"So, I Have This Friend..."

John Osborn IV, KLJ Staff Editor^[1]

*The following is for informational purposes only and is not to be construed as legal advice.*

I used to work with a certain individual who had a “friend” who always seemed to be getting into some kind of legal trouble.  Knowing that I was in law school, this individual would often try to squeeze any legal advice out of me if he could, although he was generally unsuccessful.  However, on the rare occasion I did acquiesce (only after throwing out all of the appropriate caveats of “I’m not a lawyer,” and the like) I would try to tell this individual (so he could inform his “friend”) what the state of the law was as I understood it.Although many of the matters were criminal in nature, he did present one civil issue that I thought was interesting.  Apparently, my co-worker’s “friend” had recently purchased two luxury watches from a professional jeweler for around $10,000—we will call them “Folexes.”  The jeweler, whom had appraised the watches himself, had provided the friend with documentation stating that the two watches were genuine Folexes and were a “steal” at that price.” Little did the friend know the truth behind these words, as, unfortunately, due to a combination of the friend’s big mouth and a tendency to hang around unsavory characters, his two new Folex watches were stolen within a week.However, a few weeks after the theft, the friend received a phone call from the police that the watches had resurfaced at a local pawnshop.  Normally the friend would have been ecstatic, however, when he went to retrieve the watches, the pawnshop informed him that the Folexes were not genuine Folexes, and that any “professional” jeweler would clearly have known these were fake.  The watches, based on their melt value, were worth at best $1,000 for both.The question my co-worker had (on behalf of his “friend”) then was “can my friend sue the jeweler who sold him the watches?”  Of course, the immediate answer is “yes” because you can sue just about any one over anything.  However, the deeper issue would be (assuming the jeweler is not willing to accept a return for the watches) what do you sue for and what can you recover in a situation like this?My co-worker’s “friend” has several avenues to choose from as far as recovery goes.  He might consider suing under a basic theory of fraud or breach of warranty.  With fraud, the friend would argue that the jeweler made a fraudulent misrepresentation, ^[2] while with breach of warranty, the friend would argue that the jeweler made an affirmation of fact upon which he relied in making the purchase. ^[3]  Under a theory of fraud, the friend could recover “compensatory damages (likely expectations damages), plus all reasonable investigation and litigation expenses including attorneys’ fees where appropriate.”^[4] However, under a warranty theory, the friend will likely be limited to expectation damages, or the difference between the watches as promised or represented ($10,000), and the actual value ($1,000), equaling an award of $9000.^[5]Although the friend should not have any problems establishing common law fraud or breach of warranty, another vehicle of recovery available to him is the Kentucky Consumer Protection Act (KCPA).^[6]   When suing for a violation of the KCPA, a plaintiff need only prove that the seller engaged in “unfair, false, misleading or deceptive acts or practices in the conduct of any trade or commerce.”^[7] Moreover, under the KCPA, in addition to actual damages, the plaintiff may be able to recover punitive damages^[8] and even attorney’s fees.^[9]In short, my co-worker’s “friend” could probably sue the jeweler under several different theories, but the KCPA offers the easiest road to recovery and the best chance for him to be fairly compensated for the ordeal.  Hopefully, this experience will teach my co-worker’s “friend” to be more careful when making expensive purchases; however, I harbor doubts that he will do so . . .

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^[1]  J.D. expected 2016.

^[2] See Waldridge v. Homeservices of Ky., Inc. 384 S.W.3d 165, 171 (Ky. Ct. App. 2011).

^[3] U.C.C. § 2-313 (West, current through 2014 annual meetings of the National Conference of Commissioner on Uniform State Laws and American Law Institute).

^[4] Gibson v. Ky. Farm Bureau Mut. Ins. Co., 328 S.W.3d 195, 205 (Ky. Ct. App. 2010).

^[5] See Ky. Rev. Stat. Ann. § 355.2-714(2) (West, current through the end of the 2015 regular session).

^[6] See Ky. Rev. Stat. Ann. § 367.220(1) (West, current through the end of the 2015 regular session).

^[7] Ky. Rev. Stat. Ann. § 367.170 (West, current through the end of the 2015 regular session).

^[8] See Ky. Rev. Stat. Ann. § 367.220(1) (West, current through the end of the 2015 regular session).

^[9] See Alexander v. S & M Motors, Inc., 28 S.W.3d 303, 305 (Ky. 2000); see also Ky. Rev. Stat. Ann. § 367.220(3) (West, current through the end of the 2015 regular session).

A Brief History of Religious Freedom Restoration Acts

Kevin Nathaniel Troy Fowler, KLJ Staff Editor

In the last few weeks the state of Indiana has taken a pointed drubbing over state Senate Bill 101.¹ The Bill was comparable to other federal and state law(s) aimed at exempting actors, ranging from humans to business entities, from compliance with laws that hamper the free exercise of religion. Such laws, colloquially known as Religious Freedom Restoration Acts (RFRA(s)), generally place a burden on the government to show that the religion-burdening law serves a compelling interest, and that the law is narrowly tailored towards achieving that interest. Opponents of the law include several prominent industry leaders such as Apple Inc. CEO Tim Cook² and construction machinery enthusiast Miley Cyrus.³ Such challengers have come down hard against Indiana’s RFRA, contending that it provides bigots with a legal means of discriminating on the basis of sexual orientation under the guise of religious freedom. On the other hand its supporters, including Indiana Governor Mike Pence, have defensively retorted that the Indiana law has been grossly misconstrued and is based on a much less invidious purpose.  Neither side, however, has adequately addressed or explained the precedent and case law that gave rise to the Federal RFRA, nor in turn the plethora of State RFRAs that followed.Ground Zero of RFRAs is a case called Sherbert v. Verner.⁴ In 1963, the Highest Court in the Land considered Adell Sherbert’s claim that her exercise of religion had been violated. Sherbert was a textile-mill operator, and also a member of the Seventh-day Adventist Church. After several years on the job, her employer implemented a new policy which required Sherbert to come in on Saturdays. As this violated her religion, Sherbert refused to come to work on one particular Saturday, and was subsequently fired. After a meaningful job search which led to the realization that the task of obtaining another means to live by would be no scoop of ice cream, Sherbert filed for unemployment benefits which were denied because she had failed to accept “suitable work when offered”.⁵ In finding that the denial of unemployment benefits had violated Sherbert’s exercise of religion, the Court enunciated what is now the heart of all RFRA legislation: a law burdening the free exercise of religion must serve a compelling government interest, and the law must be narrowly tailored to achieving that interest.⁶For nearly two decades this was the standard for religiously burdensome laws, with the Supreme Court reaffirming Sherbert in a 1972 case called Wisconsin v. Yoder.⁷ That came to an abrupt end in 1990, when the Supreme Court decided Employment Division v. Smith.⁸ In Smith, two Native Americans had been fired for participating in a religious ritual that involved the use of peyote, an illegal drug. Similar to Sherbert, the two people sought unemployment benefits, and similarly, they were denied (essentially because they had lost their jobs for committing a crime). In changing course from the precedent established in Sherbert and reaffirmed by Yoder, the Supreme Court found that the denial of unemployment benefits in this case did not warrant strict scrutiny, and that "neutral law(s) of general applicability"⁹ not directly targeting the exercise of religion cannot be circumvented by claiming a religious exception.As a result, in 1993, Congress passed the Religious Freedom and Restoration Act, explicitly reestablishing the Sherbert and Yoder standard.¹⁰ In City of Boerne v. Flores,¹¹ the Court held the Federal RFRA was inapplicable to the states, which has prompted at least 31 states to enact or adopt their own RFRA requirement.¹² Knowing this contextual background of RFRA legislation is important to understanding its future developments, such as Indiana’s RFRA, as well as the discourse that may engulf it.

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¹ Editorial, Gov. Pence, Fix 'Religious Freedom' Law Now, Indianapolis Star, Mar. 31, 2015, at A1.

² Tim Cook: Apple Will Oppose Bills like Indiana’s ‘Religious Freedom’ Law, NBC News, (Mar. 29, 2015), http://www.nbcnews.com/news/us-news/tim-cook-apple-will-oppose-states-bills-indianas-religious-freedom-n332316.

³ See Daniel Kreps, Miley Cyrus Promises ‘New Rights Movement’ After Controversial Indiana Law, Rolling Stone (April 1, 2015), http://www.rollingstone.com/culture/news/miley-cyrus-promises-new-rights-movement-after-controversial-indiana-law-20150401; See also  Miley Cyrus, Wrecking Ball (RCA Records 2013).

⁴ 374 U.S. 398 (1963).

⁵ Id.

⁶ See id.

⁷ 406 U.S. 205 (1973).

⁸ 494 U.S. 872 (1990).

⁹ Id.

¹⁰ 42 U.S.C. § 2000bb.

¹¹ 521 U.S. 507 (1997).

¹² Juliet Eilperin, 31 States Have Heightened Religious Freedom Protections, The Washington Post (Mar. 1, 2014), http://www.washingtonpost.com/blogs/the-fix/wp/2014/03/01/where-in-the-u-s-are-there-heightened-protections-for-religious-freedom/.

State of Texas v. United States: Immigrant Status Hangs in the Balance for Millions

Tatiana Lipsey, KLJ Online Content Manager

DACA, DAPA, and Executive Action have been in the news a lot lately. While Deferred Action for Childhood Arrivals (DACA) is nothing new¹, on November 20, 2014, President Obama announced that the executive branch, in coordination with the Department for Homeland Security (DHS) would be taking many steps to “fix the broken immigration system.”² Part of this effort included expanding existing DACA, beginning February 18, to include more immigrants and increase the period of deferred action and work authorization from two to three years.³ The effort also included the creation of a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) set to begin in May.⁴ The President’s announcement has received a lot of attention, and not surprisingly, legal challenges.State of Texas, et al v. United States ⁵ was filed in federal district court in Brownsville, Texas, last December by twenty-six states. The suit challenged the above two aspects of the immigration initiatives that President Obama announced on November 20.⁶ The states argue that the programs are not lawful and will cause economic injury to states that must finance the education, protection, and issuance of driver’s licenses to future recipients of DACA or DAPA.⁷On February 16, 2015, the district court issued a preliminary injunction temporarily blocking the expansion of DACA and the implementation of DAPA.⁸ The ruling did not address the constitutionality of the programs. Rather, the narrow holding for the injunction focused on the whether the federal government violated procedural requirements under the Administrative Procedure Act by not following the formal rulemaking procedures in creating these initiatives.⁹ The court decided that the government had failed to follow appropriate procedure.¹⁰ DHS has stated that it will challenge the decision and believes that there is legal authority for the action.¹¹It could take months, or even years, for a final decision to be reached in the federal district court. In the meantime, the Department of Justice (DOJ) has requested that the Fifth Circuit Court of Appeals lift the injunction and allow expanded DACA and DAPA to go forward while the underlying lawsuit proceeds.¹² Oral arguments on the emergency stay of the injunction were scheduled for April 17.¹³If the injunction is lifted, DHS could immediately begin implementing both programs while the lower court case continues. However, if either side appeals to the Supreme Court, which is likely, it could take until sometime next year for a decision on the future of expanded DACA and DAPA to become clearer. This is a case that many immigration scholars, lawyers, and undocumented immigrants will be following closely. The case will undoubtedly have a significant impact whether the executive actions are ultimately found lawful or not.

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¹ DACA was created June 15, 2012, as a matter of prosecutorial discretion. See Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012), available at http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf. The program provides relief from removal and work authorization for a period of two years, which can then be renewed as long as the program remains in existence. Current guidelines state that DHS has the discretion to terminate DACA at any time, with or without a Notice of Intent to Terminate. Ilissa Mira, What to Expect When Expanded DACA Opens Again, CLINIC, https://cliniclegal.org/resources/articles-clinic/what-expect-when-expanded-daca-opens-again.

² Video: Remarks by the President in Address to the Nation on Immigration (Nov. 20, 2014), available at https://www.whitehouse.gov/issues/immigration/immigration-action#.

³ Fixing Our Broken Immigration System Through Executive Action - Key Facts; Department of Homeland Security, http://www.dhs.gov/immigration-action.

⁴ Id.

⁵ State of Texas, et al v. United States of America, et al., No. 1-14-CV-254 (D. Texas Feb. 16, 2015)(order granting preliminary injunction). Available at http://www.txs.uscourts.gov/notablecases/1-14-cv-254_145X20977588_0.pdf.

⁶ Mira, supra note 1.

⁷ Id.

⁸ Existing DACA, as it has existed since 2012, and renewals thereof, have not been affected by the injunction.

⁹ Mira, supra note 1.

¹⁰ State of Texas v. United States, No. 1-14-CV-254 at 123.

¹¹ Statement by Secretary Jeh C. Johnson Concerning the District Court's Ruling Concerning DAPA and DACA (Feb. 17, 2015), available at http://www.dhs.gov/news/2015/02/17/statement-secretary-jeh-c-johnson-concerning-district-courts-ruling-concerning-dapa.

¹² Mira, supra note 1.

¹³ Id.

Maintaining the Juvenile’s Right Against Self-Incrimination

Misty Stone, KLJ Staff Editor

Many people may be familiar with the Miranda[1] warnings, but how many of us truly understand them? Arguably, many adults do not understand the significance of their Miranda rights,[2] but what about juveniles whose brains are not yet fully functioning?  Research indicates only 21 percent of juveniles understand their Miranda rights.[3]Miranda is comprised of four main warnings that must be read to a person before custodial interrogation in order to protect their Fifth Amendment right against self-incrimination.[4] Those rights are that (1) he, the witness, has right to remain silent; (2) any statement made may be used as evidence him; (3) he has the right to an attorney; and (4) if he cannot afford an attorney, one will be appointed to him.[5]  Miranda adds, “The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.”[6]While a person must unambiguously invoke their right to remain silent or right to counsel,[7] the Court does not maintain the unambiguous requirement when it comes to waiving those rights. In North Carolina v. Butler, the Court held that waiver may be implied, as opposed to unambiguous, through “the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver.”[8] Thus, by merely answering a police officer’s question, the Court held the defendant “voluntarily, knowingly and intelligently”[9] waived his rights.[10] Thus, it is fairly easy to waive your Miranda rights. In fact, the Court held in Fare v. Michael C. that the validity of a juvenile’s waiver would be judged under the same test that applies to adults with the juvenile’s age as merely an ordinary factor in conducting the test. [11]However, juveniles are arguably more susceptible to self-incrimination because of “their eagerness to comply with adult authority figures, impulsivity, immature judgment, and inability to recognize and weigh risks in decision-making and appear to be at greater risk of falsely confessing when subjected to psychological interrogation techniques.”[12] In response to such risks, Illinois passed legislation mandating juveniles under thirteen have access to an attorney before they are interrogated in murder and sex crimes cases.[13] While a juvenile is not afforded this protection in all scenarios, the juvenile is awarded this protection in cases that are certainly the most damaging to the juvenile’s future.While many courts find that the presence of a parent will render a juvenile’s confession voluntary,[14] and there are certainly pros to that approach, it is arguably better to mandate that a juvenile have access to an attorney. This is because only 42.3% of adults understand the significance of their Miranda rights.[15] If the parent does not understand the Miranda rights, how can the child? Moreover, given that courts may easily find an implied waiver,[16] a lawyer should be available to explain to the juvenile exactly what his rights are and what they mean. With this safeguard, a juvenile is treated fairly by obtaining the information in order to “knowingly and intelligently” waive his Miranda rights.In sum, states should enact legislation similar to Illinois that mandates juveniles have access to an attorney before they are interrogated. Given that juveniles are more susceptible to submitting to adult authority figures and general impulsiveness,[17] as well as many other factors that make them more susceptible to self-incrimination, an attorney should be provided to all juveniles before they undergo custodial interrogation, at least in cases involving murder and sex crimes that are of an especially serious nature.

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[1] Miranda v. Arizona, 384 U.S. 436 (1966).

[2] Am. Psychological Ass’n, Right to Remain Silent Not Understood by Many Suspects (Aug. 5, 2011), http://www.apa.org/news/press/releases/2011/08/remain-silent.aspx (“Based on [Dr. Rogers’] analysis of nationwide statistics of 9.2 million arrests in 2009, he estimates that 976,000 arrests, or 10 percent of the cases, were compromised by problems with Miranda warnings. That estimate includes 360,000 arrests of adults with mental health disorders; 305,000 arrests of adults without mental health disorders; and 311,000 juvenile arrests.”).

[3] Thomas Grisso, Juvenile’s Capacities to Waive Miranda Rights: An Empirical Analysis, 68 Cal. L. Rev. 1134, 1153 (1980).

[4] Miranda, 384 U.S. at 441.

[5] Miranda, 384 U.S. at 444 (emphasis added).

[6] Id. (emphasis added).

[7] Davis v. United States, 512 U.S. 452, 459 (1994) (defendant failed to invoke his right to counsel because he did not do so “unambiguously”); Berghuis v. Thompkins, 560 U.S. 370, 389 (2010) (extending “unambiguously” standard to invoking the right to remain silent).

[8] North Carolina v. Butler, 441 U.S. 369, 373 (1979).

[9] Miranda, 384 U.S. at 441.

[10] Butler, 441 U.S. at 372.

[11] Fare v. Michael C., 442 U.S. 707, 725 (1979). But see J.D.B. v. North Carolina, 180 L. Ed. 2d 310 (2011).

[12] Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C.L.Rev. 891, 1005 (2004).

[13] Id.

[14] See In re Andrew M., 88 P.3d 552, 555 (Ariz. 2004); In re B.M.B., 955 P.2d 1302, 1311-12 (Kan. 1998); Commonwealth v. A Juvenile, 449 N.E.2d 654, 656 (Mass. 1983); State v. Presha, 748 A.2d 1108, 1113 (N.J. 2000).

[15] Grisso, supra note 3, at 1153.

[16] See Butler, 441 U.S. at 372.

[17] Drizin, supra note 12.

Balancing Public Demand with Due Process: What the University of Oklahoma’s Actions Say about Our Society

Bardia Sanjabi, KLJ Staff Editor

What happens when interest in protecting a fundamental right clashes with general public opinion? Do the Constitution and our legal system kneel to what is and is not socially acceptable? The answer to these questions has become increasingly blurry in light of recent events.In March, a leaked video displayed members of the Oklahoma chapter of the Sigma Alpha Epsilon fraternity singing a racist chant on a bus.[1] The University’s response to the video was swift and unforgiving, as it severed ties with the fraternity and expelled two of its members implicated in the video just two days after it was leaked.[2] This action drew attention from constitutional law experts, who raised the issue of whether the expulsion of the members was a violation of their First Amendment rights because it was an act by a government funded state institution.[3]The University, which as a public institution cannot discriminate on the basis of race, will likely justify its actions under its Student Rights and Responsibilities Code, where it lists “abusive conduct” under “prohibited conduct.”[4] Abusive conduct is defined as “unwelcome conduct that is sufficiently severe and pervasive that it alters the conditions of education or employment and creates an environment that a reasonable person would find intimidating, harassing or humiliating.”[5]Unfortunately for the University of Oklahoma, freedom of speech is a fundamental right under the Bill of Rights, and any policy by the state that may hinder this right will come under the purview of strict scrutiny within the courts.[6] There is a strong argument to be made that the chant on the bus, as bigoted as it may have been, remains protected speech by private individuals. Many scholars, including the UC Irvine law school dean Erwin Chemerinsky, seem to be of the opinion that should the expelled members file suit against the University, they will have an “excellent chance” of succeeding.[7]What is most concerning about this situation, however, is the immediateness and severity of the University’s response. It seems that our society places higher value on intolerance towards bigotry than the due process of our laws. This issue is also apparent in the recent developments of the Mike Brown shooting incident in Ferguson, MO. On March 4^th, the Department of Justice released a report that specified they will not be prosecuting Officer Wilson for the shooting due to lack of corroborated eyewitness testimony.[8] No reliable source can confirm that Brown indeed raised his hands in a gesture of surrender, which was a key aspect of the nationwide movement covered by the media demanding justice for Brown’s death.[9]It is important to acknowledge that prejudice and hate crimes are still noteworthy issues in today’s society. Solving these issues, however, may best be dealt with in a calculated and forethoughtful manner. Emotional overreactions, while satisfying the public’s demand for swift justice, are not stable solutions. Just as the investigation of Brown’s shooting yielded no evidence to prosecute Officer Wilson, the expulsion of the two Oklahoma fraternity members may be reversed should they pursue to challenge the University’s decision on Constitutional grounds.

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[1] Terrence McCoy, Why Expelled Oklahoma Frat Boys Would Have an ‘Excellent Chance’ in Court, Wash. Post (Mar. 11, 2015), http://www.washingtonpost.com/news/morning-mix/wp/2015/03/11/expelled-oklahoma-students-have-an-excellent-chance-of-succeeding-if-they-sue.

[2] Id.

[3] Id.

[4] University of Oklahoma Board of Regents, Student Rights and Responsibilities Code 3 (Sept. 19, 2011), available at http://www.ou.edu/content/dam/studentlife/documents/AllCampusStudentCode.pdf.

[5] Id.

[6] Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (citing Carey v. Brown, 447 U.S. 455, 461 (1980)).

[7] McCoy, supra note 1.

[8] Trymaine Lee, Justice Department Clears Darren Wilson in Michael Brown Killing, Msnbc (Mar. 4, 2015, 6:55 PM), http://www.msnbc.com/msnbc/justice-department-clears-darren-wilson-michael-brown-killing.

[9] Matthew Balan, Surprise: CNN Reports 'Hands Up, Don't Shoot' is Based on Falsehood, Cnn (Mar. 6, 2015, 11:31 PM), http://newsbusters.org/blogs/matthew-balan/2015/03/06/surprise-cnn-reports-hands-dont-shoot-based-falsehood.

Do Ice Bucket Challenge Donations Lack the “Donative Intent” Necessary to be Tax-Deductible?

Mary Ellen Wimberly, KLJ Staff Editor[1]

In the summer of 2014, the ALS Ice Bucket Challenge took social media by storm. The premise was simple: those nominated to complete the challenge had to either pour a bucket of ice cold water on themselves or give $100 to the ALS Association.[2] Many chose to make donations in addition to participating in an icy shower. The challenge raised awareness for amyotrophic lateral sclerosis (ALS), often called Lou Gehrig’s Disease, and also resulted in donations of $115 million to the ALS Association.[3]Many taxpayers will deduct these charitable contributions on their federal income tax returns without thinking about whether these contributions qualify for a deduction. While Section 170 of the Internal Revenue Code generally allows deductions for charitable contributions[4], courts have interpreted the provision to also require “donative intent.” This requirement may limit the deductibility of those ALS Ice Bucket Challenge donations that were contributed because the participant wanted to avoid a cold shower.The test for donative intent in charitable contribution cases comes from the landmark case Commissioner v. Duberstein, which established the intent required by a transferor in making a “gift” for income tax purposes.[5] The U.S. Tax Court has consistently applied the Duberstein test in determining the donative intent requirement for charitable contribution cases,[6] and has noted that in determining whether a charitable contribution qualifies under § 170, “the term ‘charitable contribution’ is synonymous with the word ‘gift.’ ”[7] Therefore, to satisfy donative intent, the taxpayer’s charitable contribution must be made with detached and disinterested generosity and without the expectation of receiving something in return.[8] The Tax Court further delineated the test in DeJong v. Commissioner and stated that “[i]f a payment proceeds primarily from the incentive of anticipated benefit to the payor beyond the satisfaction which flows from the performance of a generous act, it is not a [charitable contribution].”[9]However, courts have generally interpreted the “donative intent” test liberally and in recent years have added a “quid pro quo” requirement, which provides that donative intent is lacking only when the donor anticipates receiving an actual financial benefit from the charitable contribution.[10] Consequently, because those who chose to forego the cold shower and opted to make a donation instead gained no financial benefit, those taxpayers should be able to correctly claim a deduction for a charitable contribution under Section 170.

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[1] J.D. expected May 2016.

[2] Meg Tirrell, Ice Bucket Challenge: 6 Months Later, CNBC (Feb. 9, 2015, 8:26 AM), http://www.cnbc.com/id/102405889.

[3] The ALS Ice Bucket Challenge, ALS Association, http://www.alsa.org/fight-als/ice-bucket-challenge.html (last visited Mar. 29, 2015).

[4] 26 U.S.C. § 170 (2012).

[5] Commissioner v. Duberstein, 363 U.S. 278, 285 (1960).

[6] See Rodney P. Mock, Burning Down the House and the Charitable Deduction, 11 Hous. Bus. & Tax L.J. 353, 360 n.41 (2011).

[7] DeJong v. Commissioner, 36 T.C. 896, 899 (T.C. 1961).

[8] Duberstein, 363 at 285.

[9] DeJong, 36 T.C. at 899.

[10] See generally Tony Nitti, Could the IRS Disallow Ice Bucket Challenge Charitable Contributions?, Forbes (Aug. 20, 2014, 9:24AM),  http://www.forbes.com/sites/anthonynitti/2014/08/20/could-the-irs-disallow-ice-bucket-challenge-charitable-contributions/.