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Vol 47. No. 2 Winter 2023

ARTICLES

The Unacknowledged Realities of Extraterritorial Taxation

Laura Snyder................................................................................ 243

The U.S. extraterritorial tax system has evolved such that today it is more consequential than one century ago. The system, conceived in the stigmatization of overseas Americans, consists of highly penalizing taxation and banking policies that make it difficult for overseas Americans to live normally. The IRS is also a victim: it is unable to administer the system.


Many have sought to educate policymakers and the public. Detailed survey reports have been issued, documenting how overseas Americans experience the system. Research articles have been published, exposing certain problems of the system and, in some cases, proposing solutions.
To date, such efforts have failed to effect change. This is for several reasons: the continued stigmatization of overseas Americans, the high complexity of the system and misunderstandings about it, and the lack of political influence.


The academic press is replete with theories about why overseas Americans should be subject to worldwide taxation by the United States. For change to occur, it is important that the academic press looks beyond those theories to acknowledge the full import, complexities, and consequences of the system in place today.

Johnson V. M’intosh: 200 Years of Racism That Runs With the Land

Sheila Simon ............................................................................................ 311

The United States Supreme Court case of Johnson v. M’Intosh is a foundation of property law in the United States. It established the United States government as the only possible buyer of land from people native to the continent. As the only possible buyer, the United States government had the power to negotiate a low purchase price. The bargain basement purchases are at the root of title for most of the property in the western half of the country. The case also forms an early and critical component of many property law textbooks. The case can be used to introduce the idea of acquisition by discovery and the idea that land ownership and the right to sell land can be limited. Sadly, the case is also a perfect introduction to how racism is fundamental to the law of the United States. The decision rests, at least in part, on “facts” that Christian Europeans considered themselves “superior genius” to the “fierce savage, whose occupation was war, and whose subsistence was drawn chiefly from the forest.”


This article will first examine the land in the case and establish that, despite assertions to the contrary, the land claimed by the two parties to the case was overlapping. Next, the article will outline the rather shady path of the case up to the Supreme Court. Then, the article will examine the decision, what important facts were missed, and the impact of the decision in the United States and beyond our borders. Finally, the article proposes actions that we, particularly those of us who live and work in the disputed territory, may take based on our more complete understanding of the case. 

 

NOTES 

 

Chapter 9’s Constitutional Timebomb or: How I Learned To Stop Worrying And Love the Uniformity Requirement 

Connor Fitch....................................................................................................... 353

What happens when unresolvable public debt meets an unmovable political stalemate? Without Congressional action, some U.S. municipalities may find out. Currently, a financially insolvent municipality has only one option for bankruptcy protections: Chapter 9. Under federal law, this singular option is only available if the distressed municipality is “expressly” authorized to file a Chapter 9 bankruptcy petition by their respective state. This requirement is not purely the product of Congressional policymaking, but rather the result of the Supreme Court’s interpretation of the U.S. Constitution’s federalism restrictions. The many states have offered their authorizations in a myriad of ways, with differing standards and requirements depending on the geographic location of the distressed municipality. This status quo has alleviated federalism concerns regarding the issue of municipal bankruptcy, but it has also created a competing constitutional issue involving the uniformity requirement. This requirement stems from the Constitution’s Bankruptcy Clause, which requires that federal bankruptcy laws be uniform throughout the United States. Are the federal bankruptcy laws truly uniform if a municipality in one state is denied the same opportunity to seek bankruptcy protections as a municipality in another state? Allowing states the discretion to grant or prohibit their subdivisions from filing Chapter 9 protections inevitably reduces the uniformity of federal bankruptcy laws. Likewise, any federal law that reduces a state’s ability to control its own subdivisions implicates the Constitution’s federalism restrictions. The key to resolving this constitutional tension is to balance a state’s right to exert control over the financial dealings of its own political subdivisions, while ensuring that similarly situated municipal debtors will be treated equally under the law, regardless of their geographic location. This Note proposes a system where a subdivision will be considered implicitly authorized to petition for Chapter 9 bankruptcy if its respective state has granted it a certain degree of fiscal autonomy. Under this system a state can categorically eliminate a municipality’s ability to seek Chapter 9 protections only if it fails to grant the municipality the kind of self-determinative authority that would allow for insolvency without prior state approval in the first place. This Note refers to this system as the “Bridgeport” standard, based on a set of criteria used by a federal court during Bridgeport, Connecticut’s Chapter 9 bankruptcy proceeding in 1991.

Making Cents of Child Support Calculations: A Guide for the Midwest 

Kenzie R. Mooty ............................................................................................... 383

In 2017, Illinois switched from using a straight percentage formula when calculating monthly child support obligations to using a version of the “income shares” calculation. Under the income shares model, if a parent has their child for at least 40% of the overnights per year, their monthly child support obligation can be drastically reduced. This can lead to situations where parents fight for more time with their children simply because they want to have lower child support payments. With a variety of different child support calculation methods throughout the Midwest, Illinois should modify its current method to prevent children from being further caught in the middle of their parents’ disputes. This note analyzes the methods used throughout the Midwest, Delaware, and Washington, D.C. As a result, this note concludes that the hybrid formula, similar to one used in Washington, D.C. with some additional improvements, is the best option to handle the unique situations of families enduring a divorce while avoiding unnecessary and excessive involvement of children in ongoing disputes. 

Smells like Money: A Proposal to Re-Examine the Illinois Right-To-Farm Act

Callah Wright ............................................................................................... 411

Since 1973, every state has passed a Right-to-Farm Act (“RTFA”). These Acts are in place to (1) strengthen the legal position of farmers when neighbors take legal action for private nuisance; and (2) to protect farmers from local and state ordinances that restrict agriculture production. This Note argues that Illinois’ RTFA should be amended as the statute lacks clarity on many aspects and consistency throughout the state’s circuit courts. Further, the statute is silent on many issues that other states have included in their Acts, such as zoning, damage caps, a statute of limitations, and management requirements. Three states––North Carolina, Florida, and Indiana––have recently made major changes to their Right- to- Farm Acts; some changes have proven helpful to farmers, while other changes are cause for concern as they may interfere with the rights of rural families to live on and enjoy their property. Illinois can use the experience of these three states to formulate an amendment to its own RTFA that fulfills the law’s intended purpose. This Note concludes that Illinois benefits significantly from agriculture, and thus this proposal should be seriously considered by lawmakers, attorneys, and judges applying the state’s RTFA.