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Are Rules Effective Before Publication? Reflections on the D.C. Circuit’s Decision in Humane Society v. USDA
Get PDFSince at least 1980, there has been a documented increase in regulatory activity at the end of presidential terms, especially in the post-election period when the outgoing President’s successor is from the other party. This phenomenon has come to be known as “midnight regulation,” and the products of end-of-term legislative rulemaking are referred to as “midnight rules.” While a study I conducted for the Administrative Conference of the United States revealed that most midnight rules are routine,[1] some are not and are designed to project the agenda of the outgoing administration into the future and force the incoming administration to expend precious time and political capital on unwinding the last minute regulatory frenzy
Ghislaine Maxwell was found guilty. But did survivors get justice?
No full textMany view the guilty verdict in Ghislaine Maxwell’s sex trafficking trial as the end of the final chapter of this long, tragic saga. Survivors of Maxwell and Jeffrey Epstein’s sexual abuse expressed great relief after the news. “My soul yearned for justice and the jury gave me just that,” said Virginia Giuffre, a prominent victim of Epstein. Yet, despite the welcome result, Maxwell’s trial is likely not the end of the long, fraught road for survivors
The Remainder Effect: How Automation Complements Labor Quality
Get PDFThis paper argues that automation both complements and replaces workers. Extending the Acemoglu-Restrepo model of automation to consider labor quality, we obtain a Remainder Effect: while automation displaces labor on some tasks, it raises the returns to skill on remaining tasks across skill groups. This effect increases between-firm pay inequality while labor displacement affects within-firm inequality. Using job ad data, we find firm adoption of information technologies leads to both greater demand for diverse skills and higher pay across skill groups. This accounts for most of the sorting of skills to high paying firms that is central to rising inequality
Equivocal Originalism
Get PDFOriginalism is a term shrouded in ambiguity and ripe for equivocation. A recent article by Stephen Sachs in the Harvard Law Review tries to clarify the discussion by distinguishing between originalism as a decision standard, or a set of criteria for ascertaining the truth conditions for propositions, and a decision procedure, or a mechanism for ascertaining whether those truth conditions are satisfied in any given context. That is a helpful distinction, but it still leaves much room for multiple and confusing uses of the term originalism. Jumping off from comments on Professor Sachs\u27s article by Mitchell Berman and Judge Andrew Oldham, I suggest that a more basic distinction between originalism as a positive theory of interpretation, or the ascertainment of communicative meaning, and originalism as a normative theory of action, or a prescription for decision-making is crucial to clear and productive discussion of originalism. Once one keeps focus on those two distinct enterprises, one sees the contours of distinct research agendas that may be difficult to fit together. Originalism-as-interpretation and originalism-as-adjudication ask very different questions and may well call for application of different skill sets, decision procedures, evidence sets, and standards of proof The problems in linking those enterprises (and never mind the problems of executing either enterprise) may explain why originalist scholarship has not been as useful to originalist judges as jurists like Judge Oldham would like
Green, or Greed? A Fresh Perspective on the Valuation of Conservation Easements
Get PDFCharitable contributions of conservation easements have since 1980 allowed high-income taxpayers to shelter income from taxation through overvalued deductions. Overvaluation has increased dramatically in the past 20 years: a 2016 study of all easement decisions since 1980 reported that while overvaluation had averaged by a factor of two before 1994, it averaged by a factor of ten for decisions between 1994 and 2016. SOI data disclose that aggregate easement contributions deducted on Schedule A grew from 6.5 billion in 2018 (the most recent year available). A recent report by supporters of conservation easements acknowledges that neither the [IRS] nor the courts have sufficient resources to effectively police valuation abuse. /= / \u3e/= / \u3eMost of the concern has been with syndicated conservation easements ( SCEs ), and most proposed remedies to easement overvaluation focus on SCEs. We show, however, that exactly the same traits that produce overvalued SCEs -- allowing charitable deductions based on fair market value, which sanctions deducting unrealized appreciation without taxing the corresponding gain, combined with the unavoidable need to value contributed easements through as manipulable a process as appraisal -- have facilitated abusive overvaluation of non-syndicated easements too. That combination can leave an easement contributor better off than if she had done anything else with the land, including selling it for its (true) fair market value. The only effective solution to easement overvaluation is to restrict the deductibility of easement contributions attributable to unrealized gain. To that end we propose limiting charitable contributions of easements granted with respect to recently acquired property initially to cost, much as Congress has previously done with other contributions of appreciated property that are vulnerable to abuse, while allowing that limitation to evolve with real estate values over time. We also propose an upfront excise on unrealized appreciation in contributed easements, to increase the salience to prospective contributors of the risks of overvaluation.
From published article:
Congress has long been aware of the general susceptibility of the appreciated property rule to abuse. 34 It has acted to cabin that vulnerability primarily (but not entirely) with palliative administrative controls and valuation penalties levied only after the fact. 35 But conservation easements are so uniquely prone to manipulation, and to exploiting the appreciated property rule beyond any reasonable limit, that those controls, even after enactment of § 170(h)(7), and even if supplemented by additional administrative requirements such as those recently proposed by Burnett, Leshy, and McLaughlin, will not prove adequate to the task.36 Any serious effort to halt excessive valuation of conservation easements will require more fundamental reform.
In Part I we outline the foundation for that claim. In Part II we explore in more detail the background to and central nature of the problem, and its manifestation in some more recent decisions. The cases we survey underscore that, despite all the criticism, the IRS has to this point been proceeding in a reasonable fashion given the tools available to it. The cases also help to highlight in greater detail the shortcomings in previously suggested administrative approaches. Part III takes up more generally the topic of reform. Parts III.A-B address proposed legislative solutions, including newly-adopted § 170(h)(7). Part III.C returns to the role of the appreciated property rule, and its implications for successful reform. We elaborate in Part III.D on the proposals we offer to expand on and buttress § 170(h)(7). We believe that, if adopted, they would lead to a more effective and comprehensive solution to the problem of overvalued conservation easements, while leaving intact the basic structure and incentives of the existing deduction, shorn of its vulnerability to overvaluation
Trust, Brutality, and Human Dignity: How “Partial Birth Abortion” Helps Shape American Biopolitics
Get PDFIn this Article, I explore how nearly continuous public rhetorical challenges to abortion in the political realm first led the public and the courts to turn away from a particular abortion procedure (intact dilation and extraction, also known as partial-birth abortion) which political agitators labeled as “barbaric” and then to view physicians who performed abortions not as legitimate professionals, but simply as “abortionists,” and sometimes as evil “Frankensteins.” “Abortionists” use no “medical judgment” and are unworthy of deference by state legislatures, Congress, or the courts when deciding how or when to perform an abortion. The concentration on the welfare of fetuses and the actions of physicians permitted the abortion debate to bypass discussion of both the rights and welfare of pregnant patients, including their right to health, and to virtually never mention that abortion restrictions primarily affect people in poverty who cannot afford to seek reproductive health care, including an abortion, by traveling to a nonrestrictive state. Understanding the power of extreme rhetoric, including the use of social media in political campaigns and the use and misuse of concrete terms such as murder, infanticide, brutality, and dismemberment, and abstract concepts such as “human dignity,” can help us plot a post-Dobbs way forward. Perhaps the demise of Roe can lead to a birth of a new rhetoric on abortion, one that concentrates on the right to health of everyone, including the right to make reproductive decisions, and requires moving abortion back into the realm of contemporary medicine, complete with a meaningful doctor-patient relationship protected by privacy and financed in a way that is accessible to all pregnant patients
E-Racing Tobacco & Nicotine-Related Health Disparities
Get PDFIn the past, tobacco companies used targeted advertising to integrate menthol cigarettes and addict the Black community, generating tobacco-related health disparities. As Juul has come under attack, they have utilized the tobacco playbook to protect itself and deflect criticism by donating to a historically Black medical school and recruiting leaders in the Black community. This helped to create a Black shield for menthol cigarettes, which are only now at risk of being regulated, and has the potential to do the same in the vape industry. If proactive steps are not undertaken, health tobacco-related health disparities will continue
Balancing Rights and Responsibilities: The Role of Government and Citizens in Combatting Gun Violence
No full textCongress passed the first federal legislation on firearms safety in decades at nearly the same moment that the Supreme Court issued its first major Second Amendment decision since 2008. It will take time to assess the effects of these actions on both gun safety and Second Amendment rights, but, with gun violence skyrocketing across the country, it is clear that finding a balance between rights and safety is desperately needed. The public is ill-equipped to protect itself against the broad harms of gun violence, so the government has a central role to play in addressing those harms and the racial disparities that come with them. Gun owners, too, must recognize their obligations to fellow citizens, not only to act responsibly with firearms, but to accept the limitations of their constitutional protections. An evidence-based path forward can be forged that mitigates the harm of gun violence while minimally burdening the rights and interests of those who own firearms