech directed at members of minority groups has emerged as a significant problem for universities throughout the country.  This Article explores the constitutional issues presented by university regulation of student conduct in an effort to combat “hate speech.”  The First Amendment extends to universities, however, a university also possesses the right to regulate or exclude First Amendment activities that interfere with the educational opportunities of other students.  Therefore, the central question raised is how, and to what extent, can a university draft hate speech policies without offending the First Amendment.  This Article suggests that hate speech policies are consistent with the First Amendment values if they avail themselves of the captive audience doctrine in specific contexts, rather than generally applying the policies to all parts of university life. 

Webster Plus One: Solving the “Impossible” Apportionment Debate

by Mark M. Bell

In this Article, Mark M. Bell explores the historical approaches to congressional apportionment and purposes a new method to solve the current decennial debate— the “Webster Plus One” approach.  Arguing that any proposed method must be proportionate and representative to pass constitutional muster, he concludes that the Webster approach is the only one of the six highly debated methods that is not facially inconsistent with one or both standards.  While the Webster method does not propose an issue as to the latter requirement, the authoracknowledges that there is a slight probability that this method will violate the proportionality standard.  By implementing the traditional Webster approach and adding an additional representative when it yields a disproportionate figure, he states that the “Webster Plus One” method will solve this age-old debate.

Mark-to-Market: Delivering the Financial Crisis to Your Front Door

by Jana Shearer

Jana Shearer labels the practice of mark-to-market asset recording in today’s economy as the “messenger” of the current economic crisis as opposed to the cause.  She examines the historical background of financial reporting in the United States and the re-emergence of mark-to-market in the mid 1970s to early 1980s.  The author's contention is that the current economic crisis would have happened eventually, but it occurred sooner rather than later due to the role of mark-to-market accounting.  In concluding, she argues that abandoning mark-to-market would not fix the underlying problems, and instead suggests using mark-to-market accounting in conjunction with pro forma financial statements to report the fair value of securities.

Please look for these articles and others in Volume 36, Issue 1 of the Ohio Northern University Law Review.