Issues to Watch

Issues to Watch

Is Sexting Child Porn?  Maryland Court of Appeals Set to Decide this Term.


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* Shannon Hayden

Legislatures and courts alike have had trouble keeping up with the ever-evolving technological advances in today’s modern world.  Vivek Wadhwa, Laws and Ethics Can’t Keep Pace with Technology, MIT Tech. Rev. (Apr. 15, 2014), https://www.technologyreview.com/s/526401/laws-and-ethics-cant-keep-pace-with-technology/.  Technology is developing more rapidly than before, causing gaps between the times that new technology emerges and when laws are actually made to address these changes.  Wadhwa, supra.

In Maryland, this delay in the development of the law has led to an issue that courts around the country are also facing: whether minors, who consensually “sext” other minors by sending photos and videos depicting sexual conduct, are involved in distributing child pornography in violation of state law.  See In re S.K., 186 A.3d 181 (Md. Ct. Spec. App. 2018); see also State v. Gray, 402 P.3d 254 (2017) (upholding the child pornography conviction of a seventeen-year-old boy who sent unsolicited images of his genitals to an adult woman); Teresa Nelson, Minnesota Prosecutor Charges Sexting Teenage Girl with Child Pornography, Am. Civil Liberties Union (Jan. 5, 2018, 11:45 PM), https://www.aclu.org/blog/juvenile-justice/minnesota-prosecutor-charges-sexting-teenage-girl-child-pornography.  The Maryland Court of Appeals will decide on this issue next year when it hears arguments in the case of In re S.K. (more…)

Issues to Watch

The Insidious Slippery Slope of Our Freedom of Speech and Expression


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*Sumbul Alam

Heightened surveillance of noncitizens in the United States has been increasing since the 1980s.  See Anil Kalhan, Immigration Surveillance, 74 Md. L. Rev. 1, 11–16 (2014).  Throughout the decades, citizens and noncitizens at the border have been subjected to more intrusive questioning, as well as searches and seizures of computer hard drives and other electronic storage media with limited, if any, judicial oversight.  Id. at 16–17.  This may promulgate extreme bias of the enforcement agent.  See id. at 20–25.  For example, soon after the 2001 terrorist attacks, the Federal Bureau of Investigation (FBI) initiated a program of voluntary interviews for thousands of nonimmigrant Arab and Muslim men; subsequently, in 2002, the Attorney General required noncitizens from specific countries which were predominately Arab or Muslim to register in a national database.  Id. at 20. (more…)

Issues to Watch

The Annual Filing Season Program: A Brief Examination of AICPA v. IRS and the Resulting Regulations on Tax Return Preparers


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*Brenton Conrad

I.  Introduction

On August 14, 2018, the United States Court of Appeals ruled in favor of the Internal Revenue Service’s (IRS) Annual Filing Season Program, which was enacted to serve as a means of combatting the growing concerns involving fraudulent tax returns.  AICPA v. IRS, No. 16-5256, 2018 U.S. App. LEXIS 22583 (D.C. Cir. Aug. 14, 2018).  This program seeks to incentivize unenrolled tax preparers (preparers not subject to any licensing requirement with the IRS) to voluntarily obtain a “Record of Completion.”   Id. at 3.  A Record of Completion grants these preparers a “limited practice right” in representing a taxpayer in the audit and tax return process and places their names on the IRS’s online directory of tax preparers.  Id. at 3, 4.  While on its face the IRS’s program may benefit taxpayers, the American Institute of CPAs (AICPA) disagrees.  Then-AICPA President Barry C. Melancon made this clear when he stated, on behalf of the association and its constituents, “[w]e believe a voluntary program would create confusion regarding the relative proficiencies of the various types of preparers.”  Isaac M. O’Bannon, AICPA Says IRS Voluntary Preparer Regulation System Doesn’t Protect Taxpayers, CPA Practice Advisor (May 21, 2014), https://www.cpapracticeadvisor.com/news/11474865/aicpa-says-irs-voluntary-preparer-regulation-system-doesnt-protect-taxpayers.  Then-chair of the AICPA Tax Executive Committee Jeffery A. Porter said that “any voluntary regime constructed would still not address the problems with unethical and fraudulent tax return prepares.”  Id. (more…)

Issues to Watch

Study Showing Racial Bias in Death Penalty Sentencing Leads Washington State’s Highest Court to Rule Washington’s Death Penalty Statute Violated State’s Constitution


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*Ryan W. Fish

The Supreme Court of Washington recently ruled in State v. Gregory that the state’s death penalty was unconstitutional because it was imposed in “an arbitrary and racially biased manner.”  State v. Gregory, 427 P.3d 621, 621 (Wash. 2018).   This marks the fourth time that Washington has done so.  Id. at 626.  Washington is now one of twenty states which have abolished the death penalty.  Mark Berman, Washington Supreme Court Strikes Down State’s Death Penalty, Saying It Is ‘Arbitrary and Racially Biased, Wash. Post (Oct. 11, 2018), https://www.washingtonpost.com/news/post-nation/wp/2018/10/11/washington-supreme-court-strikes-down-states-death-penalty-saying-it-is-arbitrary-and-racially-biased/. (more…)

Issues to Watch

How Future Generations are Suing the Federal Government for a Habitable Planet


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“The concept of global warming was created by and for the Chinese in order to make U.S. manufacturing non-competitive.” – Donald Trump*

** Joseph Rossi

In 2015, a group of twenty-one children filed an official complaint against the United States government, then-President Barack Obama, and several governmental agencies, including the Environmental Protection Agency (EPA).  Juliana v. United States, 217 F.Supp.3d 1224, 1233 (D. Or. 2016).  In the complaint, these children alleged that the government had infringed on their rights by failing to ensure a habitable climate for their future, despite decades of knowledge of the risks posed by man-made climate change.  Complaint at 3-6, Juliana v. United States, 217 F.Supp.3d 1224 (D. Or. Aug. 12, 2015) (No. 6:15-cv-01517-TC).  In the history of the United States court system, the government has been sued for climate change close to 900 times, but these claims have been dismissed due to various reasons related to the plaintiffs’ standing or claim of injury.  See Katy Scott, Can ‘Climate Kids’ Take on Governments and Win?, Cable News Network (July 24, 2018, 10:51 PM), https://www.cnn.com/2018/07/24/health/youth-climate-march/index.html.  In 2016, however, Juliana v. United States became the first such case of private citizens suing the government to survive the government’s motion for dismissal.  See Juliana, 217 F.Supp.3d at 1262.  Juliana, which is currently being argued in front of the Ninth Circuit, has the potential to drastically change not only the course of environmental law, but the entire environmental policy of the United States regarding climate change.  Id. (more…)