Note: The Prosecution of Child Soldiers: Balancing Accountability with Justice

I saw some other SBU [Small Boys Unit] boys coming closer to me with another small boy and the boy was crying, screaming.  He asked them, “What have I done?”  They didn’t say anything to him, but the boy was screaming.  At first they had to put his right arm on a log.  They took a machete and amputated it at the wrist.  The boy was screaming and they took the left arm again and put it on the same log and sliced it off.  He was still screaming and shouting.  They took the left leg and put it on the same log and cut it off at the ankle.  At last they took the right leg again and put it on the same log and cut it off with a machete.  Some held him by his hand at that time now and I am speaking about the same SBU boys.  They are the same people doing this.  Some held his other hand, legs.  They were swinging the boy.  They threw him over into a toilet pit.  I was there, I saw it myself.[1]

Children are capable of committing atrocious crimes.  With an estimated 300,000 child soldiers currently participating in armed conflict around the world,[2] children are undoubtedly responsible for numerous deaths, rapes, mutilations, and other crimes.  However, the international community has failed to set an age at which these children can be held legally responsible for their actions.  In contrast, domestic courts have further complicated the issue by setting the minimum age of criminal responsibility anywhere from seven to eighteen-years-old.

The Convention on the Rights of the Child (“CRC”) provides the most widely accepted definition of childhood:[3]  a child “means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”[4]  Unfortunately, the CRC lacks support from any international treaties binding this definition as the proper age of criminal responsibility.  Nonetheless, it correctly appears to allow for a lower age of majority taking into account individual cultures and domestic laws.

In determining the proper age at which a child can be held criminally liable, many factors must be considered, including physical and mental maturity, traditions, and culture.  Victims of these atrocities must also receive proper consideration.  Their quest for justice cannot be secondary to the rehabilitation and forgiveness of a child soldier.  This delicate balance is difficult to accommodate and certain non-judicial mechanisms, such as truth and reconciliation commissions and cultural cleansing rites, have provided some relief for both the victims and perpetrators.

While rehabilitative measures are preferable to judicial measures for all individuals under eighteen, both international and domestic courts must continue to retain their discretion to prosecute juveniles for the most atrocious crimes.  To properly ensure these judicial systems promote equality and justice, not simply retribution, it is crucial that the international community determine a uniform age at which a child can be held responsible in a global forum and consequently begin to set a precedent for domestic courts.

Part I of this Note introduces the basic concepts of international law, including international criminal law and the legal protections that have been established for individuals under eighteen-years-old.  Part II examines the difficulties that arise when determining the roles of children in armed conflict and the extent to which they can be held responsible for their actions.  Additionally, this section suggests several possible defenses that should be made available to juveniles if they are prosecuted in an international tribunal.  Part III provides a case study of the only person under eighteen years of age who has been prosecuted for a war crime since World War II and further evaluates the United States’ role in this trial and their general perspective towards the treatment of minors in combat.  Finally, Part IV emphasizes the need for an international consensus regarding the minimum age of criminal responsibility in international courts.

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Erin Lafayette: Syracuse University College of Law, J.D. 2013.



[1].  Transcript of Record ¶¶ 699-700, Prosecutor v. Taylor, SCSL 2003-01 (Jan. 8, 2008).  The SBU was a group of approximately 10,000 children, generally between the ages of 8-10, who were recruited by the Revolutionary United Front as militants during the civil war in Sierra Leone.  This was a common form of mutilation by children.

[2].  Children of Conflict:  Child Soldiers, BBC, http://www.bbc.co.uk/worldservice/people/features/childrensrights/childrenofconflict/soldier.shtml (last visited Jan. 12, 2012).  This number is unclear due to the difficulty in accurately counting children recruited into armed conflict.

[3].  Matthew Happold, Child Soldiers:  Victims or Perpetrators?, 29 U. La Verne L. Rev. 56, 62 (2008).  The CRC has been ratified by every State except the United States, Somalia, and South Sudan.

[4].  Convention on the Rights of the Child, art. 1, Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC].

Note: The Tale of the E-Book: Library Lending’s Newest Edition

Imagine the scene.  As the last moments of sunlight filter through the partially drawn shade, a comfy armchair beckons while the winter’s fire sets the mood, its warm glow illuminating . . . . Wait a minute!  That glow is not coming from the fire.  It’s coming from an iPad loaded with the most recent New York Times bestseller!  Wait, what?  That doesn’t seem right.  Let’s try that again.  Picture this.  A dimly lit library hall, shelves lined with leather bound books, the smell of rich mahogany fills the air, and the Kindle Fire powers on, its screen displaying the latest Stephenie Meyer chicklit . . . . Hold up just one minute.  What’s going on here?  When did the trendy and cool realm of the techies’ hottest picks invade the tried and true world of the bespectacled bookworm?  Have the techno-gadget advancements introduced by innovators like Apple’s Steve Jobs and Amazon’s CEO Jeff Bezos roused an otherwise sleepy publishing industry?  With e-book sales skyrocketing throughout the consumer market, the answer would seem to be an enthusiastic “Yes!”  If that is the case, what is to come of the most traditional public face of the book industry, the public library, in this electronically driven world?

“[N]othing would do more extensive good at small expense than the establishment of a small circulating library in every county, to consist of a few well-chosen books, to be lent to the people of the county under regulations that would secure their safe return in due time.”[1]  In the 200 years since Thomas Jefferson wrote these words, even the most forward thinking of American pioneers could not have envisioned the vast potential of this “small circulating library.”[2]  Forget two centuries.  Just a few short years ago, the technology that may serve to launch the American library into a leading pop cultural position was disparaged as “going nowhere fast.”[3]  This potential springboard is none other than the e-book, of course.  This modern book format has not only reinvigorated an outdated publishing industry,[4] it has also provoked a tidal wave in the tranquil waters of an otherwise predictable library system.[5]

Virtual library branches have become routine.  They enable library patrons to forego that trek to the local library, in exchange for an online e-book checkout complete with all the comfort and ease afforded by a home computer.[6]  The combination of free lending and a dynamic e-book format is a novel phenomenon which has catapulted an unsuspecting public library system into the front lines of e-book battles between major players like publishing houses, authors, agents, and techno-manufacturers.  These battles have revived discussions over the Copyright Act.[7]  As library lending makes its most dramatic change in over 200 years with its sudden capacity to lend to patrons absent a visit to the premises, the effect on both the prominence of the public library and the e-book market will be systemic.[8]  The balance between the interests at stake may come down to which weighs more, the traditional hardcover embodied in and protected by the old style business model of publisher and author, or the e-reader as embraced by the unlikely ally of the public library.  This ongoing plot will surely be played out in the next best page-turner.

This Note will narrate the story of the e-book and the public library system.  It will position the evolution of these characters within their historical and legislative contexts, examine the legal doctrines that customarily structure this relationship, and address reasons for the ineffectiveness of these doctrines in the digital environment.  After comparing the competing interests of the two sides and identifying the parties’ current practices, this Note will analyze the appropriateness of creating a Digital First Sale Doctrine and suggest a solution to the current conflict between libraries and publishers.

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Marysia Wlazlo: Syracuse University College of Law, J.D. Candidate, 2013; Boston College, B.A., summa cum laude, 2008.



[1].  Brief for American Library Association et al. as Amici Curiae Supporting Petitioners, Golan v. Holder, 131 S.Ct. 1600 (2011) (No. 10-545), 2011 WL 2533007 (quoting Letter from Thomas Jefferson to John Wyche (May 19, 1809), in Thomas Jefferson:  A Chronology of His Thoughts, 223 (Jerry Holmes ed., 2002)).

[2].  Thomas Jefferson:  A Chronology of His Thoughts, 223 (Jerry Holmes ed., 2002).

[3].  Claire Elizabeth Craig, Lending Institutions:  The Impact of the E-Book on the American Library System, 2003 U. Ill. L. Rev. 1087, 1095 (2003).

[4].  See, e.g., Michael Kelley, New Statistics Model for Book Industry Shows Trade Ebook Sales Grew Over 1,000 Percent, Libr. J. (Aug. 9, 2011), http://www.libraryjournal.com/lj/home/891561-264/new_statistics_model_for_book.html.csp.

[5].  See Bruce Judson, eBook Universe:  What Role Will Libraries Play?, ForeWord (Oct. 2010), reprinted in http://www.ilovelibraries.org/articles/featuredstories/ebook.

[6].  See Download Services for Public Libraries, OverDrive, Inc., http://www.overdrive.com/files/DLR.pdf (last visited Sept. 28, 2012).

[7].  See Craig, supra note 3, at 1092-93.

[8].  See id. at 1088.

Note: Young Fella, If You’re Looking for Trouble I’ll Accommodate You: Deputizing Private Companies for the Use of Hackback

A computer operator sits in front of a computer screen, monitoring a tank of toxic chemicals.[1]  A series of computers control the tank’s physical hardware.  All of a sudden, the lights in the control room fail, the computers go offline, and the computer operator yells, “[t]hey’re hitting one of our servers!”[2]  Hundreds of miles away, a team of hackers hired by Barney Advanced Domestic Chemical Co. (“BAD Company”) stare as lines of code scroll by on their laptops.[3]  BAD Company has just infiltrated and taken command of their business rival’s servers.[4]  With the click of a mouse, hackers from BAD Company order the toxic chemical tanks to overflow.[5]  Toxic chemicals seep out of the tanks and contaminate the surrounding countryside.[6]  The computer operators immediately call for a hazmat team.[7]  The exercise ends.[8]

This episode was just a Department of Homeland Security (“DHS”) cybersecurity exercise, but it highlights a massive national security threat: the ability for malicious computer code to infiltrate computer systems, cripple critical infrastructure, and steal massive quantities of intellectual property.[9]  The United States National Counterintelligence Executive (“ONCIX”) noted that “[s]ensitive [U.S.] economic information and technology are targeted by the intelligence services, private sector companies, academic and research institutions, and citizens of dozens of countries.”[10]  The loss of this technology has already cost the United States (“U.S.”) anywhere from $2 billion to $400 billion.[11]  Furthermore, the pace of U.S. data loss is increasing.[12]  Foreign intelligence services, private individuals, and foreign corporations have increased their efforts directed at stealing intellectual property, costing U.S. companies millions of dollars in development costs and tens or hundreds of millions of dollars in potential profits.[13]

There is no doubt that these cyber threats pose a huge problem for both the U.S. government and U.S. companies.  How, then, can we effectively prevent these threats?  Should we pour more money into network defenses?  Should we focus on attack response and recovery from the inevitable network penetration?[14]  Should we pursue an offensive doctrine that establishes a deterrent policy?  Perhaps the best approach is a combination of all three?

Furthermore, who should prevent these intrusions?  Should the U.S. government protect private networks, and does it have the legal ability to do so?  Should U.S. companies shoulder the burden of protecting themselves?  Do we want to empower companies to defend themselves outside their own perimeters?[15]  If so, how far does a company’s ability to defend itself extend?

These questions highlight a disturbing reality: many of the networks that control our electricity, water, financial systems, and other critical industries operate in a largely unregulated and unprotected cyberspace.[16]  In fact, cyberspace has drawn comparisons to the American Wild West; in both areas, black hat criminals have taken advantage of the lawlessness of their respective domains.[17]  To bring order to this chaos and tame the Wild West, private companies must have the ability to protect themselves in cyberspace.  As such, this note advocates for a form of cyber self-defense called active defense.  Active defense, colloquially known as “hackback,” is when a targeted entity uses a counter-cyberattack against an attacker’s system, thereby stopping the cyberattack in progress and discouraging future attacks.[18]

Part I of this note will analyze the cyber threat that both the U.S. government and U.S. companies currently face.  Part II will consider who is best suited to respond to these cyber threats—whether it is the private or the public sector—and what options each entity can pursue.  Part III assesses how the law of self-defense applies in cyberspace, paying particular attention to both the benefits and drawbacks of hackback.  Part IV transitions to a discussion of the Computer Fraud and Abuse Act (“CFAA”), the basic federal anti-hacking statute, and explains how the Department of Justice (“DOJ”) might view hackback.[19]  In doing so, I will propose a legal framework that allows companies to hackback under a deputy arrangement with the U.S. government, providing the benefits of hackback with the oversight of government regulation.

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Zach West: Juris Doctor Candidate 2013, Syracuse University College of Law.



[1].  Ellen Nakashima, Homeland Security Tries To Shore Up Nation’s Cyber Defenses, Wash. Post, Oct. 1, 2011, http://www.washingtonpost.com/world/national-security/homeland-security-tries-to-shore-up-nations-cyber-defenses/2011/09/27/gIQAtQ6bDL_story.html.

[2].  Id.

[3].  Id.

[4].  Id.

[5].  Id.

[6].  Nakashima, supra note 2.

[7].  Id.

[8].  Id.

[9].  Id.

[10].  Office Of The Nat’l Counterintelligence Exec., Foreign Spies Stealing US Econ. Secrets In Cyberspace, Report to Cong. on Foreign Econ. Collection and Industr. Espionage, 2009-2011, i (2011), available at http://www.ncix.gov/publications/reports/fecie_all/Foreign_Economic_Collection_2011.pdf [hereinafter “Foreign Spies”].

[11].  Id. at 4.

[12].  Id. at 1.

[13].  Id.

[14].  Gen. Michael V. Hayden, The Future of Things “Cyber”, 5 Strategic Stud. Q. 3, 5 (2011), www.au.af.mil/au/ssq/2011/spring/spring11.pdf.

[15].  Id.

[16]. See Greg Y. Sato, Should Congress Regulate Cyberspace?, 20 Hastings Comm. & Ent L.J. 699, 709 (1998) (“the Internet is highly unregulated; cyberspace is not subject to any central control and operates without any supervision . . . Since there is no supervising or police-like authority which overlooks activity on the Internet, ‘anything goes’ in cyberspace”); see also In Praise of Chaos: Governments’ Attempts to Control the Internet Should be Resisted, Economist, Oct 1, 2011, available at http://www.economist.com/node/21531011 (“For something so central to the modern world, the internet is shambolically governed . . . It is in short a bit chaotic.”).

[17].  Neal Katyal, Community Self-Help, 1 J.L. Econ. & Pol’y 33, 60 (2005).

[18].  Alexander Melnitzky, Defending America Against Chinese Cyber Espionage Through the Use of Active Defenses, 20 Cardozo J. Int’l & Comp. L. 537, 538-40 (2012).

[19].  See generally Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (2006).

Note: Statutory Purpose and Deferring to Agency Interpretations of Laws. The Immigration Law Paradigm: “Aged Out”—Get Deported!

K-2 visa holders are children of alien-fiancé(e)s of United States citizens, who are issued a visa to accompany their parents to the U.S.  An alien parent is issued a K-1 visa to travel to the U.S. to marry his or her U.S. citizen fiancé(e).  Pursuant to one’s marriage to a U.S. citizen, the alien-parent and one’s minor children would become eligible to adjust their status to that of legal permanent residents—i.e., to obtain green cards.  Until June 23, 2011, the Board of Immigration Appeals (“BIA”)—the agency appellate court that reviews judgments of immigration courts—interpreted the meaning of a “child” under 8 U.S.C. section 1101(a)(15)(K)(iii) as an unmarried person under the age of 21 at the time of adjudication of his or her petition to adjust one’s status.  This meant that if such a child turned 21 before the United States Citizenship and Immigration Services (“USCIS”) could review his or her case, one was no longer eligible to adjust status (i.e., “aged out”), and therefore, was subject to deportation.

This interpretation subverted the whole purpose behind the K-visa statute—family unification—and produced controversial, inconsistent, and absurd results.  Thus, when a person was admitted to the U.S. on a K-2 visa, he or she could immediately become ineligible for adjustment because of turning 21 just a few days following one’s admission.  Likewise, two K-2 visa holders, who were the exact same age upon admission to the U.S., could experience opposite outcomes based solely on USCIS’ efficiency in adjudicating their applications.

The doctrine of “Chevron deference” requires reviewing federal courts to defer to agency interpretations of ambiguous provisions of the statutes they administer.  The government has often used Chevron as a defense of its interpretation of the K-visa statute.  This note argues that reviewing courts should consider statutory purpose as part of the Chevron analysis.  In doing so, the note conducts a case study into the problem of “aging out” of K-2 visa beneficiaries.  It argues that, despite the recent favorable resolution of the K-2 “age out” problem by the BIA, this issue should have been resolved by an Article III court, and that the government would have failed the Chevron test.  Additionally, the note identifies another group of people currently struggling with a similar issue.  Finally, the note offers two solutions to produce more logical and coherent results: (1) to always use statutory purpose as part of the Chevron analysis and (2) to employ canons of statutory construction should statutory purpose prove difficult to ascertain.

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Ivan A. Pavlenko: J.D. Candidate, Syracuse University College of Law, 2013; B.A. International Relations, State University of New York at New Paltz, 2009.

Note: Death and Taxes: (Over?)Reaction to Section 1706 of the Tax Reform Act

“If you’re reading this, you’re no doubt asking yourself, ‘[w]hy did this have to happen?’”[1]  Indeed, many people across the country asked this very question after the events that took place on February 18, 2010.  At approximately 9:40 that morning, after setting fire to his home in North Austin, Texas, a man climbed into his Piper Cherokee PA-28 aircraft at Georgetown Municipal Airport.[2]  Just sixteen minutes later, that same plane crashed into an office building at 9430 Research Boulevard—seven miles from the state capitol.[3]  As the building burned and smoke plumed, details began to emerge.  One person missing.[4]  Twelve injured.[5]  The smoldering building housed the local office of the Internal Revenue Service (IRS).[6]  There also surfaced a name: Andrew Joseph Stack III.

In the hours following the crash, those investigating the situation discovered an online posting signed by “Joe Stack.”[7]  It quickly became clear that the events of that day were no accident.  Part suicide note and part manifesto, Stack’s online post railed against God and government, placing primary blame on the latter for devouring his savings and ruining his life.[8]  In particular, Stack cited a specific provision of federal tax law (Section 1706 of the Tax Reform Act of 1986), insisting that it had stripped him of his livelihood.[9]  Stack’s solution?  The closing lines of his online posting not only answered that question, but also offered a disturbing explanation for the events of that day: “[w]ell, Mr. Big Brother IRS man, let’s try something different; take my pound of flesh and sleep well.”[10]  In his final act, Stack had boarded his single-engine plane and targeted the group that he perceived as his greatest maligners: the IRS.

In the days, weeks, and months following February 18, 2010, Stack’s actions produced a wide range of reaction.  While his tactics drew everything from condemnation to commendation in the political realm, one of the more heated debates swirled around Stack’s harsh commentary on Section 1706.[11]  Stack viewed that provision as the origin of his financial woes.[12]  According to his colorful interpretation, Section 1706 declared him “a criminal and non-citizen slave,” stripping him of the freedom to decide how he would make a living.[13]  While most serious commentators provided a more muted framing of the situation than Stack himself, a surprising number of them agreed with Stack’s underlying premise that Section 1706 placed an unfair burden on people in his situation.  Evoking images of a destroyed American dream and stifled technological creativity, critics of the section denounced Stack’s suicidal actions, but agreed with the proposition that “something had to give.”  According to these commentators, the burden Section 1706 placed on a particular group far outweighed any perceived benefits.  In their view, the “discrimination” against individuals in Stack’s position had to end.

Proponents of Section 1706 did not remain silent.  Responding to those criticizing the law as unfair, several commentators defended the necessity of Section 1706; without it, tax avoidance by those similar to Stack would produce huge shortfalls in IRS collections as a result of exploitation.  These advocates of Section 1706 viewed Stack’s opposition to the provision as a concomitant of pure self-interest.  He objected to the law because it prevented him from cheating the tax system.  In this way, supporters perceived Section 1706 as accomplishing its intended goal of foreclosing the attempts of people like Stack to circumvent paying their fair share of taxes.  In short, the section served to prevent unfairness, not engender it.

In this note I will analyze the arguments for and against Section 1706.  First, I will explain the fundamental differences between an independent contractor and an employee, as well as the confusion between the two that required Congress to act.  Next, I will detail the enactment of Section 530 of the Revenue Act of 1978 and its effect on the problem of worker classification, explaining both the immediate aftermath and the long-term implications for workers.  Then, I will discuss the origin of Section 1706, detailing its impact on federal taxation and the technological community.  Finally, I will turn to the heated debate that began in the aftermath of Stack’s violent actions and determine whether, despite his methods, that angry taxpayer had a valid point.  Given the combustible nature of the present national dialogue, it is important to know if people like Andrew Joseph Stack have some method underlying their madness.

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Steven Cunningham: J.D. Candidate, Syracuse University College of Law, 2012; B.A. & M.A., Classical Studies, magna cum laude, Boston University, 2009.



[1]. Suicide note of Andrew Joseph Stack III, N.Y. Times (Feb. 18, 2010), http://graphics8.nytimes.com/packages/pdf/us/20100218-stack-suicide-letter.pdf.

[2]. Michael Brick, Man With Grudge Against Tax System Crashes Plane Into Texas I.R.S. Office, N.Y. Times, Feb. 19, 2010, at A14, available at http://www.nytimes.com/2010/02/19/us/19crash.html.

[3]. Id.

[4]. Michael Brick, For Texas Pilot, Rage Simmered With Few Hints, N.Y. Times, Feb. 20, 2010, at A1, available at http://www.nytimes.com/2010/02/20/us/20crash.html.

[5]. Id.

[6]. Brick, supra note 2.

[7]. Stack, supra note 1.

[8]. See id.

[9]. See id.

[10]. Id.

[11]. One of the more indelicate instances of the political commendation appeared on Facebook.  On that site, Syracuse conservative talk show host Jon Alvarez created a group praising Stack’s “sacrifice.”  Facebook removed the tribute within hours, citing its ban on hateful and threatening posts.  See Christina Boyle, Facebook Pulls Plug on Tax-icide Tribute to Joseph Stack, Pilot Who Crashed Plane into Austin Office, N.Y. Daily News (Feb. 20, 2010), http://articles.nydailynews.com/2010-02-20/news/27056807_1_plane-crash-irs-office-facebook; see also Dave Tobin, Facebook Shuts Down Radio Host’s Homage to Suicide Pilot, The Post-Standard, Feb. 20, 2010, at A3, available at http://www.syracuse.com/news/index.ssf/2010/02/facebook_shuts_down_cny_radio.html.

[12]. See Stack, supra note 1.

[13]. Id.

Note: Nights on the Museum: Should Free Housing Provided to Museum Directors Also be Tax-Free

The Metropolitan Museum of Art is, arguably, one of the great cultural institutions of our time.  Visitors come from all over the world to indulge in its timeless collection spanning five thousand years of art and history.  It carries with its name not only the sound of resonating prestige, but also a mission to “stimulate appreciation for and advance knowledge of works of art that collectively represent the broadest spectrum of human achievement at the highest level of quality, all in the service of the public and in accordance with the highest professional standards.”[1]  To accomplish this mission, it requires that its director reside in a $4 million co-op, across the street from the museum, for free.[2]

Mr. Thomas Campbell, the newest director of the museum, is not the only curator receiving this generous fringe benefit.  This surprising advantage to the promotion of art and culture is also welcomed by the directors of other prestigious New York City museums,[3] including the president of the American Museum of Natural History, and director of the Museum of Modern Art.[4]  These three museums serve not only as homes to priceless works of art, but they also serve to provide their directors with about $15 million worth of “home.”[5]  A combined fair rental value of about $400,000 per year is provided free of charge, and free of tax, by the museums.[6]  This means that each director, in signing his or her employment agreement, accepts the luxurious housing, in addition to a handsome salary, as compensation.  Compensation, as most Americans know, is taxed.  However, for these museum directors, though their cash salary is included on their yearly income tax return, the value of the housing is not.  It apparently does not count as compensation.

In some situations this tax-free arrangement is not surprising.  It may be essential that an employee, such as a hospital worker, be available for twenty-four hour emergency calls.[7]  Parks may also provide housing for their rangers if they are required to be around at all hours of the day and night.[8]  Alternatively, certain jobs require individuals to move to isolated locations, such as a construction worker employed at a project at a remote job site,[9] or a military official called to relocate to a camp.[10]  Each of these situations seems fair, since if the employees were not provided with housing, it would be unlikely that they would be able to properly perform their work.  Does this call for necessity resonate in a museum director’s profession?  Of course, one important function of a museum director is to solicit and charm donors to contribute works of art to the museum.  However, does a museum director’s need for extravagant housing in a metropolitan area parallel a construction worker’s requirements for housing after he relocates to a secluded job site in Alaska?

Perhaps the answer to this question is buried deep within the purposes and policies of our tax code.  Though the government must collect revenues, maybe relief should be given to certain individuals to lighten their load.  This Note will argue that a museum director, or other executive of a cultural institution, does not qualify as one of these burdened taxpayers, and should not be able to exclude from his gross income the value of housing provided for him by his museum employer.  Part I will provide a history of Section 119, the provision of the Internal Revenue Code (the “Code”) that these directors look to for excluding the value of housing from gross income.  This part will include a brief discussion of Section 119’s legislative history and the reasons behind its enactment in 1954.  Next, Part II will illustrate the three “elements” of Section 119, which must all be satisfied to qualify for the exclusion.  This part will include several examples of how regulations, rulings, and judicial decisions have interpreted each element, and the standards that have been applied.  Part III applies these interpretations to a museum director’s treatment of housing, and argues that based on current case law, the value of housing should be included income.  Finally, Part IV concludes that though Section 119 is a necessary provision designed to alleviate the burden on those in unique professions, it does not serve the purposes of the Section to exclude the value of housing from a museum director’s income.

Jane Zhao: Syracuse University College of Law, J.D. 2012.

 


[1]. IRS Form 990, Schedule O for the Metropolitan Museum of Art for 2008, Guidestar.org, http://www.guidestar.org/FinDocuments//2009/131/624/2009-131624086-05bb6c2f-9.pdf (last visited Nov. 9, 2011).  “The Internal Revenue Service (IRS) Form 990 is titled “Return of Organization Exempt From Income Tax.”  Form 990 returns are required to be filed annually by most tax-exempt organizations, except for church and government-affiliated organizations.  Form 990 is “the primary tool for gathering information about tax-exempt organizations, for educating organizations about tax law requirements and ensuring their compliance.  Organizations use it to inform the public about their programs.”  Form 990 Resources and Tools, IRS.gov, http://www.irs.gov/charities/article/0,,id=214479,00.html (last visited Nov. 21, 2011).

[2]. Kevin Flynn & Stephanie Strom, Plum Benefit to Cultural Post: Tax-Free Housing, N.Y. Times, Aug. 9, 2010, at A1, available at http://www.nytimes.com/2010/08/10/arts/design/10homes.html.

[3]. Though this Note will mainly focus on examples of New York City museums, it should be mentioned that museums throughout the nation are inconsistent in whether the housing provided to their director is tax-free.  For example, in 2008, the Art Institute of Chicago, recognized the value of housing provided to its director as gross income.  See IRS Form 990, Schedule J for the Art Institute of Chicago for 2008, GuideStar.org,  http://www.guidestar.org/FinDocuments//2009/362/167/2009-362167725-05ff3178-9.pdf (last visited Nov. 9, 2011).  The Smithsonian, in Washington, D.C., did not provide housing to any employees.  See IRS Form 990, Schedule J for the Smithsonian Institution for 2008, GuideStar.org, http://www.guidestar.org/FinDocuments//2009/530/206/2009-530206027-06634854-9.pdf (last visited Nov. 9, 2011).  The Museum of Fine Arts in Boston and the San Francisco Museum of Modern Art did provide housing to their directors but did not disclose whether such housing was treated as gross income on the directors’ tax returns.  See IRS Form 990, Schedule J for the Museum of Fine Arts for 2008, GuideStar.org, http://www.guidestar.org/FinDocuments/2009/042/103/2009-042103607-05f91c57-9.pdf (last visited Nov. 9, 2011); IRS Form 990, Schedule J for the San Francisco Museum of Modern Art for 2008, GuideStar.org, http://www.guidestar.org/FinDocuments//2009/941/156/2009-941156300-05fc28ad-9.pdf (last visited Nov. 9, 2011).

[4]. Flynn, supra note 2.

[5]. Id.

[6]. Id.

[7]. See 4 C.B. 85, 1921 WL 50340 (1921).

[8]. See Coyner v. Bingler, 344 F.2d 736 (3d Cir. 1965).

[9]. See Treas. Reg. § 1.119-1(f), Example (7) (2010).

[10]. See infra note 28.

Note: Stateside Guantanamo: Breaking the Silence

On December 11, 2006, the Department of Justice quietly began to execute the initial stages of a secret new program, the Communication Management Unit (CMU).[1]  At 7:00 A.M., seventeen federal prisoners from across the country were removed from their cells without warning or explanation.[2]  They were held in isolation for two days and then transferred to the Federal Correction Complex (FCC) in Terre Haute, Indiana.[3]  There, they were notified of their transfer to the CMU—a “completely self-contained unit” designed to severely limit a prisoner’s ability to communicate with the outside world.[4]

Unlike other prisons in the United States, the CMUs have been operating in relative secrecy.[5]  Official comment from the Bureau of Prisons states that the program is part of an ongoing effort to monitor the mail and other communications of “terrorist inmates” within the federal prison system.[6]  The government asserts that CMUs were designed to allow for a concentration of resources in an effort to “greatly enhance the agency’s capabilities for language translation, content analysis and intelligence sharing.”[7]

All forms of communication in the CMU are monitored and severely restricted.[8]  CMU inmates are subjected to twenty-four hour surveillance.[9]  Every word they utter is recorded and remotely monitored by a counter-terrorism team.[10]  Conversation among inmates must be conducted in English, unless otherwise negotiated.[11]  Restrictions on visiting time and phone calls are more severe than in most maximum security prisons.[12]  Although most of the prisoners are not considered high security risks, the units also impose a categorical ban on any physical contact with visitors, including family.[13]

Although the U.S. government contends that the units were created to house terrorist prisoners, many CMU detainees have never been convicted of terrorism related offenses.[14]  Take CMU inmate Sabri Benkahla, who was born in Virginia and graduated from George Mason University.[15]  While studying in Saudi Arabia, he was arrested and charged with aiding the Taliban.[16]  A Virginia court found him not guilty in 2004.[17]  Despite the acquittal, prosecutors forced him to testify before a grand jury, where he was accused and convicted of perjury.[18]  At Benkhali’s sentencing, the presiding judge declared that he was “not a terrorist” and that his chances of “ever committing another crime were ‘infinitesimal.’”[19]  Other CMU inmates include Enaam Arnaort, the founder of the Islamic charity Benevolence International Foundation, and Dr. Rafil Dhafir, a physician and the founder of the Iraqi charity Help the Needy.[20]  Like Benkahla, Dhafir and Arnaout were initially accused of terrorist-related crimes, yet were ultimately imprisoned for far lesser charges.[21]

The CMUs have come under fire from civil rights organizations which argue that the units represent “an unwarranted expansion on the war on terrorism.”[22]  The Federal Bureau of Prisons’ (BOP or “Bureau”) failure to establish meaningful criteria for inmate designation to a CMU coupled with the fact that the units house predominantly Muslim males indicates a strong presumption of racial profiling.[23]  Equally troubling is the secretive manner in which the CMUs were established.  The Administrative Procedures Act (APA) requires that prison regulations be promulgated under the law, yet the Bureau failed to notify the public of any changes to the prison program and did not afford the opportunity for opposition to comment prior to the creation of the CMUs.[24]  Critics have dubbed the facilities a “stateside Guantanamo.”[25]

This Note will argue that the U.S. government’s creation of the CMUs and the current policies under which the prison units operate violate established constitutional and statutory standards.  Part I details the post-9/11 climate from which the CMUs arose.  Part II attempts to expose the clandestine creation of the CMUs, while Part III argues that their establishment represented a marked change in federal policy which failed to comply with the APA.  Part IV maintains that the rules which govern the operation of the CMUs deny inmates due process guarantees of the Fifth Amendment.  Part V addresses the disproportionate percentage of Muslims housed in CMUs.  Finally, Part VI offers recommendations aimed at resolving the CMU regime’s current inadequacies.

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Luke Beata: J.D. Candidate, Syracuse University College of Law, 2012; B.A. International Relations and Economics, Boston University, 2002.



[1]. Katherine Hughes, Dr. Rafil A. Dhafir at Terre Haute Prison’s New Communications Management Unit, Wash. Rep. of Middle East Affairs, 12-13 (May-June 2007), available at http://www.wrmea.com/component/content/article/310-2007-may-june/9186-dr-rafil-a-dhafir-at-terre-haute-prisons-new-communications-management-unit-.html.

[2]. Id.; Nick Meyer, Local former U.S. Navy man locked in isolation unit “without explanation, The Arab Am. News (Jan. 15, 2011, 2:22 AM), http://www.arabamericannews.com/news/index.php?mod=article&cat=

Community&article=3823.

[3]. Hughes, supra note 1.

[4]. Id.

[5]. See id.; see also Basil Katz, Special U.S. prisons unconstitutional: lawsuit, Reuters (Mar. 30, 2010), http://www.reuters.com/article/2010/03/31/us-usa-prisons-rights-lawsuit-idUSN3014363320100331.

[6]. Communication Management Units, 75 Fed. Reg. 17,324, 17,324-26 (Apr. 6, 2010) (to be codified at 28 C.F.R. pt. 540).

[7]. Dan Eggen, Facility Holding Terrorist Inmates Limits Communication, Wash. Post, Feb. 25, 2007, at A7, available at http://www.washingtonpost.com/wp-dyn/content/article/2007/02/24/AR2007022401231.html.

[8]. See id.

[9]. Carrie Johnson & Margot Williams, Guantanamo North: Inside Secretive U.S. Prisons, Nat’l Pub. Radio (NPR) (Mar. 3, 2011), http://www.npr.org/2011/03/03/134168714/guantanamo-north-inside-u-s-secretive-prisons.

[10]. Id.

[11]. Eggen, supra note 7.

[12]. Johnson, supra note 9.

[13]. Hughes, supra note 1; Meyer, supra note 2.

[14]. Meyer, supra note 2.

[15]. Benkahla v. Federal Bureau of Prisons, et al., Am. Civ. Liberties Union (ACLU) (June 2, 2010), http://www.aclu.org/prisoners-rights/benkahla-v-federal-bureau-prisons-et-al.

[16]. Id.

[17]. Id.

[18]. Id.  Notably, the statements which he allegedly had misrepresented were related to the underlying offense of his earlier arrest of which he was acquitted.  Id.

[19]. Benkahla v. Federal Bureau of Prisons, et al., supra note 15.

[20]. Karen Friedemann, The CMU Black Hole, The Muslim Observer (Aug. 6, 2009), http://muslimmedianetwork.com/mmn/?p=4426.

[21]. Id.

[22]. Dean Kuipers, Isolation Prisons Under Fire, An ACLU Lawsuit will Challenge the Transfer of an Inmate to a Facility that Drastically Limits Outside Contact, L.A.Times (June 18, 2009), http://articles.latimes.com/2009/jun/18/nation/na-terror18.

[23]. Eggen, supra note 7.

[24]. Hughes, supra note 1; see also Katz, supra note 5.

[25]. Katz, supra note 5.

Note: It’s Not Popular but it Sure is Right: The (In)admissibility of Statements Made Pursuant to Sexual Offender Treatment Programs

Sex offenders are not a sympathetic bunch.  Throughout American history, society has imposed on sexual offenders a variety of punishments, from incarceration[1] to castration.[2]  In recent years, in response to public pressure following several heinous and highly publicized sexual crimes against children, the punishments imposed upon sexual offenders have increased.[3]  Many jurisdictions have enacted laws allowing for the indefinite civil confinement of sexual offenders, while others offer surgical castration or require offenders to submit to polygraph[4] or penile plethysmograph tests.[5]  Furthermore, both the federal government and many states offer or mandate sexual offender treatment programs which may employ some of the above-mentioned methods of punishment, often with the ultimate goal of rehabilitating the offender.

In deciding the appropriate and just punishment for sexual offenders, society and its elected representatives have struggled to reconcile the tension between the very real threat sexual offenders pose to America and its children, and upholding the basic rights afforded all criminal defendants under the Constitution.  While recent conversations surrounding the rights of individuals convicted of sexual offenses have focused on civil confinement,[6] this is not the only punishment practice that implicates the constitutional rights of sexual offenders.  The rights of such offenders are also affected by what are commonly known as “sex offender treatment programs” (SOTPs).  These programs, administered by the government, are voluntary at the federal level, and may be voluntary or mandatory at the state level.  The majority of SOTPs employ a cognitive behavior therapy model and commonly require participants to admit to all past sexual offenses—charged or uncharged, convicted or not convicted—in order to successfully complete the program.

To this end, the programs are laudable.  Based on scientific research showing the efficacy of cognitive-based therapy where the patient takes responsibility for his own wrongdoing, the required admissions to past sexual offenses seem a logical, and indeed necessary, component of rehabilitation.  However, the programs are also problematic, implicating participants’ constitutional rights because statements made during the course of SOTPs can be used as propensity or character evidence in a pending prosecution for a sexual offense, or as the basis for new charges in a subsequent prosecution.

Take John Doe for example.[7]  He was arrested for a sexual molestation offense for the first time in 1982.  In the years that followed, Doe was in and out of prison for a variety of sexual offenses.  Following his last stint in federal prison on child pornography charges, Doe was ordered to participate in a SOTP as a condition of supervised release.  The SOTP required Doe to author an autobiography detailing all sexual abuse that he had suffered and all that he had perpetrated.  Doe did so, providing a detailed written account of each of his victims over the past three decades.  Shortly thereafter, Doe was released from prison.  A few months later, Doe violated the terms of his supervised release by distributing child pornography via the internet.  When police searched Doe’s house, they found a copy of the autobiography and other materials Doe wrote in the course of the SOTP.

At trial, the government seeks to introduce Doe’s autobiography and the other written statements to show his propensity to commit sexual offenses.  The government is also considering bringing charges against Doe for the crimes he admitted tobut for which he was never charged.  At trial, the jury will hear about every single incident of sexual misconduct Doe has ever engaged in because they will have full access to Doe’s private writings—the very writings that the government told him he must produce as a term of his supervised release.

This paper will explore the admissibility of such statements against individuals like Doe who make statements detailing prior sexual offenses, charged or uncharged, in the course of their participation in a government-run SOTP.  Part I will provide a brief overview of federal and state SOTPs and discuss the judicial proceedings in which such statements might be admitted.  Part II will explore the admissibility of SOTP statements under the Federal Rules of Evidence (FRE) and the constitutionality of such under the Fifth Amendment.  Finally, Part III will argue that notwithstanding the evidentiary and constitutional bases for admitting these statements, there are alternative and more compelling evidentiary, constitutional, and policy arguments for not admitting them.  First, many of these statements should be protected from compelled disclosure by the therapist-patient privilege.  Second, the probative value of such statements does not outweigh the prejudicial effect, and thus the statements should be deemed inadmissible under FRE 403.  Finally, such statements violate the Sixth Amendment right to counsel and should be excluded where a defendant is not advised by counsel of the risk of being compelled to make such statements at the time he accepts a guilty plea requiring participation in a SOTP, or where a defendant is sentenced to participate in such a program as part of sentencing, supervised release, or parole.

Ultimately, I argue that it is simply good social policy to exclude statements made during the course of SOTPs. Failure to do so may deter individuals from participating in SOTPs in the first place and prevent offenders from receiving treatment that is critical to decreasing recidivism and to protecting America’s children from sexual crimes.  The solution, I conclude, is to offer a limited “use immunity”[8] to SOTP participants, prohibiting such statements from being used in a search warrant application or as the basis for a subsequent prosecution for crimes admitted to in the statements.

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Meghan Gilligan: J.D. Candidate, Syracuse University College of Law, 2012; B.A. English and Political Science, magna cum laude, University of Rochester.



[1]. Facts About Adult Sex Offenders, Association for the Treatment of Sexual Abusers, http://www.atsa.com/facts-about-adult-sex-offenders (last visited Oct. 11, 2011).

[2]. See Anti-Androgen Therapy and Surgical Castration, Association for the Treatment of Sexual Abusers, http://www.atsa.com/anti-androgen-therapy-and-surgical-castration (last visited Oct. 22, 2011).

[3]. Jean Peters-Baker, Challenging Traditional Notions of Managing Sex Offenders: Prognosis is Lifetime Management, 66 UMKC L. Rev. 629, 631 (1998).

[4]. See id. at 662 (noting that “[t]he polygraph is one method of measuring a sex offender’s level of risk to the community in a laboratory setting” and is frequently used “to determine the offender’s normal and deviant sexual histories”); see also Mary West et al., Offender Treatment Programs, August 2000: 50 State Survey, Colo. Dep’t of Corrections 20 (Aug. 2000), http://cospl.coalliance.org/fez/eserv/co:3038/cr11002t712000internet.pdf.  Thirteen states reported using polygraph tests to assess sex offenders’ progress in treatment programs, including Colorado, Hawaii, Indiana, Iowa, Kansas, Massachusetts, Minnesota, New Hampshire, Tennessee, Texas, Vermont, Virginia, and Wisconsin.  Id.  Other states stated an intent to implement the use of polygraphs in the near future, and several more reported the discretionary use of polygraphs, or the use of polygraphs in post-release supervision.  Id.

[5]. See Peters-Baker, supra note 4, at 663 (explaining that penile plethysmographs are devices used to measure the response of an individual’s penis to audio or visual stimuli); see also Fed. Bureau of Prisons, Sex Offender Treatment Program (2002), available at http://law.wustl.edu/Library/CDROMS/ABAUSG/pdf/sexu2.pdf (“[a]ll participants will undergo plethysmograph and polygraph examination”).

[6]. See generally, e.g., United States v. Comstock, 130 S. Ct. 1949 (2010).

[7]. “John Doe” is not based on a real individual but is instead exemplary, used to illustrate a plausible scenario based on existing SOTP practices and case law concerning prosecutions for sexual offenses.

[8]. Dissenting in McKune v. Lile, Justice John Paul Stevens coined the term “use immunity” with regard to statements made pursuant to a SOTP.  536 U.S. 24, 70 (Stevens, J., dissenting).

Note: Green Technology: An Alternative Path to Accelerated Patent Examination

In the last quarter century, a particular problem facing humanity has become increasingly clear to innovators around the world: the consumption of immense quantities of natural resources of limited and shrinking availability.  Whether it is water, crude oil, natural gas, or trees, at some point, without finding sustainable solutions to overconsumption, we will exhaust the natural resources available on this planet.  As a leader in modern technology, our country should take a greater interest in the development of solutions to this crisis in the form of green technology that can be used to slow resource consumption.

The United States Patent and Trademark Office (PTO) can have an impact on the environmental crisis by adopting patent reform to specifically encourage innovators to develop and bring to market novel inventions in the green technology field.  The PTO has made an effort to encourage the development of environmental technology through the Green Technology Pilot Program (“Pilot Program”), designed to expedite the patent process for environmentally valuable technologies.1  This program will be analyzed in detail throughout this note and its foundation will form the basis for the reforms and initiatives suggested herein.

In addition to the Pilot Program, there are supplementary means by which the patent process for valuable green technology can be utilized to stimulate innovation.  By partnering with the Environmental Protection Agency (EPA), the PTO will be able to offer an effective alternative system to accelerate the patent process for environmentally beneficial technology.  This alliance would essentially weed out innovations that are insufficiently important to the environment, thereby ensuring that the PTO’s increased effort to expedite the patent process is not wasted.  In addition, such a joint initiative could uncover technologies that may have unforeseen environmental value and encourage their development with incentives in the patent office.

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Jay Hickey: Syracuse College of Law, J.D. 2012; State University of New York at Albany, B.S. in Biology 2009.  Thank you to Professor Lisa Dolak for going beyond the call of duty by sacrificing her time for the benefit of her students, and to the members of the Syracuse Law Review for the hard work that went into the editing process.  A special thanks to my mother and father and to all of my family and friends who have been invaluable throughout my academic career.

  1. See Pilot Program for Green Technologies Including Greenhouse Gas Reduction, 74 Fed. Reg. 64,666 (Dec. 8, 2009). []

Note: Let my People Go Fishing: Applying the Law of “Givings” to Private Fishing Preserves, Exclusive Fishing Rights, and State-Stocked Rivers

Most fishermen are probably not thinking about the law on a normal day on the water.  But perhaps they should if they are one of the anglers paying a fee to fish the private waters of the Douglaston Salmon Run (DSR) or Harmel’s Ranch Resort (“Harmel’s”), private fishing preserves where anglers pay an access fee to enjoy exclusive fishing rights on some of the nation’s most productive waters.  While all may be well for the paying angler seeking the idyllic—high populations of fish, low populations of people—a novel legal problem may be lurking in the deep.  And it is simply this: by charging anglers for exclusive fishing rights these private landowners receive a pecuniary gain from exploiting a public resource—fish.  The private landowner receives a substantial benefit from a public resource because the fish are raised and stocked by the state at the public’s expense.  Framing this issue in terms of equity and fairness, this Note applies the property concept of “givings,” the converse of takings, to suggest that this legal problem can be solved if such a landowner reimburses the state for the impermissible use and distribution of government property.

Part I of this Note frames the issue by providing two real-world examples of compensable givings.  Part II provides relevant background information and a discussion of the concept of givings and how it may be analyzed.  Part III examines and applies the givings framework to the factual scenarios set forth in the Introduction.  Finally, this Note concludes by suggesting that, in certain situations, a private fishing preserve that charges the public to fish for a state resource must compensate the state.

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Nathaniel H. Amendola: J.D. Candidate, Syracuse University College of Law, 2012; B.A., cum laude, St. Lawrence University, 2005; passionate fly fisherman. I would like to thank the biggest catch of my life, my future wife and current Syracuse Law Review Editor-in-Chief, Amanda Orcutt. I owe a debt of gratitude to my family, Professor Terry Turnipseed, and to my fishing mentors Lynn and Jeff Heyer of Cross Rip Outfitters.