volume ii issue i xulr

XAVIER UNDERGRADUATE LAW REVIEW

THE XAVIER UNDERGRADUATE LAW REVIEW

VOLUME II - ISSUE I – Fall 2014

Featured Guest Article:

The Upside of the Lid Blowing Off:

How One Letter Changed the Landscape of Campus Sexual Violence

By: Kate Lawson


VOLUME II · ISSUE I · Fall 2014 1



THE XAVIER UNDERGRADUATE LAW REVIEW

VOLUME I - ISSUE II – Spring 2014

EDITOR-IN-CHIEF

Robert Park

EXECUTIVE EDITORS

Annie Szendrey

Toyan Harper Jr.

Juan Martir

Mark Anliker

EDITORS

Rachel Mosqueda

Christian Foisy

Daniel Celani



MISSION STATEMENT

The Xavier Undergraduate Law Review was established to provide a platform for scholarly

discussion pertaining to the legal field and public policy. XULR allows all students, regardless of

background, an opportunity to present their argument on historical and current issues of legal and

social interest in a civil and equal manner. In the Jesuit spirit, the Review will publish and share

exceptional student work that will help inspire “men and women for others”. To accomplish this,

it is imperative we:

i) Provide resources and guidance for all undergraduate students, Xavier or non-Xavier students,

who wish to express their views in a scholarly outlet that will educate the community.

ii) Be a positive organization that works through collaboration, not competition. The editorial

process will help all students realize their ideas in writing to the fullest extent.

iii) Encourage submissions of any scholarly work that pertains to the legal field or public policy.

There are a plethora of subjects that pertain to the legal field such as economics, history,

medicine, political science, etc. that provide succinct scholarly debate.

iv) Uphold the spirit of Xavier University, “Men and Women for Others.”

SUBMISSIONS

Submissions of any articles to the Xavier Undergraduate Law Review must be:

i) Original

ii) Scholarly

iii) Included with a title and author biography (including name and college)

For any inquiries, visit our website at: www.xulr.org and check out the submission form for

questions, requests, or submissions at: www.xulr.org/submit.html

http://www.xulr.org/

http://www.xulr.org/submit.html



EDITOR’S NOTE

Dear Reader,

After a successful inaugural year of the Xavier Undergraduate Law Review (XULR), the XULR

has reviewed and read submissions from college students from different institutions around the

country. The editorial board has decided to publish four outstanding collegiate articles and a

guest article by Kate Lawson, Xavier University’s Title IX Coordinator.

This issue begins with Deniz Irgi’s article, Wrongfully Accused: Who Gets the Blame for

government gridlock and why it is a problem.” The article seeks out how impactful government

job performance ratings have on attitudes towards the Constitution, seeing if Americans do or do

not perceive government dysfunction as a constitutional problem.

In Legitimacy or Democracy? On Rawl’s Legal Theory, Elliot Mamet expands upon a genuine

point of conflict between John Rawls and Jürgen Habermas, which is the role that democratic

public norm determination plays in providing legitimacy for the modern state and its laws.

In his paper, Bitcoin and Tax Evasion, James Bax addresses Bitcoin and the need for regulation

in order to encourage widespread adoption of the currency.

The last collegiate article, An Analysis of Recalls and Safety Issues in the Automotive Industry,

Shawn Gannon highlights recalls and safety issues in the automotive industry in light of recent

legal suits against automotive powerhouses like General Motors and Toyota.

The guest article by Kate Lawson, The Upside of the Lid Blowing Off: How One Letter Changed

the Landscape of Campus Sexual Violence, expands upon the “Dear Colleague Letter” and how

it affected Universities around the country.

The third issue of the Xavier Undergraduate Law Review has been a rewarding and enriching

experience for the editorial board and we hope you enjoy reading the selected articles. 1

Sincerely,

Robert Park

Editor-in-Chief

1 There were two changes to the Spring 2014 Xavier Undergraduate Law Review issue to make note of. The first change was the removal of Mr. Habib Olapade’s article, Legal Hypocrisy and Extravagant Political Theatre. This was due to the risk of double publication in the University of Washington’s Undergraduate Law Journal. The second change was the addition of a missing reference in Daniel Wright’s article, Free Speech and Hate Crimes.



TABLE OF CONTENTS:

Student Articles:

I. Wrongfully Accused: Who Gets the Blame for government gridlock and why it is a

problem

Deniz Irgi …………………………………………………………………………….7

II. Legitimacy or Democracy? On Rawl’s Legal Theory

Elliot Mamet………………………………………………………………………....21

III. Bitcoin and Tax Evasion

James A. Bax III………………………………...………………………...…………30

IV. An Analysis of Recalls and Safety Issues in the Automotive Industry

Shawn Gannon……………………………………………………………………….42

Featured Guest Article

The Upside of the Lid Blowing Off: How One Letter Changed the Landscape of

Campus Sexual Violence

Kate Lawson …….…………………………….…………………………………….54



STUDENT ARTICLES



WRONGFULLY ACCUSED: WHO GETS THE BLAME FOR GOVERNMENT

GRIDLOCK AND WHY IT IS A PROBLEM

Deniz Irgi

University of Washington

ABSTRACT

If there is one point of consensus in this era of dysfunctional government, it is the United States

Constitution. However, some scholars argue that constitutional reform is necessary to improve

how government works. But any reform is not likely to succeed without broad public support.

The question is whether the American public similarly perceives the problem of government

dysfunction as a constitutional one. I set out to test what, if any, impact government job

performance ratings have on attitudes towards the Constitution. I model public attitudes towards

the Constitution based on government job performance ratings from responses to a Time

Magazine survey from 2011. I find that people who are more dissatisfied with the government’s

handling of its job are neither more nor less likely to support constitutional reform. This suggests

that Americans do not perceive government dysfunction as a constitutional problem.



INTRODUCTION

The 111th Congress passed universal healthcare reform, financial reform, a bailout of the automobile

industry, and even a repeal of “Don’t ask, don’t tell” in under two years. The 112th Congress spent more

time avoiding a government shutdown, a debt limit crisis, and the “fiscal cliff” than passing laws. This

was part of a broader problem of legislative gridlock. How did Congress go from passing landmark pieces

of legislation to barely performing its basic function of making laws?

The popular explanation blames party polarization after political realignment in the 1970s. The argument

points to the fact that Democrats had majorities in both chambers of the 111th

Congress, which allowed

them to push through these reforms in a short period of time. After the midterm elections, Democrats lost

the House and the seats required to override a filibuster in the Senate. In a post-realignment political

environment, divided government has become dysfunctional government.

Some scholars argue that in this era of party polarization, the institutions established by the Constitution

are not working. The 112th Congress is a case in point. They argue that institutional reform is necessary to

fix the problems created by realignment. However, this means going through the difficult process of

amending the Constitution. If any proposal is to survive the amendment process, it will require broad

consensus from American public. Legislators are not likely to support a proposal without strong public

support. It remains to be seen, however, if the public perceives the problem as a constitutional one?

If these proposals have a chance, the public must support reform during times of government dysfunction.

But it could be the case that Americans do not place blame with the Constitution. There is a theoretical

argument to be made that Americans simply support the Founding document regardless of how they think

government is performing. I will test the relationship between how the public thinks the government is

performing and what impact, if any, this has on attitudes towards the Constitution.



First, I will examine some reforms critical scholars argue are necessary to improve how government

works. Then, I will explain why the American public might see things differently, drawing from the

literature on the doctrine of infallibility. To see where the public stands, I model responses to a public

opinion survey in 2011 on how well the Constitution has held up based on responses to government job

performance ratings. I find that what the American public thinks about how government is performing has

no impact on attitudes towards the Constitution. Simply put, the public sees things differently from

critical scholars.

THEORETICAL BACKGROUND

To test the relationship between public opinion of government job performance and attitudes towards the

Constitution, I use a national survey from June 2011 (Brohinsky and Schulman 2011). This was

conducted at a time when the 112th

Congress averted a partial government shutdown at the last minute. As

expected, the survey found that Americans disapproved of Congress and the President. Across each

branch of government, public opinion was below the historical average. The study also found that 64

percent of Americans believed that the Constitution has “held up well.”

Table 1: Public Approval of U.S. Government as a Percentage

Branch of Government Time Survey (2011) Gallup Average*

Congress 17 33

President 46 53

Supreme Court 57 61

*Gallup average for Congress covers 1974-2014, the President 1938-2014, and the Supreme Court 2001-

2013 (See bibliography)

Yet there are certain scholars who attribute government dysfunction to the institutions created by the

Constitution. Some have proposed moderate reforms to the current framework. One such proposal deals

with the U.S. Senate. The argument goes that equal representation in the Senate creates a source of



paralysis in Congress, because less populated states today are more overrepresented than ever before. In

effect, this gives a small number of people a veto on nationally popular legislation (Levinson 2008). Other

scholars have proposed more radical reforms. One such idea proposes to solve the problems created by

party polarization by electing the President, Senate, and House under a single party (Hasen 2013). In any

case, if such reforms have a chance, the public must agree with the diagnosis: the Constitution is the

problem.

However, it could be the case that the public sees things differently. There is an argument to be made that

Americans simply support the Constitution regardless of how they think government is performing. This

means that public opinion of government job performance would have no impact on attitudes towards the

Constitution. This position can be explained by drawing from the literature on the doctrine of infallibility.

The argument is that the polity reveres certain institutions to such an extent that they “can do no wrong.”

Walter Bagehot first articulated the “doctrine of royal infallibility” in his sentinel book The English

Constitution. He argues that some institutions have certain qualities that “excite and preserve the

reverence of the population” to such a degree that the public perceives them as infallible (Bagehot 2001).

He describes these qualities as elements that evoke “religious feeling, or something else that is sacred”

(Bagehot 2001). For example, Bagehot argues that theatrical elements that appeal to the “senses, which

claim to be embodiments of the greatest human ideas” are likely to “excite the easiest reverence”

(Magliocca 2012). Lon Fuller’s study of “legal fictions” in U.S. jurisprudence speaks to this argument. In

a similar vein, he argues that certain institutions satisfy a fundamental want of stability and certainty,

which similarly reifies them as sacred (Fuller 1967).

American legal scholar Gerard Magliocca applies Bagehot’s doctrine of infallibility to the U.S.

Constitution. He argues that in the U.S., the Founding document qualifies as an institution that “preserves

the reverence of the population” (Magliocca 2012). He points out that the Constitution contains certain



theatrical elements that appeal to great human ideas:

We the People of the United States, in Order to form a more perfect Union, establish Justice,

insure domestic Tranquility, provide for the common defence, promote general Welfare, and

secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this

Constitution for the United States of America (US Const Preamble).

The language and the values the document stands for excite a sacred feeling among the American public.

Further, throughout U.S. history, it has remained a constant. As such, it meets Fuller’s description of an

institution that satisfies a fundamental want of stability. I contend there is a strong case to be made that

Americans are more likely to support the Constitution than blame it for government dysfunction.

Whether or not the American public perceives the problem as a constitutional one is indicated by what, if

any, impact poor government job performance ratings have on attitudes towards the Constitution. Is it the

case that during times of low government approval Americans are more likely to support reform? Or is it

that Americans are likely to support the Constitution regardless of government job performance?

HYPOTHESES

If the American public similarly perceives dysfunction as a constitutional problem, then given the low

government approval ratings in the survey, it is expected that the public will be more likely to favor

constitutional reform. This means that low approval will have a negative impact on attitudes towards the

Constitution.

Hypothesis: Low levels of government approval will have a negative effect on public attitudes towards

the Constitution.



However, there is reason to think that the American public will support the Constitution despite low

levels of government approval. In fact, there is theoretical support to think that the Constitution is highly

regarded in public opinion. As such, it is possible that low government approval ratings have no impact

on attitudes towards the Constitution.

Null Hypothesis: Low levels of government approval will have no effect on public attitudes towards the

Constitution.

METHODS

The data was collected by SRBI Public Affairs Research Center for a Time Magazine survey on the

Constitution conducted in June 2011. Polling was conducted over telephone among a national random

sampling of 1,003 Americans, ages 18 and older. Each case is an individual respondent. Due to “no” and

“unsure” responses, 371 observations were filtered out. Observations are only respondents who answered

questions on public opinion across the three branches of government and on the Constitution.2

DEPENDENT VARIABLE

The dependent variable measures public attitudes towards the Constitution. I organized responses as

either supporting reform or preserving the status quo. The survey asked:

Would you say that the U.S. Constitution has held up well as the basis for our government and

laws and is in little need of change, or would you say that we should hold a new Constitutional

convention to update the Constitution?

2 The data was retrieved from the Roper Center’s Public Opinion Archives with assistance from the Center for

Social Science Computation and Research at the University of Washington.



I coded responses that said the Constitution has “held up well up as the basis for our government and laws

and is in little need of change” as preserving the status quo. Generally, proponents for constitutional

reform argue for stronger reforms than are captured by “in little need of change.” This group is not likely

to support stronger reforms, such as changing the system of representation in the Senate. The types of

reforms they are more likely to support are not any that fundamentally change the system of government

currently in place.

I coded responses supporting a new Constitutional convention as supporting reform. But it is less clear

what a new convention means. Presumably, a convention could be convened with the intent of revising

the current Constitution, or creating a new government. Either way, this group believes that there is

something fundamentally not working and in need of change. Those who believe that the Constitution has

held up well but support stronger reforms that fundamentally change how government works fall under

this group.

INDEPENDENT VARIABLE

The key independent variables measure public attitudes towards government job performance. There are

three variables that correspond to each branch of government: the President, Congress, and the Supreme

Court. I coded all responses as either “Approve” or “Disapprove” and left out any blank and “don’t

know” observations.

CONTROLS

I included several controls in my regression model that I expect to influence public attitudes towards the

Constitution. These are level of education, constitutional knowledge, ideological orientation, income, age,

race, and gender.



I expect respondents with higher levels of education and greater constitutional knowledge to be more

likely to support reform. Presumably, more informed respondents are more likely than less informed

respondents to see things similarly with those scholars critical of the Constitution.

For ideological orientation, I expect conservatives to favor preserving the status quo. However, because

income, age, gender, and race are important indicators of a conservative demographic, these controls are

expected to be significant for reasons other than conservatism. I expect higher income respondents to

have a stronger financial incentive to preserve the status quo. Similarly, I expect older respondents to be

more likely to favor the status quo.

Lastly, I expect non-whites and females to be more likely to support constitutional reform than white

males. A possible reason is that during the Constitutional Convention these groups were not directly

represented. Although the Constitution serves their interests, presumably citizens prefer to be governed by

institutions that they had a voice in designing.

RESULTS

Overall, I find that people who are more dissatisfied with how government is working are neither more

nor less likely to support constitutional reform. Government job performance ratings for the President,

Congress, and the Supreme Court are statistically not significant in the regression model. Low

government approval ratings had no impact on the American public’s willingness to support reform.



Table 2: Linear Regression Results Predicting Reform-Oriented Views of the Constitution3

Independent Variables Coefficient

(Standard error)

Presidential Approval 0.0418

(0.04)

Congressional Approval -0.0639

(0.05)

Supreme Court Approval -0.0355

(0.03)

White -0.116*

(0.05)

Female -0.00172

(0.03)

Old -0.0381***

(0.01)

Income -0.0166

(0.01)

Education -0.0445**

(0.02)

Conservatism -0.0777**

(0.03)

Constitutional Knowledge -0.0973***

(0.03)

_cons 2.324***

(0.14)

N 623

Standard errors in parentheses * p < 0.05,

** p < 0.01,

*** p < 0.001

3 A positive coefficient indicates support for reform, and a negative coefficient indicates preserving the status quo.



To see if there was any difference between respondents who approved and disapproved of government

job performance, I compared predicted values for each branch. As shown in Figure 3, the overlap in error

suggests that differences between high and low approval have no impact on the American public’s

willingness to support reform. The President’s score came close to being significant, which would mean

those who were more likely to support the President were also more likely to favor reform. One

explanation for this could be broad public support for the President’s progressive policy agenda.

If how Americans think government is performing has no impact on attitudes towards the Constitution,

scholars arguing for reform have a problem. If the public perceives the problem as a constitutional one,

then low government approval ratings should have a negative impact on public attitudes towards the

Constitution. However, the findings reject this hypothesis. Rather, the null hypothesis is supported since



government performance ratings had no impact on attitudes towards the Constitution. Simply put,

Americans do not perceive the problem of government dysfunction as a constitutional one.

The findings also show that several demographic controls were significant. Level of education,

constitutional knowledge, ideological orientation, race, and age each had an impact on attitudes towards

the Constitution.

Level of education and constitutional knowledge impacted attitudes towards the Constitution, but not as

expected. I anticipated more informed respondents to be more likely to see things similarly with scholars

critical of the Constitution. However, respondents with higher levels of education were 4 percent more

likely to support preserving the status quo. Similarly, respondents claiming to have a “great deal” or

“some” knowledge of the Constitution were 9 percent more likely to support it regardless of low

government job performance ratings. However, it is important to note that there is likely a response bias;

only 13 percent of respondents admitted knowing “not much.”

To see if there was any difference between those who claim to know a “great deal” and those who claim

to know “nothing at all” about the Constitution, I ran two separate regressions. For both high and low

knowledge respondents, government job performance ratings were not statistically significant.

Respondents with greater constitutional knowledge were not any more likely to agree with those scholars

critical of the Constitution.

As expected, respondents who identify as conservative were 8 percent more likely to favor the status quo.

Even though race and age are important demographic indicators of conservatism, both had an impact on

attitudes towards the Constitution. White respondents were 12 percent more likely than non-whites to

favor the status quo. To a lesser degree, older respondents were 4 percent more likely to favor the status

quo. This suggests that race and age impact attitudes for reasons other than ideological orientation.



CONCLUSION

The major finding of this study is that people who are more dissatisfied with how government is

performing are neither more nor less likely to support constitutional reform. This is problematic for some

scholars who argue that constitutional reform is necessary to improve how government works. Even

though Americans disapprove of government job performance, they do not perceive the problem as a

constitutional one.

A likely explanation for this is that the American people highly regard the Constitution and are not likely

to attribute it with blame. After all, even respondents with higher levels of education and greater

knowledge were no more likely to agree with scholars arguing for reform. So how do Americans perceive

the problem? It is more likely that politicians and party politics foot the bill. These are more visible and

immediate causes. In any case, elite-driven efforts to reform the Constitution are not likely to win support

among the American public.



REFERENCES

Congress and the Public, Gallup (Gallup 2011), online at http://www.gallup.com/poll/1600/congress-

public.aspx (visited April 17, 2013).

Gerard N. Magliocca, The Constitution Can Do No Wrong, U Illinois L Rev 3 (2012).

Lon L. Fuller, Legal Fictions (Stanford University Press 1967).

Presidential Approval Ratings – Barack Obama, Gallup (Gallup 2011), online at

http://www.gallup.com/poll/116479/barack-obama-presidential-job-approval.aspx (visited April 17,

2013).

Richard L. Hasen, Political Dysfunction and Constitutional Change, 61 Drake L Rev (2013).

Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (Oxford

University Press 2008).

Seth Brohinsky and Mark Schulman, Constitution Withstands Test of Time, Abt/SRBI (Abt/SRBI June

23, 2011), online at http://www.srbi.com/Research-Impacts/Polls/Time-Abt-SRBI-Poll-Constitution-

Withstands-Test-of.aspx (visited April 17, 2013).

Supreme Court, Gallup (Gallup 2011), online at http://www.gallup.com/poll/4732/supreme-court.aspx

(visited April 17, 2013).

Walter Bagehot, The English Constitution (Cambridge University Press 2001).

http://www.gallup.com/poll/1600/congress-public.aspx

http://www.gallup.com/poll/1600/congress-public.aspx

http://www.gallup.com/poll/116479/barack-obama-presidential-job-approval.aspx

http://www.srbi.com/Research-Impacts/Polls/Time-Abt-SRBI-Poll-Constitution-Withstands-Test-of.aspx

http://www.srbi.com/Research-Impacts/Polls/Time-Abt-SRBI-Poll-Constitution-Withstands-Test-of.aspx

http://www.gallup.com/poll/4732/supreme-court.aspx



APPENDIX

Variable Government job performance ratings

Variable Type Primary Independent

Indicator Public opinion

Current Location The data is available on Roper: [USSRBI2011-5380]

Case Level Individual

Number of Cases 1003

Range Values range from 0 to 100 percent

Sample Values President approval 48% Congress approval 21% Supreme Court

approval 47%

Variable Attitudes towards the Constitution

Variable Type Dependent

Indicator Public opinion




Range Values range from 0 to 100 percent

Sample Values 64% of Americans believe Constitution has “held up well”

Variables Race, age, gender, income, level of education, ideological

orientation, and constitutional knowledge

Variable Type Control

Indicator Demographics




Range Categorical

Sample Values Female 51% White 81% Conservative 29%



Legitimacy Or Democracy? On Rawls’ Legal Theory4

Elliot Mamet

Colorado College

ABSTRACT

As the dispute between John Rawls and Jürgen Habermas illustrates, the relationship between

democracy and legitimacy poses an intractable problem for the task of striving for justice in

political life. This essay aims to delineate one point of genuine conflict between Habermas and

Rawls; namely, the role that democratic public norm determination plays in providing legitimacy

for the modern state and its laws. In Part I, I outline the challenge to Rawls’ lack of use of the

democratic public norm determination, as articulated by Habermas and Sheldon Wolin. I am

sympathetic to Habermas and Wolin in their critique of Rawls, and propose two modest ways to

strengthen their critique: first, by leveling an internal critique, examining the sequence of

democracy and legitimacy in Rawls’ theory, and second, by articulating an external critique,

dereifying the homogenous public implicit in the model of political liberalism. However, in Part

II, I briefly conclude that the critique of Rawls, as strong as it might be, falls short. When the

very framework of the game of politics is contestable, moral autonomy as such falls under a

solemn threat.5

4 I thank Dr. Emmanuel Melissaris, Department of Law, London School of Economics and Political Science (LSE) for his comments, as well as Frances Bennett, Simone Davies, Margarita Kato, and the editors of the Xavier Undergraduate Law Review. 5 See Benhabib, Seyla, “Deliberative Rationality and Models of Democratic Legitimacy,” Constellations 1.1 (1994): 26-52, 38-39.



I.

In Section III of his critique of Rawls, Habermas distinguishes two types of liberty from one

another: first, liberty of the moderns, comprising of subjective property rights as well as liberty

of belief and conscience; and second, liberty of the ancients, roughly corresponding to rights

involving democratic deliberation in the public sphere.6 For Habermas, the former is derived

from the liberal tradition, and the latter from Republicanism.7 (Echoing Benjamin Constant, who

first delineated the two terms, I’d add that the former protects individual rights whilst the latter

refers to a collective exercise of sovereignty.)8 Delineating these two forms of liberty allows

Habermas to argue that Rawls ultimately prioritizes liberty of the moderns over liberty of the

ancients. Wolin, supporting Habermas’s position, laments the deeply unstable roots of the project

of political liberalism:

Its supreme political value is not dispersed power but individual liberty; its pivotal institution is

neither popularly elected nor democratically responsible but is the supreme court; and it locates

the true expression of political identity not in the vitality of local institutions but in the

constitution…When democracy is invoked only to be subaltern, what sorts of possibilities,

realities and historical memories are being denied?9

In line with Wolin, Habermas ultimately concludes that if Rawls indeed prioritizes the liberty of

the moderns over the liberty of the ancients, then it follows that Rawls prioritizes individual

6 Habermas, Jürgen, “Reconciliation Through the Public use of Reason: Remarks on John Rawls’s Political Liberalism,” The Journal of Philosophy 92.3 (March 1995): 109-131, 127. 7 Habermas, “Reconciliation Through the Public use of Reason: Remarks on John Rawls’s Political Liberalism,” 127;

Habermas, Jürgen, “On the Internal Relationship between the Rule of Law and Democracy,” European Journal of Philosophy 3.1: 12-20, 16. 8 Constant, Benjamin, Political Writings (Cambridge: Cambridge University Press, 1988): 310-311. 9 Wolin, Sheldon S., “The Liberal/Democratic Divide. On Rawls’ Political Liberalism,” Political Theory 24.1 (February 1996): 97-119, 98.



liberty over the democratic processes.10

Rawls chooses acceptability over acceptance.11

In this

sense, Rawls forgets that both modern and ancient liberty derive from the same root.12

Moreover,

he ignores the internal relationship inherent in the relationship between law and democracy.13

Habermas and Wolin effectively critique Rawls’ prioritization of legitimacy. In a similar vein, I

offer an internal critique, claiming that the sequence of democratic participation and liberal

legitimacy is important for understanding the Rawlsian account. In the last paragraph of “Justice

as Fairness: Political not Metaphysical,” for example, Rawls concludes his defense of the role

overlapping consensus plays in mediating as-yet insolvable conflicts between reasonable

comprehensive doctrines.14

“Doctrines which persist and gain adherents,” Rawls writes, “depend

in part on social conditions, and in particular, on these conditions when regulated by the public

conception of justice.”15

The more that a comprehensive doctrine supports the overlapping

consensus through reasonableness [claim R], the more stable that doctrine becomes [claim S].

Rawls goes on suggest that the popularity of comprehensive doctrines, and in turn the stability of

comprehensive doctrines, depends in part on social conditions. The more democratically popular

a doctrine is [claim P], the more stable that doctrine becomes [claim S]. We are left, however, in

the following quagmire: if both reasonableness and popularity lead to a doctrine’s stability, what

happens if what is reasonable is not popular [R ∧ ~P], or where what is popular is not reasonable

[P ∧ ~R]? The deductive conclusion is that, for the purposes of the doctrine of overlapping

consensus, it remains unclear if stability can be achieved if a doctrine is not both reasonable and

10 Habermas, “Reconciliation Through the Public use of Reason: Remarks on John Rawls’s Political Liberalism,” 128. 11

Ibid., 122. 12 Ibid., 127. 13 Habermas, “On the Internal Relationship between the Rule of Law and Democracy,” 13. 14 Rawls, John, “Justice as Fairness: Political not Metaphysical,” Philosophy & Public Affairs 14.3 (Summer 1985): 223-251, 250. 15 Ibid., 250-251.



democratic.16

We cannot deductively rule out the possibility that stability will not be achieved in

this scenario.

It follows that Rawls’ argument here is so crucial here for two reasons: first, because the

argument assumes that democratic success and reasonableness are linked in tandem, failing to

account for a situation whereby social conditions give rise to one without the other, and second,

because of the sequential order in which liberal legitimacy (viz. reasonableness) and democratic

popularity fall. The former precedes the latter. It is this relationship between popular acceptance

of a doctrine and the acceptability of that doctrine under a theory of political liberalism that

leaves Rawls so susceptible to an internal critique.

Assume that Rawls’ claims do indeed hold against Habermas’ objection about the conflation of

acceptance with acceptability and my internal objection about the sequence of order and

legitimacy.17

Even so, a broader, external critique of the democratic public norm determination

remains. Consider the basis of the Rawlsian theory: a “point of view, removed from and not

distorted by the particular features and circumstances of the all-encompassing background

framework, from which a fair agreement between persons regarded as free and equal can be

reached.”18

This theory is predicated in a particular, situated historical framework. The

framework views human interactions as “a form of intercourse between isolated egoistic

subjects, the bearers of autonomous private interests,”19

to borrow the words of Evgeny

Pashukanis. Moreover, by overcoming social situations through the veil of ignorance, Rawls

16 Given: [R ⊃ S] ∧ [P ⊃ S]

Assume: [R ∧ ~ P] ∨ [P ∧ ~R]

… ∴ S ∨ ~ S In other words, for Rawls, no causal link exists requiring both reasonableness and popularity to ensure a doctrine’s stability. 17 Habermas, “Reconciliation Through the Public use of Reason: Remarks on John Rawls’s Political Liberalism,” 122. 18 Rawls, John, Political Liberalism (New York: Columbia University Press, 1993): 23. 19 Pashukanis, Evgeny B., Law and Marxism: A General Theory (London: Pluto Press, 1978): 188.



engages in a process of reifying disparate and diverse lives into a homogenized public from

whom principles of justice are derived.20

When we reify, “we draw an abstraction from a

concrete milieu and then mistake the abstraction for the concrete.”21

Emerging from an atomistic

view of human nature, then, the difference principle in particular constitutes a form of justice

designed to mediate material inequality. Rawls’ procedural approach to democracy, and its

starting point in the reified “facts” of material exchange and self-interest, stands in stark contrast

to a more substantive view of democracy.22

Put bluntly, Rawls’ theory begins with the concept of

distribution, rather than with concepts of domination and oppression.23

This starting place has

important impacts on the structure of law. Insofar as its so-called “facts” are depictions of

atomistic exchange on behalf of self-interest, Rawlsian political liberalism represents a particular

ontological approach.24

I contend that approach contains profound normative implications.

II.

So far, I have attempted to outline the strongest arguments for the position that the underlying

problem in Rawls’ political theory is its failure to realize the importance that democratic public

norm determination plays in legitimating the state and its laws. What are the weaknesses in that

position? Perhaps, to challenge the above position and to defend the Rawlsian project, one might

critically examine Seyla Benhabib’s work on deliberative democracy. Benhabib—in an attempt

20

Benhabib, 41; see also Young, Iris Marion, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990): 7. 21 Gabel, Peter, “Reification in Legal Reasoning,” Research in Law and Sociology 3.1 (1980): 25-51, 26. 22 Castoriadis, Cornelius, “Democracy as Procedure and Democracy as Regime,” Constellations 4.1 (1997): 1-18, 6. 23

Young, 33. Note that Young’s approach to justice correlates with the distinction between liberty as non-interference vs. liberty as non-domination drawn by Philip Pettit. See Pettit, Philip, “Law and Liberty” in Legal Republicanism: National and International Perspectives, ed. Besson, Samantha & Jose Louis Marti (Oxford: Oxford University Press, 2009). 24 Habermas’ attack on methodological positivism particularly applies here. See Thomassen, Lasse, Habermas: A Guide for the Perplexed (London: Continuum Books, 2010): 25.



to provide an alternative to Rawlsian liberalism— offers a striking metaphor to depict the status

of basic individual rights under a deliberative democracy:

Democratic debate is like a ball game where there is no umpire to definitively interpret the rules

of the game and their application. Rather in the game of democracy the rules of the game no less

than their interpretation and even the position of the umpire are essentially contestable.25

In the deliberative model, the ‘game of democracy’ renders background conditions contingent on

the intersubjective political communication between citizens. Instead of complying with

background conditions of justice that stand beyond, framing the public debate, Benhabib outlines

a model predicated on communicative ethics.26

We tear off the veil of ignorance to find a rich

political dialogue around us. In the deliberative democracy, then, the liberty principle does not

stand fixed, outside the realm of public debate.27

It can instead be found at very core of a referee-

less game where the entire framework of basic rights stands in perennial popular contestation.

For Rawls, then, it remains true that for no matter how free and unconstrained the public

deliberation may seem,28

a society without respect for the liberty principle would fail to conform

to a conception of justice derived from the facts of freedom and equality inherent in the modern

constitutional democracy. Recall that the third and final of Rawls’ stages of justification, public

justification by the political society, is a justification made in the terms of politics that fall within

the overlapping consensus.29

Principles of liberty stand outside the field of contestation. Perhaps

legitimacy must be separated from democracy in order to protect justice, whose meaning

includes a fully adequate scheme of equal rights. Discourse alone serves as no match for the dark

25

Benhabib, 38-39. 26 See, e.g., Rawls, John, Political Liberalism (New York: Columbia University Press, 1993): 175-176 & 265-269. 27 Flynn, Jeffrey, “Two Models of Human Rights,” in Habermas and Rawls: Disputing the Political, ed. Finlayson, James Gordon & Fabian Freyenhagen (New York: Routledge, 2001): 247-264, 253. 28 Benhabib, 26. 29 Rawls, John, “Reply to Habermas,” The Journal of Philosophy 92.3 (March 1995): 132-180, 144-145.



ability of democracy to erode fundamental liberties. In this sense, if democracy frames

legitimacy, than the moral autonomy so important to deliberative democracy stands beneath the

grave shadow of the will of all.



Works Cited

Benhabib, Seyla “Deliberative Rationality and Models of Democratic Legitimacy.”

Constellations 1.1 (1994): 26-52.

Castoriadis, Cornelius. “Democracy as Procedure and Democracy as Regime.”

Constellations 4.1 (1997): 1-18.

Constant, Benjamin. Political Writings. Cambridge: Cambridge University Press, 1988.

Flynn, Jeffrey. “Two Models of Human Rights.” In Habermas and Rawls: Disputing the

Political. Ed. Finlayson, James Gordon & Fabian Freyenhagen. New York: Routledge, 2001):

247-264.

Gabel, Peter. “Reification in Legal Reasoning.” Research in Law and Sociology 3.1

(1980): 25-51.

Habermas, Jürgen. “On the Internal Relationship between the Rule of Law and

Democracy.” European Journal of Philosophy 3.1 (1995): 12-20.

Habermas, Jürgen. “Reconciliation Through the Public use of Reason: Remarks on John

Rawls’s Political Liberalism.” The Journal of Philosophy 92.3 (March 1995): 109-131.

Pashukanis, Evgeny B. Law and Marxism: A General Theory. London: Pluto Press, 1978.

Pettit, Philip. “Law and Liberty.” In Legal Republicanism: National and International

Perspectives. Ed. Besson, Samantha & Jose Louis Marti. Oxford: Oxford University Press, 2009.

Rawls, John. “Justice as Fairness: Political not Metaphysical.” Philosophy & Public

Affairs 14.3 (Summer 1985): 223-251.

Rawls, John. “Reply to Habermas.” The Journal of Philosophy 92.3 (March 1995): 132-

180.

Rawls, John. Political Liberalism. New York: Columbia University Press, 1993.



Thomassen, Lasse. Habermas: A Guide for the Perplexed. London: Continuum Books,

2010.

Wolin, Sheldon S. “The Liberal/Democratic Divide. On Rawls’ Political Liberalism.”

Political Theory 24.1 (February 1996): 97-119.

Young, Iris Marion. Justice and the Politics of Difference. Princeton: Princeton

University Press, 1990.



Bitcoin and Tax Evasion

James A. Bax III

Xavier University

ABSTRACT

Bitcoin is an open-source, digital payment system that operates on a decentralized peer-to-peer

network over the internet. By its very nature, Bitcoin has the potential to become an online tax

haven: it requires no third-party intermediaries to oversee transactions, like banks or credit card

companies, has no central governing authority, and operates completely online allowing for a

certain level of anonymity for its users. Those wishing to evade taxes can shelter income by

converting to Bitcoin and hiding behind a wall of anonymity provided by the Tor network and

online “mixing” services. In response, the IRS has provided guidance to taxpayers classifying

Bitcoin as property and requiring those transacting in the currency to calculate capital gains and

losses for every transaction they make. Whie indeed cumbersome, the Bitcoin marketplace

needs regulation to encourage widespread adoption. Nevertheless, it remains unclear if such a

regulatory regime will be effective at encouraging Bitcoin users to report income to the IRS.



Introduction

Between 2001 and 2010, over $3 Trillion of federal revenue was lost to tax evasion.[1] Evading

taxes can be as simple as underreporting income or overstating charitable contributions on a tax

return, or as complicated as stowing money in offshore bank accounts. But with the advent of

digital currencies and their growing popularity, tax evaders may have a new tool to help them

cheat the tax man: Bitcoin. Bitcoin is a decentralized, open-source digital currency and payment

system that can be used to purchase real goods and services.[2] Bitcoin has several features that

make it especially “tax advantaged.” For one, Bitcoin operates on a peer-to-peer network over

the internet making financial intermediaries, such as banks, unnecessary.[3] Bitcoin users can

also set-up numerous Bitcoin “wallets” using falsified information to store their

funds.[4] Additionally, Bitcoin exists in a legal grey area, devoid of substantive legal regulation

by any government or agency. With such unique traits and a lack of governmental oversight,

Bitcoin has the potential to become a viable means for evading taxes.

II. Background

The idea for Bitcoin can be traced back to an essay written by Wei Dai in 1998 that

examined the application and development of a “crypto-currency” that would use cryptography

to both generate funds and secure transactions between parties over the internet.[5] Wei

proposed that money would be created “by broadcasting the solution to a previously unsolved

computational problem” where “the number of monetary units created is equal to the computing

effort” it takes to solve the problem.[6] Each user of the system maintains his/her own database

to record all transactions—which are broadcast publicly and contain each party’s “signature”—

allowing for every user to debit the buyer’s account and credit the seller’s.[7] In 2009, a

pseudonymous programmer/collective working under the name of Satoshi Nakamoto, developed



an open-source suite of software to implement Wei Dai’s protocol. Despite several recent

claims, the identity or whereabouts of Satoshi Nakamoto have not been confirmed.[8]

III. Operation

The Bitcoin system operates through the use of public key encryption and cryptography

to conduct transactions using “wallets” to act as a store for the Bitcoin.[9] Each Bitcoin wallet

generates a unique public address comprised of a string of upper and lower case letters and

numbers as well as a unique private address.[10] When a transaction takes place, the entity

paying with Bitcoin enters the receiver’s unique public address into a transaction message (like

an email) and confirms the extraction of funds in their account by “signing” the message with

their private address.[11] The receiving party simply reads the message and accepts or rejects

the Bitcoin with all accepted transactions then being broadcast to the entire Bitcoin

community.[12]

To ensure security and prevent double-spending, all public transactions are also time-stamped by

a peer-to-peer timestamp server and then posted with all other transactions taking place within a

10 minute time interval to form what is known as a “block.”[13] Each block is combined to

form the “block chain,” which contains a reference to the previous transaction in addition to an

exceedingly difficult cryptographic math problem.[14] Before each block is added to the block

chain, the math problem must be solved and the answer verified by users of the

network.[15] The process of attempting to answer these mathematical puzzles is known as

mining, and correct answers are rewarded with Bitcoin.[16] The process of mining requires an

increasing amount of computing power and performs two functions: it serves as the mechanism

for creation of Bitcoin and as an incentive for maintaining the ledger which prevents



counterfeiting.[17] Other ways to obtain Bitcoin include online exchanges, private trade and

most recently, ATMs.[18]

IV. Anonymity

The Bitcoin protocol offers an exceptional level of pseudo-anonymity that can be

augmented with a combination of partially decentralized, trustless mixing services and the Tor

network, to completely disassociate users from their Bitcoin transactions, effectively making

Bitcoin anonymous. At a most basic level, mixing services bring together parties wishing to

exchange Bitcoin by allowing them to send a specific quantity of Bitcoin to a mixer that then

shuffles the funds associated with each wallet before sending them to their final destination

address.[19] The link between addresses that normally appears in the block chain is never

reported thus making it nearly impossible to trace funds back to even an exchange, let alone the

actual account holder.[20] However, there is substantial risk involved: the facilitator of the

mixer could easily and untraceably abscond with all the funds.[21] Two Spanish developers

have since devised a workaround that limits this liability.[22]

These mixing services can only be reached through use of the Tor network, a software package

originally developed by the Department of Defense.[23] Tor, an acronym for The Onion Router,

encrypts user data by sending it through an extensive network of Tor relays that layer on levels

of encryption like an onion, effectively obfuscating the user’s IP address.[24] In the wake of the

Edward Snowden scandal, classified NSA documents referred to Tor as “the King of high secure,

low latency Internet Anonymity.”[25] The combination of these two services provides users

with an exceptional level of anonymity; an ideal quality for a medium to evade taxes. However,

the question remains: how can Bitcoin actually be used to facilitate tax evasion?

V. Tax Evasion



Tax evasion is generally defined as the unlawful practice or process of a

person/organization/company to pay less tax than what is lawfully owed.[26] Bitcoin can be

used in several ways to perpetrate tax evasion in this respect. The easiest would be to not report

capital gains as a result of Bitcoin’s rise in value. For most of 2011, Bitcoin traded at less than

$3/BTC before rising to a peak near $1,200/BTC in 2013.[27] For early adopters, simply holding

the currency would have resulted in substantial gains that would need to be reported if

exchanged for another currency or used to buy goods or services. The IRS has issued guidance

relating to the personal reporting of capital gains in Bitcoin, instructing users to treat the virtual

currency like property.[28] It is incumbent upon users of the currency to assess and report any

capital gains or losses that may result from the purchasing of assets or services.[29]

Another potential tax compliance issue is not reporting earnings for companies that

transact in Bitcoin.[30] Companies who receive payment in Bitcoin in exchange for services or

goods could, in theory, shelter their earnings by establishing numerous wallets without divulging

the company’s identity provided they do not use a central wallet and use the Tor

network.[31] Earnings in exchange for services or goods are clearly taxable as income yet it is

unlikely that the IRS or any tax authority will ever know about the income or be able to trace it

back to the company without deploying significant resources to investigate the sources of

income.[32] Companies would have to voluntarily offer up their earnings in Bitcoin if they

wished to pay taxes.

More complex schemes are also possible such as using Bitcoin as a medium of exchange

to conduct transactions with a tax-exempt investor or investment entity such as a charity or

endowment fund.[33] As an example, consider the possibility of a member of a student-run

investment fund converting his/her Bitcoin into dollars and then investing those dollars in



securities through the fund. Earnings from the security’s price appreciation or dividends are then

converted back into Bitcoin by the student who never “realizes” any tax-liability because the

student-run investment fund is tax exempt and the transfer of funds takes place through the

medium of Bitcoin. Such a complex transaction would be difficult to track if the transactions are

performed through the Tor network and in small monetary amounts. Regulators have

acknowledged these risks yet have been unable to set forth any substantive regulatory guidelines

on Bitcoin tax compliance.[34]

VI. General Legal Considerations

The US Constitution grants Congress the right to “coin money, regulate the Value

thereof, and of foreign Coin.”[35] However, the Framers neglected to mention private currency,

which Bitcoin may be categorized as, given that it is not issued by a central authority,

governmental or otherwise.[36] Private currency is mentioned in the Stamp Payments Act of

1862 which reads “whoever makes, issues, circulates, or pays out any note check, memorandum,

token, or other obligation…intended to circulate as money or to be received or used in lieu of

lawful money” will be fined.[37] It is unlikely, however, that Bitcoin would fall under the

purview of the Stamp Payments Act for several reasons: (1) Bitcoin does not “circulate as

money” because it does not possess the physical features of money (“note check, memorandum,

token”) nor is Bitcoin an “other obligation” because no one is obliged to exchange Bitcoin for

something; (2) Bitcoin does not compete with the dollar as much as it competes with credit cards

or PayPal; (3) Bitcoin is not pegged to the dollar.[38] It is also impractical to fine “whoever

makes, issues, circulates” Bitcoin given that it is not issued or made by anyone and circulates in

cyberspace. Additionally, the Stamp Payments Act has yet to be used in a prosecutorial manner

for other digital currencies preceding Bitcoin.[39]



VII. Current Regulation

The most substantial source of regulation comes from the Financial Crimes Enforcement

Network’s (FinCEN) application of the Bank Secrecy Act of 1970 (BSA) to Bitcoin exchanges

and wallets.[40] FinCEN is a regulatory agency under the Treasury Department that was

established by the BSA to enforce the Act’s provisions.[41] The BSA requires that “financial

institutions keep record of cash purchases of negotiable instruments, file reports of cash

transactions exceeding $10,000 (daily aggregate amount), and report suspicious activity that

might signify…tax evasion” among other crimes.[42] Under the category of “financial

institutions” is one particular type, known as a “money services business” (MSB) which includes

“money transmitters.”[43] A money transmitter is defined as “an administrator or exchanger

that accepts and transmits a convertible virtual currency or buys or sells convertible virtual

currency for any reason.”[44] Bitcoin exchanges clearly qualify as money transmitters and as

such, are required to register with the Treasury Department as MSBs and comply with all

reporting requirements of the BSA.[45] Regulation such as this, however, remains largely

ineffectual at detecting criminal activity and is completely useless if users access the exchanges

through the Tor network to mix their funds.[46]

Another avenue regulators could pursue under the guise of the BSA is through separate tax-

reporting rules designed for banking institutions, which include reports of Foreign Bank and

Financial Accounts (FBARs) and the Foreign Account Tax Compliance Act (FATCA).[47] Any

US citizen who has authority over a financial account that at any point exceeds $10,000 in value

over the previous year must file a report to the IRS or face criminal penalties.[48] FATCAs are

similar to FBAR, though not mutually exclusive, and require US citizens to disclose information

on foreign financial assets that exceed a threshold amount.[49] Since Bitcoin operates over the



internet, it may be considered a foreign asset. The major assumption undergirding these

regulatory regimes is that Bitcoin users are exchanging Bitcoin back into government-issued

currency.[50] For users who never exchange their Bitcoin and are able to live off the currency

alone, this type of regulation is obviously ineffectual.[51]

VIII. Individual Tax Compliance and Regulation

In its 2013 Annual Report to Congress, the National Tax Payer Advocate Service stated that the

IRS lacked “clear answers to basic questions such as when and how taxpayers should report

gains and losses on digital currency transactions.”[52] A report by the Government

Accountability Office suggests taking a “relatively low-cost” approach to providing information

to taxpayers “on the basic tax reporting requirements for transactions using virtual

currencies.”[53] Since these reports were first published, the IRS has responded by issuing

guidance that Bitcoin is to be treated like property.[54] In practice, those paying with Bitcoin for

goods or services must, at the time of transaction, assess a capital gain or loss based on (1) the

current market $/BTC exchange rate as it relates to the price of the product or service being

purchased, and (2) the holding period of the Bitcoin prior to the transaction.[55] Any capital

gain or loss is then subject to reporting by the payor or payee as normal income on the

appropriate tax reporting form.

IX. Conclusion and Reflection

The Bitcoin economy needs regulation to not only legitimize the currency, but also expedite its

adoption. Successful regulation could mitigate such common issues within the Bitcoin economy

such as high price volatility and fluctuating confidence in the currency. Effective regulation

would also have the likely effect of increasing adoption by both public and commercial users

who are confident in the viability of the Bitcoin marketplace. Members of the Bitcoin



community need sound regulation; public and commercial users should be able to easily comply

with IRS and BSA reporting guidelines. However, the most recent IRS guidance only seems to

complicate the issue of recording capital gains or losses. For each fraction of a Bitcoin in a

person’s wallet, the wallet holder must be able to trace that Bitcoin’s original market value at the

time it was first acquired in order to then be able calculate the value of a capital gain or loss on a

purchase. It is also unclear which rate of exchange to use given the numerous exchange rates

available to Bitcoin users. In short, the new IRS reporting requirements encumber Bitcoin users

with burdensome calculations and record keeping. While it is yet to be seen if the current

regulatory regime will have any meaningful effect on the Bitcoin economy, it is imperative that

developers work collaboratively with regulators in the future to produce guidelines that benefit

all interested parties in the long run.



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Digital Currency System, 73 La. L. Rev. 1119, 1130 (2013)

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[1]Our Fiscal Security, Tax Evasion: The Real Costs, (2011). Web. <http://www.ourfiscalsecurity.org/storage/infographic_FRI_D5.pdf> [2]“This is the official site for Bitcoin developers.” https://bitcoin.org/en/faq [3]Elwell, Craig et al., Bitcoin: Questions, Answers, and Analysis of Legal Issues. United States

Cong. Report. Washington, D.C.: Congressional Research Service, 2013. Web. [4]Marian, Omri, Are Cryptocurrencies Super Tax Havens? 112 Mich. L. Rev. First Impressions 38,

41 (2013)

[5]Bitcoin.org/en/faq, supra note 2 [6]Wei Dai, b-money: a scheme for a group of untraceable digital pseudonyms to pay each other

with money and to enforce contracts amongst themselves without outside help. Web. <

http://www.weidai.com/bmoney.txt> [7]Id. [8]Goodman, Leah McGrath, The Face Behind Bitcoin, Newsweek, March 6, 2014. Web.

<http://mag.newsweek.com/2014/03/14/bitcoin-satoshi-nakamoto.html> [9]Plassaras, Nicholas, Regulating Digital Currencies: Bring Bitcoin within the Reach of the IMF, 14

Chi. J. Int’l L. 377, 383 (2013) [10]Id. [11]Id. [12]Id. [13]Id. at 383

[14]“Wiki-style website about Bitcoin created by active Bitcoin developers.” https://en.bitcoin.it/wiki/Block [15]Id. [16]Id.

[17]Gruber, Sarah, Trust, Identity, and Disclosure: Are Bitcoin Exchanges the Next Virtual Havens for Money Laundering and Tax Evasion? 32 Quinnipiac L. Rev. 135, 143 (2013) [18]Lever, Rob, ATMs Raise Bitcoin Profile, Concerns, Yahoo News, February 19, 2014.

<http://news.yahoo.com/atms-raise-bitcoin-profile-consumer-protection-concerns-165539086.html>

[19]Buterin, Vitalik, Trustless Bitcoin Anonymity Here at Last, Bitcoin Magazine, August 28, 2013. Web.

<http://bitcoinmagazine.com/6630/trustless-bitcoin-anonymity-here-at-last/> [20]Id. [21]Buterin, supra note 19

[22]Martin, Pablo and Amir Taaki, Anonymous Bitcoin Transactions, Web. <http://sx.dyne.org/anontx/> [23]Glater, Jonathan, Privacy for People Who Don’t Show Their Navels, The New York Times, January 25, 2006. Web. <http://www.nytimes.com/2006/01/25/technology/techspecial2/25privacy.html?_r=2&> [24]Id.

[25]TheGuardian.com, Tor: ‘The king of high-secure, low-latency anonymity’, The Guardian, October 4, 2013. Web. <http://www.theguardian.com/world/interactive/2013/oct/04/tor-high-secure-internet-anonymity> [26]http://legal-dictionary.thefreedictionary.com/Tax+Evasion [27]“This site offers customized Bitcoin charts and historical price data.”

http://bitcoincharts.com/charts/bitstampUSD#tgTzm1g10zm2g25zv

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[28]Internal Revenue Service, IRS Virtual Currency Guidance: Virtual Currency Is Treated as

Property for U.S. Federal Tax Purposes; General Rules for Property Transactions Apply, March 25,

2014. Web. <http://www.irs.gov/uac/Newsroom/IRS-Virtual-Currency-Guidance> [29]Jacobsen, Brad and Fred Pena, What Every Lawyer Should Know About Bitcoins, 27 Utah Bar J.

40, 43. (2014) [30]Marian, supra note 4, at 41 [31]Id.

[32]Id. [33]Id.

[34]National Tax Payer Advocate Service. 2013 Annual Report to Congress. Rep. IRS. Web.

<http://www.irs.gov/pub/irs-pdf/p2104.pdf>. [35]US Constitution. Art. I, Sec. 8

[36]Doguet, Joshua, The Nature of the Form: Legal and Regulatory Issues Surrounding the Bitcoin Digital Currency System, 73 La. L. Rev. 1119, 1130 (2013) [37]18 USC, Sec. 336 [38]Doguet, supra note 33, at 1130 [39]Smith, Brian, Wilson, Ramsey, How Best to Guide the Evolution of Electronic Currency Law, 46

AM. U. L. Rev. 1105, 1110 (1997) [40]Gruber, supra note 17, at 170 [41]31USC, Sec. 310 [42]Id. [43]Elwell, supra note 3, at 14 [44]Financial Crimes Enforcement Network, Application of FinCEN's Regulations to Persons

Administering, Exchanging, or Using Virtual Currencies, Department of the Treasury, United States,

2 (2013). Web. [45]Elwell, supra note 3, at 14 [46]Gruber, supra note 17, at 191 [47]Id. at 194 [48]“This article provides current FBAR guidance.” http://www.irs.gov/Businesses/Small-

Businesses-&-Self-Employed/Report-of-Foreign-Bank-and-Financial-Accounts-FBAR [49]Id. [50]Marian, supra note 4, at 45 [51]Id.

[52]National Tax Payer Advocate Service, supra note 31 [53]Government Accountability Office, Virtual Economies and Currencies: Additional IRS

Guidance Could Reduce Tax Compliance Risk, United States, 17 (2013). Web. [54]Jacobsen, supra note 29 [55]Id.





An Analysis of Recalls and Safety Issues in the Automotive Industry

Shawn Gannon

Xavier University

ABSTRACT

The purpose of this research paper is to analyze recalls and safety issues in the automotive

industry in light of recent legal suits against automotive powerhouses like General Motors and

Toyota. This paper will examine the history of automotive litigation, product liability, and

current legal and ethical issues facing the automotive industry. The paper includes a discussion

of contract and tort law, in addition to the legal principles that serve as a foundation for product

liability cases. Furthermore, this paper will analyze the effectiveness of self- versus government

regulation within the automotive industry, and the tension between industry profits and safety

measures. Finally, it emphasizes the need for increased government regulation and ethical

considerations within the industry.



I. Introduction

The automotive industry has made huge strides in innovation in the past few decades,

producing cars that can park themselves, cars that can break even before the driver does, and even

designs for cars that will be able to drive themselves. However, in the shadows of these great advances

in technology are multiple scandals involving safety failures and product liability issues. From Ford and

Firestone’s defective tire cover-up to Toyota’s unintended acceleration issues to GM’s recent ignition

switch failure cover-up, automotive recalls and safety issues have taken the spotlight. These issues raise

many questions regarding automobile safety, automobile litigation, the effectiveness of self-regulation

and the ethical responsibilities of automotive companies. This paper will explore product liability, the

effectiveness of current automobile regulations and the auto industry’s ability to self-regulate, and the

ethical implications of recent product recalls and self-governance.

II. History of Automotive Litigation and Regulation

The first American legal case involving product liability and automobile safety occurred in 1920,

when a man’s car wheel collapsed and he was thrown from the vehicle.30 The man sued the car

manufacturer and won, with Justice Benjamin Cardozo ruling:

If the nature of a thing is such that it is reasonably certain to place life and limb in peril where

negligently made, it is then a thing of danger…. If to the element of danger there is added

knowledge that the thing will be used by persons other than the purchaser, and used without

new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a

duty to make it carefully.31

30 MacPherson v. Buick Motor Co., New York Court of Appeals, 161 A.D. 906 145 N.Y.S. 1132 1914 N.Y. App. Div. 31 Aaron Ezroj, Product Liability After Unintended Acceleration: How Automotive Litigation Has Evolved, 26 Loy.

Consumer L. Rev., 470, 472 (2014)



Essentially, the justice concluded that “a manufacturer breaches his duty of care to a foreseeable

consumer if the manufacturer's acts or omissions create an unreasonable risk of harm,” and that

“consumers could, in fact, recover from manufacturers under a negligence theory in the absence of a

contractual relationship.”32 This historic ruling set precedent for future cases involving automobile

safety issues and product liability, making it clear that car manufacturers were responsible for ensuring

the basic safety of their vehicles. The issue of product liability again rose to significance in the 1960s and

1970s, as the automobile industry shifted with regards to safety measures. Accidents, once viewed as

“inherent risks” of driving and the result of “driver error,” were now understood to be equally, if not

more, dependent on the safety features of a vehicle.33 A number of landmark lawsuits “motivated

important safety improvements… [and] penalized culpable manufacturers and compensated consumers

who suffered losses.”34 Manufacturers were no longer able to blame safety concerns on drivers; they

became legally accountable for their products.

i. The National Highway Traffic Safety Administration

The most important result of this increased demand for automobile safety was the creation of

the National Highway Traffic Safety Administration, a division of the Department of Transportation,

whose mission is “to help reduce the number of deaths, injuries, and economic losses resulting from

motor vehicle crashes on the Nation’s highways.”35 In addition to regulating and enforcing major safety

measures such as seatbelts and standards for crash test dummies, NHTSA’s responsibilities include

conducting “programs relating to the safety performance of motor vehicles and related equipment” and

32 Andrew A. Bennington, Tort Law: Statutory Stalemate: Strict Products Liability and Comparative Negligence in

South Carolina, 56 S.C. L. Rev., 815, 816-817 (2005).

33 Id. at 473. 34 Id. at 470. 35 National Highway Traffic Safety Administration, Federal Registrar: The Daily Journal of the United States

Government, Web. <https://www.federalregister.gov/agencies/national-highway-traffic-safety-administration>.

https://www.federalregister.gov/agencies/national-highway-traffic-safety-administration



enforcing Federal Motor Vehicle Safety Standards, among other things.36 NHTSA can also

“independently move to require a particular safety standard,” trumping the authority of car

manufacturers.37 It has access to all manufacturer, distributor, and dealer records in order to assist the

development of new safety measures.38 Overall, the National Highway Traffic Safety Administration has

had a tangible impact on automobile safety since its creation. Annual deaths on American highways are

about 33,000, a lower death rate than before NHTSA was created, even though America’s population

and car usage have increased.39

In addition to these specific safety issues, the National Highway Traffic Safety

Administration also has the authority to legally enforce product liability issues. NHTSA can

independently move to “require particular safety standards,” and also require “manufacturers to

recall automobile vehicles and equipment when they do not meet a Federal safety standard or

there is another safety-related defect.”40

A recall is “a notification to consumers of a product

hazard and procedures for accomplishing its repair.”41

It can also be defined as "a very specific

device by which a manufacturer, seller . . . or other entity in the chain of distribution . . . advises

purchasers, users or anyone else in the possession or control of a product" of "certain activities [a

refund, a repair, or a replacement to consumer-owners at no cost] [that] should be undertaken

with respect to such product."42

Recalls are an indispensible aspect of product liability, as they

36

Id. at 1. 37 Ezroj, supra note 2, at 475 38 Ezroj, supra note 2, at 475. 39 Fiscal Year 2015 Budget Overview, National Highway Traffic Safety Administration, 2014, Web.

<http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CB4QFjAA&url=http%3A%2F%2F

www.nhtsa.gov%2Fstaticfiles%2Fadministration%2Fpdf%2FBudgets%2FFY2015_NHTSA_Budget_Justification.pdf&

ei=V1VIVO3KBMOuyATSp4KQCg&usg=AFQjCNGPgJN4b4yStiQaY7NwDPMHr4kigQ&sig2=oXceX5XnA8D6flAExUPJE

A&bvm=bv.77880786,d.aWw>.

40 Ezroj, supra note 2, at 475, 476. 41 Anita Bernstein, Voluntary Recalls, U. Chi. Legal F., 359, 362 (2013). 42 Id. at 362.

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CB4QFjAA&url=http%3A%2F%2Fwww.nhtsa.gov%2Fstaticfiles%2Fadministration%2Fpdf%2FBudgets%2FFY2015_NHTSA_Budget_Justification.pdf&ei=V1VIVO3KBMOuyATSp4KQCg&usg=AFQjCNGPgJN4b4yStiQaY7NwDPMHr4kigQ&sig2=oXceX5XnA8D6flAExUPJEA&bvm=bv.77880786,d.aWw






protect the health and safety of consumers. Many companies engage in voluntary recalls to

protect their customers and improve their organization’s reputation. However, when companies

fail to recall products that are potentially dangerous, the NHTSA can step in and enforce safety

measures.43

III. Legal Issues at Stake: Product Liability

When considering automotive litigation and regulation, one of the key legal issues at stake is

product liability. Product liability is “the liability of any or all parties along the chain of manufacture of

any product for damage caused by that product.”44 Product liability assumes strict liability, meaning a

defendant is liable when it is shown that the product is defective, regardless of the “degree of

carefulness [exhibited] by the defendant.”45 Essentially, a manufacturer is responsible for any damages

caused by a defect in their product, regardless of the level of safety precautions that went into creating

the product.

i. Contract and Tort Law

Product liability falls within the realm of contract and tort law, as it deals with the damage of

property or a breach of warranty.46 Contract law is “the law of legally enforceable promises.”47 A tort is

“a civil wrong other than a breach of contract,” and tort law “protects and compensates owners through

private civil lawsuits when their resources, including those they have in themselves, are wrongfully

43 Id. at 364. 44 Products Liability Law: An Overview, Cornell University Law School Legal Information Institute,

<http://www.law.cornell.edu/wex/products_liability>.

45 Id. at 1. 46 Ezroj, supra note 2, at 480. 47 O. Lee Reed, Marisa Anne Pagnattaro, Daniel R. Cahoy, Peter J. Shedd, Jere W. Morehead, The Legal and

Regulatory Environment of Business Sixteenth Edition 781 (2013).



harmed by the actions of others.”48,49 When an individual purchases a car, the car usually comes with a

warranty, which is “an assurance, promise, or guarantee by one party that a particular statement of fact

is true and may be relied upon by the other party,”50 or “a guarantee given on the performance of a

product or the doing of a certain thing.”51 In the case of automotive warranties, the warranty guarantees

the safe and correct performance of the car. If the car fails to live up to the safety guarantee in the

warranty, the owner can hold the seller to the promise in the warranty under contract law. Car owners

are also protected under tort law if a car fails to perform standard safety duties, and this failure injures a

person or their resources. Punitive damages can be awarded to victims of crashes in which an

automotive defect or failure to implement a safety feature is a cause of the accident.52

IV. Regulation Within the Auto Industry

i. Benefits of Self-Regulation

Currently, the automotive industry is under multiple forms of regulation, including self-

and governmental regulation. Governmental regulations are “restraints imposed upon firms” that

are enforceable by law.53

These regulations seek to protect fundamental rights and the health of

the general public, benefit the wellbeing of other stakeholders, and exert pressure on

48

Id. at 801. 49

Id. at 10. 50

Warranty, West’s Encyclopedia of American Law, (2008) <http://legal-

dictionary.thefreedictionary.com/warranty>.

51 Lloyd Duhaime, Warranty Legal Definition, Duhaime.org. Web.

<http://www.duhaime.org/LegalDictionary/W/Warranty.aspx>.

52 Ezroj, supra note 2, at 485. 53 John W. Maxwell, Thomas P. Lyon, and Steven C. Hackett, Self-Regulation and Social Welfare: The Political Economy of Corporate Environmentalism, 43 University of Chicago Law School Journal of Law and Economics, 583, 584 (2000). <http://www.jstor.org/stable/pdfplus/10.1086/467466.pdf?acceptTC=true&jpdConfirm=true>.

http://legal-dictionary.thefreedictionary.com/warranty

http://legal-dictionary.thefreedictionary.com/warranty



organizations “to address concerns overlooked by the industry.”54

Self-regulation, on the other

hand, is “a regulatory process whereby an industry-level organization (such as a trade association

or a professional society), as opposed to a governmental- or firm-level, organization sets and

enforces rules and standards relating to the conduct of firms in the industry.”55

Self-regulation

often occurs in light of “the threat of excessive governmental regulation.”56

Self-regulation is a

vital part of any industry, and in many cases, it can be very beneficial. Those who create

products or offer services “are [often] best equipped to establish rules and ethical guidelines

because [they] have a comprehensive understanding of the industry,” meaning that regulations

are often better targeted to industry concerns.57

Performance-based regulations can spark

“innovations that benefit consumers, producers, and society,” increase the competitiveness

between firms, and establish best practices.58

Self-regulation also helps improve the reputation of

an industry, because producers build trust with consumers by conducting their business in an

honest and transparent way.59

Furthermore, an industry that is self-regulated “has the ability to be

proactive and address issues before they become larger problems” by enforcing up-to-date safety

standards on all businesses in an industry, not just an individual company.60

ii. Disadvantages of Self-Regulation

As stated above, there are many benefits to self-regulation within an industry. Many use

these benefits as supporting reasons to reduce governmental regulation, arguing that

54

Daniel Castro, Benefits and Limitations of Industry Self-Regulation for Online Behavioral Advertising, The

Information Technology and Innovation Foundation, December 2011, at 9. Web. <http://www.itif.org/files/2011-

self-regulation-online-behavioral-advertising.pdf>.

55 Id. at 3. 56

Id. at 3. 57 Peter Biscardi, The Time for Self-Regulation is Now, Providers & Administrators Magazine, January 4, 2010. Web. < http://pa-magazine.com/view-from-the-top/the-time-for-self-regulation-is-now/>. 58 Castro, supra note 24, at 3. 59 Biscardi, supra note 27, at 1. 60 Biscardi, supra note 27, at 1.



“governmental interference generates enormous public costs and yields questionable benefits.”61

This laissez-faire approach places regulation responsibilities on “the auto manufacturers

themselves.”62

However, recent cases have called into question the reliability of self-regulation

in the auto industry. The most current case is that of GM and its defective ignition switches, “the

worst safety crisis in [GM’s] nearly 106-year history.”63

To date, “at least 29 people have died

and 27 people have been seriously injured in crashes involving General Motors cars with

defective ignition switches.”64

The ignition switches “can slip out of the ‘on’ position, which

causes the cars to stall, knocks out power steering, and turns off the air bags.”65

Millions of cars

have been recalled due to the issue. During testing in the early 2000s, GM engineers were aware

of what they believed were only minor issues with the ignition switches in multiple car models.

However, officials cancelled the redesign of the product, claiming “the fix was too costly,”

although it would have cost less than a dollar per car to fix. 66,67

This fatal decision could have

been easily avoided with a few extra dollars and further testing and investigation into the ignition

switch issues.

The issue at stake is not just that GM’s faulty product has caused the deaths of over 29

61 Joan Claybrook and David Bollier, The Hidden Benefits of Regulation: Disclosing the Auto Safety Payoff, 3 Yale J.

on Reg., 87, 90 (1985).

62 Id. at 91, 92.

63 Bill Vlasic, Victims of Defective G.M. Ignition Switches Begin Filing Claims, The New York Times, August 1, 2014.

Web. <http://www.nytimes.com/2014/08/02/business/victims-begin-filing-claims-in-gm-case.html?_r=1>.

64 Deaths Linked to Faulty GM Ignition Switches Rise to 29, NBC News, October 20, 2014. Web.

<http://www.nbcnews.com/storyline/gm-recall/deaths-linked-faulty-gm-ignition-switches-rise-29-n229881>.

65 Id. at 1. 66 Peter Valdes-Dapena and Tal Yellin, GM: Steps to a Recall Nightmare, CNN Money, 2014. Web.

<http://money.cnn.com/infographic/pf/autos/gm-recall-timeline/>.

67 David Stout, Amount GM Saved Per Car by Using Lethal Ignition Switch: About $1, Time, April 2, 2014. Web.

<http://time.com/46483/gm-recall-ignition-switch-1/>.



people and the injury of many more, but that the company “knew about faulty ignition switches

in Chevrolet Cobalts and other small cars for more than a decade but didn’t recall [the cars] until

February [2014].”68

GM’s company culture promotes this negligent attitude; a past employee

characterized the corporate climate as the “GM nod,” describing countless situations “in which a

room of officials collectively nodded in agreement to a plan of action but never executed it.”69

GM has a history of disregarding the safety of its customers. In 1965, General Motors spent only

$1 million of its $1.7 billion profit to fund external automobile accident research, and “the total

auto industry expenditure that year for internal research and development of crash safety

improvements was estimated at only $2 million.”70

This lack of safety funding and reluctance to

spend less than a dollar per car to fix a fatal flaw exemplifies the casual and careless attitude

towards safety that continues to plague our country’s auto industry.

While the immediate costs of additional safety measures might seem like a burden to auto

companies, the total economic and human cost of failed or lacking safety measures is much

greater than the additional dollar per vehicle GM could have spent to spare the twenty-nine lives

lost due to the company’s negligence. In the twentieth century alone, more than two million

people died and over 100 million were injured through the use of motor vehicles, “a total that is

more than three times the combat losses suffered by the United States in all wars.”71

In addition

to this gruesome human toll, the economic impact of unsafe auto design is huge: Toyota alone

paid out more than $1.6 billion in settlements to victims of its unintended acceleration issues.72

68

NBC News, supra note 34 at 1. 69 Rebecca Robbins, General Motors Legal Team Comes Under Fire at Senate Hearing, The Washington Post, July

17, 2014. Web. <http://www.washingtonpost.com/business/economy/general-motors-legal-team-comes-under-

fire-at-senate-hearing/2014/07/17/0c87c154-0dd6-11e4-b8e5-d0de80767fc2_story.html>.

70 Claybrook and Bollier, supra note 31 at 95. 71 Claybrook and Bollier, supra note 31, at 92. 72 Ezroj, supra note 2, at 470.



GM has already paid out $35 million in fines to the NHTSA, the maximum fine allowed in this

situation, and it has also created a compensation fund to pay its victims and their families.73

There is no cap on the potential awards GM will pay out, and they are currently looking at

hundreds of millions of dollars in damages.74

For one victim alone, a ten-year-old paraplegic, the

lifetime cost of accommodations and medical treatments will total about $32 million.75

This

severe economic aftermath of GM’s negligence has challenged the company’s history of apathy.

GM’s CEO, Mary Barra, recently made a statement regarding the company’s new attitude:

“Today, if there is a safety issue, we take action. If we know there is a defect, we do not look at

the cost associated with it, we look at the speed at which we can fix the issue.”76

V. Reflection & Conclusion

The prevailing economic and human costs of failed automobile safety measures challenge

the effectiveness of self-regulation in an industry with such significant safety responsibilities,

and also challenge the effectiveness of the current level of government regulation. The lawsuit

against Toyota’s unintended acceleration issues and the case against General Motors demonstrate

“the inability of the primary regulatory agency, the National Highway Traffic Safety

Administration, to independently motivate the adoption of state-of-the-art safety technology or

adequately penalize manufacturers with fines limited in both scope and amount.”77

For

73 Michael A. Fletcher and Rebecca Robbins, GM Offers Millions to Compensate Some Ignition Switch Victims,

Families, The Washington Post, June 30, 1014. Web.

<http://www.washingtonpost.com/business/economy/gm-offers-millions-to-compensate-some-ignition-switch-

victims-families/2014/06/30/032d45c0-ffbc-11e3-8572-4b1b969b6322_story.html>.

74 Id. at 1. 75 Id. at 1. 76 Randy Conat, GM CEO Testifies Before Congress About Delayed Recall, ABC News, April 1, 2014. Web.

<http://www.abc12.com/story/25133759/gm-ceo-testifies-before-congress-about-delayed-recall>.

77 Ezroj, supra note 2, at 471.

http://www.washingtonpost.com/business/economy/gm-offers-millions-to-compensate-some-ignition-switch-victims-families/2014/06/30/032d45c0-ffbc-11e3-8572-4b1b969b6322_story.html

http://www.washingtonpost.com/business/economy/gm-offers-millions-to-compensate-some-ignition-switch-victims-families/2014/06/30/032d45c0-ffbc-11e3-8572-4b1b969b6322_story.html



manufacturers, “even an expensive recall is understood as cheaper than liability…[and] in the

aggregate, recalls are also cheaper for manufacturers than compliance with safety standards.”78

Time and time again, as demonstrated by Firestone, Toyota, GM, and countless other automobile

product liability cases, cost considerations are placed before passenger safety. While NHTSA has

brought many significant improvements to American automobile safety, its ability to convey and

enforce the dire importance of vehicle safety is far from perfect. Even in the 21st century, a

century after the first American automobile product liability case against Buick, manufacturers

would still rather skimp on initial costs and pay out damages instead of spending more up front

to improve safety measures. This careless attitude in an industry that significantly affects the

daily lives of almost all Americans is simply unacceptable. Clearly, self-regulatory measures

within the industry and NHTSA measures have failed to convince manufacturers of the

economic, ethical, and legal benefits of increased safety measures. The current “legal strictures

that guide the actions of corporate boards of directors” simply do not “provide sufficient

protection to consumers or shareholders of these large institutions.”79

In conclusion, greater

industry and governmental regulations, as well as a more defined sense of industry ethics and

morals, need to be put in place and regularly enforced in order to decrease costs to the American

public and ultimately protect the lives and wellbeing of passengers.

78 Berstein, supra note 11, at 360. 79 Brian Allen Warwick, Reinventing the Wheel: Firestone and the Role of Ethics in the Corporation, 54 Ala. L. Rev.,

1455 (2003)



FEATURED GUEST ARTICLE



The Upside of the Lid Blowing Off:

How One Letter Changed the Landscape of Campus Sexual Violence

Kate Lawson80

Title IX of the 1972 Education Amendments (“Title IX”) 81

is the federal civil rights law

stating “No person in the United States shall on the basis of sex be excluded from participation

in, be denied the benefits of, or be subjected to discrimination under any education program or

activity receiving federal financial assistance.” For nearly forty years after its passage most

people had never heard of Title IX and those who did equated it primarily with gender equity for

women’s sports.

That perception was shaken to its core when, amid a growing din from students who had

had been sexually assaulted on campuses nationwide and sexual violence survivor advocates

vocalizing their frustration with how schools handled (or mishandled or did not handle at all)

student on student sexual violence, the United States Department of Education’s Office for Civil

Rights (OCR) took action. On April 4, 2011, OCR, the enforcement agency for Title IX, issued

its now infamous Dear Colleague Letter (“2011 DCL”) 82

to all federally funded education

programs. This letter announced no new law or regulations- it simply reminded schools of what

had been in Title IX all along: that under the umbrella of prohibited sex discrimination falls

student on student sexual harassment and sexual violence, and schools must meet their

obligations under the law to address that issue.

The 2011 DCL addressed the basics of schools’ obligations to address student on student

sexual violence, such as a school’s obligation to 1) widely disseminate an easily understood and

accessed nondiscrimination notice; 2) designate at least one employee to coordinate its Title IX

80 Kate Lawson graduated from Ohio University in 1998 and Suffolk University Law School in 2006. She has served

as Xavier’s Title IX Coordinator since July 2013. 81

Title 20 U.S.C. §§ 1681-1688. 82 Assistant Secretary for Civil Rights Russlynn Ali, Dear Colleague Letter (April 4, 2011), online at

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf



compliance; and 3) to adopt and publish grievance procedures providing for prompt and

equitable resolution of sexual violence complaints, as well as the more complex topics, such as

1) what level of training personnel investigating and adjudicating these complaints should have;

2) the difference and interplay between a school’s internal obligations under Title IX and the

criminal justice system response; and 3) what types of safety, housing, academic or other interim

measures a school must provide for a complainant while the complaint resolution process was

pending.

On the ground in universities and colleges across the country the 2011 DCL raised more

questions than answers and led to a flurry of activity, from holding campus wide listening

sessions to establishing task forces to assess campus response to sexual violence to making

personnel changes in response to these newly emphasized responsibilities. Soon the 2011 DCL’s

impact went beyond the gates of individual campuses and triggered a national conversation on

how campuses respond to sexual violence, with voices from all aspects of the issue weighing in-

students who had experienced sexual violence on campus and those who had been accused,

campus administrators, faculty, law enforcement, and lawyers and advocates from all angles. The

topics of campus sexual violence and Title IX became, and remain, a mainstay of mainstream

media outlets including the New York Times, Huffington Post, Time Magazine, and even

Rolling Stone.

In April 2014 OCR issued its next guidance document83

- fifty-three pages aimed at

addressing the multitude of questions raised by schools in the four years following the 2011

DCL. By this time the issue of campus sexual violence had made its way to the very top,

83 Assistant Secretary for Civil Rights Catherine E. Lhamon, Dear Colleague Letter (April 29, 2014), online at

http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.

http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf



capturing the attention and focus of several members of Congress84

as well as the White House.

In January 2014, President Obama announced the formation of the White House Task Force to

Protect Students from Sexual Assault. By April 2014 that Task Force had released its first report

with recommendations on how campuses could best prevent and respond to sexual violence in

their communities.85

As the spotlight brightened, it also broadened, expanding out from campuses to focus on

OCR’s role and work in ensuring schools’ compliance with the law. Stakeholders on all sides

requested greater transparency from OCR on how the agency does its work and, in particular,

how many schools have been and are being investigated for non-compliance. OCR responded by

publishing that information and the public learned that, to date, approximately eight-five colleges

are under federal investigation by OCR for their response to sexual assault cases.86

High profile

cases, firsthand accounts from alleged victims and alleged perpetrators in various media outlets,

and an ever-increasing, vocal, media-savvy wave of student activism will likely keep the

spotlight on this critical issue impacting the lives of so many students across the country.

Importantly, although OCR and the national conversation has focused primarily on

student on student sexual harassment and sexual violence, the spotlight has allowed those of us

who do Title IX work on the ground to share with our campus communities that Title IX is even

broader than that- it protects employees of and visitors to our campus from sex discrimination; it

84 For example, United States Senator Claire McCaskill issued a survey to 440 four-year colleges and universities

the spring of 2014 and spear-headed the creation and publication of the subsequent July 9, 2014 report “Sexual

Violence on Campus: How too many institutions of higher education are failing to protect students,” online at

http://www.mccaskill.senate.gov/SurveyReportwithAppendix.pdf. 85 “Not Alone: the First Report of the White House Task Force to Protect Students from Sexual Assault,” online at

http://www.whitehouse.gov/sites/default/files/docs/report_0.pdf. 86 Tyler Kinkade, “85 Colleges are Now Under Federal Investigation For Their Response to Sexual Assault Cases”

(October 15, 2014), online at http://www.huffingtonpost.com/2014/10/15/colleges-federal-investigation-sexual-

assault_n_5990286.html.

http://www.mccaskill.senate.gov/SurveyReportwithAppendix.pdf

http://www.whitehouse.gov/sites/default/files/docs/report_0.pdf

http://www.huffingtonpost.com/2014/10/15/colleges-federal-investigation-sexual-assault_n_5990286.html

http://www.huffingtonpost.com/2014/10/15/colleges-federal-investigation-sexual-assault_n_5990286.html



affords rights to pregnant and parenting students; and protects transgender students experiencing

discrimination or harassment based on their gender identity.

As a campus administrator doing this work on the ground every day and charged with

leading Xavier University’s efforts to prevent and response to sex discrimination under Title IX,

I for one welcome the rigorous, passionate conversation and the heightened scrutiny. Increased

scrutiny opens the door for higher standards for us to strive toward for all of our students and

critical space in which best practices can involve.

I have seen firsthand how sexual violence impacts not just the lives of the students’ who

are directly involved, but the lives’ of their roommates, team members, friends, family, and

beyond. I have also seen firsthand how critical it is for a university to ensure that its policies to

addressing sex discrimination are not just written in a way that is equitable, fair, and impartial,

but are implemented that way every time by properly trained individuals. It is a privilege to lead

Xavier University’s efforts to ensure that our response to sex discrimination is not only

compliant with Title IX and best practices, but aligns with our vision that Xavier men and

women become people of learning and reflection, integrity and achievement, in solidarity for and

with others.




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