Volume 43, Issue 2 (Spring 2025)

A New Johnson Amendment: Subsidy, Core Political Speech, and Tax-Exempt Organizations

Volume 43, Issue 2 (Spring 2025)

By Samuel D. Brunson*

Seven decades ago, Congress enacted the so-called Johnson Amendment. This provision of tax law forbids tax-exempt public charities from endorsing or opposing candidates for office. Under the plain language of the Internal Revenue Code, an organization that violates the Johnson Amendment does not qualify as tax-exempt.

The legislative history underlying the Johnson Amendment is sparse, and it provides few clues as to Congress’s reason for enacting it. In the ensuing years, though, it has become clear that Congress does not want to subsidize campaigning activities, and this has become the most convincing justification for the Johnson Amendment. However, the design of the current Johnson Amendment goes further than merely refusing to subsidize—it entirely prevents public charities from engaging in campaigning speech.

Bankruptcy and the Public-Private Divide

Volume 43, Issue 2 (Spring 2025)

By Laura N. Coordes*

The Bankruptcy Code draws a firm line between “municipalities” and other entities. In reality, numerous entities exist that could be categorized somewhere between a purely public municipality and a private entity. This incongruence between theory and practice creates two primary sets of problems. First, when a “blended entity” seeks to file for bankruptcy, the relief it receives from the bankruptcy system, if any, may be practically inappropriate or constitutionally suspect. Second, blended entities’ use of the bankruptcy system creates uncertainty, which parties and courts can capitalize on to exploit gaps in the law.

Banning Contractual Performance Discrimination

Volume 43, Issue 2 (Spring 2025)

By Meirav Furth-Matzkin*

Recent evidence reveals a critical but often overlooked form of discrimination within consumer markets: “discrimination in contractual performance.” This phenomenon occurs when sellers use discretionary authority in ways that disproportionately disadvantage certain consumers, including those belonging to racial or ethnic minorities or lower socioeconomic classes. Presumably, sellers intend to standardize transactions and limit discretionary decisions by using form contracts.

Revenge Porn and Antidiscrimination Law: A Traditional Solution for the Modern Age

Volume 43, Issue 2 (Spring 2025)

By Scott Lowder*

This Note examines the phenomenon of nonconsensual pornography, or “revenge porn,” and proposes a novel approach to addressing its consequences. Existing laws and discussions on revenge porn have focused too heavily on punishment and deterrence. As technological advances make it even more difficult to hold perpetrators criminally and civilly liable, lawmakers and advocates should focus on providing victims with the strongest tools to combat the aftereffects of revenge porn.

While Title VII may provide an existing remedy for some victims that have suffered employment discrimination, the growing challenges surrounding revenge porn call for new and more comprehensive legislation. Specifically, federal and state law should define victims of revenge porn as an explicit class for purposes of antidiscrimination law. This Note proposes, using the Equality Act as a model, that antidiscrimination law can provide a new tool alongside existing remedies to protect and support these victims.

Shattering the Silence: How Secrecy Hides Sexual Misconduct in Federal Workplaces

Volume 43, Issue 2 (Spring 2025)

By Eli Scher-Zagier*

Millions of federal employees face restrictions that silence their speech about workplace sexual misconduct, all in the name of national security. Information controls, non-disclosure agreements (“NDAs”), and physical workspaces create an architecture of secrecy that is concealing sexual misconduct in the federal government, hindering effective responses, harming national security, and exposing employees to coercion by foreign governments and criminals.

Drawing on court filings, government documents, and interviews with federal employees, this Note sheds new light on these silencing mechanisms. As the federal workforce is remade into a national security workforce, these mechanisms are spreading throughout the government and creating barriers to sexual misconduct accountability.

Improving Language Access and Language Justice: All-Spanish Administrative Hearings in Washington State

Volume 43, Issue 2 (Spring 2025)

By Donald N. Dowie,* Marek E. Falk** & Domingo G. Alvarez***

Individuals with limited English proficiency need accommodations to have access to justice in legal proceedings. Interpreters can sometimes bridge the gap in understanding. However, interpretation often has drawbacks, particularly with Spanish. These drawbacks can result in a less accurate record and create mistrust of the system among participants. For these reasons, the Washington State Office of Administrative Hearings holds certain hearings entirely in Spanish, without interpreters.

This Feature discusses why this program is important and details its progression from the pilot phase to operational status. Also discussed are the essential elements that made the program a success and policy considerations relevant to establishing such a program. The authors hope this information will help other jurisdictions initiate similar programs, to provide increased access to justice through an equitable hearing process with fewer barriers.

Duress, Coercion, and Intimidation on the Highway: A Call to Ban Roadside Waivers in Civil Forfeiture

Volume 43, Issue 2 (Spring 2025)

By Louis S. Rulli*

Civil forfeiture is widely criticized for incentivizing law enforcement to forfeit property from law-abiding owners for agency profit. This Feature examines a nefarious and underdiscussed police tactic—roadside waivers—that is used to obtain consent from motorists during highway traffic stops to permanently seize their cash and waive all hearing rights to challenge the forfeiture of their property.