Hauptman-Woodward Medical Research Institute
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Borrowing as Realization: Taxing Billionaires\u27 Unlocked Gains
Full text linkShould billionaires be able to live large by borrowing against appreciated assets? By holding and not selling the appreciated assets, billionaires pay no taxes on the wealth unlocked through the borrowing. This feat is accomplished by relying on the interplay of two fundamental principles of the U.S. federal income tax system. First is the principle of “realization.” Whether or not this principle has a constitutional foundation, which is hotly debated, the current tax system requires that, except in very limited circumstances, a gain is taxed only if it is “realized” through a sale, exchange, or other disposition of the asset. As long as the taxpayer retains the asset, any appreciation in the asset’s value is known as “unrealized” gain. The second principle is that borrowed funds are not considered to be income and therefore cannot be subject to income taxation. The foundation of this principle is even more fundamental: in order to have income, a taxpayer must enjoy dominion over an “accession to wealth.” Because the “accession” to borrowed funds is fully offset by an obligation to repay those funds, the conventional wisdom is that there is no “wealth” to which the taxpayer can accede When appreciated property is given as collateral for borrowing, the foundations underlying both of these principles are radically undermined. By pulling out cash that can be used for any purpose, the taxpayer has taken full advantage of the asset’s appreciation. This should clearly be considered a realization event, regardless whether the concept has constitutional underpinnings. And there can be no question that holding property that has increased in value is an accession to wealth, regardless whether it is sheltered from taxation by the realization requirement. Even though the taxpayer (or the taxpayer’s heir) has an obligation to eventually pay back the loan, taking cash out against appreciation in asset value is clearly a real and immediate monetization of that wealth. This Article advocates that Congress amend the Internal Revenue Code to make borrowing against substantial asset appreciation a taxable event
One Hundred Ninety-Nine Dead Birds: Review of the Scientific Basis of Ecological Incident Reporting Requirements for Pesticide Registrants under Fifra § 6(A)(2)
No full textThe U.S. Environmental Protection Agency (EPA) regulates pesticide use in the United States. The EPA is charged by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) with ensuring that a pesticide will not cause unreasonable adverse effects on the environment. Incident reports (documentation of exposure and injury from pesticide applications) can serve as a reality check on the pesticide registration decisions made by the EPA scientists and risk managers. The EPA collects incident reports on human, domestic animal, and ecological injury. The FIFRA section 6(a)(2) rule requires the pesticide registrant (generally, the company or other entity that wishes to market the pesticide, hereafter registrant) to submit such data to the EPA.
The EPA’s ecological incident category includes injuries to aquatic (fish), terrestrial (wildlife), other non-target organisms (ONT, e.g., invertebrates) and plants. Our document focuses on the fish and wildlife ecological incidents that are submitted by registrants. We critique the application of the FIFRA section 6(a)(2) rule that controls the quality and quantity of ecological incident data that the EPA receives from registrants. We conclude that the section 6(a)(2) provisions can impede the transfer of ecological incident data from registrant to the EPA. Consequently, detailed data for many fish and wildlife incidents may never reach the EPA, and policies and decisions may be formulated in the absence of these data
In Keeping With \u3cem\u3eHeller\u3c/em\u3e
No full textEvaluating the constitutionality of modern firearm regulations under the Second Amendment requires recourse to historical evidence under Bruen v. New York State Rifle and Pistol Association. Generally, the government bears the burden to demonstrate that modern firearm regulations are consistent with the nation’s historical traditions. But the Supreme Court’s earlier opinion in District of Columbia v. Heller stated that certain categories of firearm restrictions are longstanding and thus presumptively lawful. And yet, litigants are inviting courts to reject this presumption, arguing that presumptively lawful regulations should be subject to the same historical test as presumptively unlawful regulations.
Courts should reject the invitation to weaken or narrow Heller’s presumptively lawful exceptions. Ignoring the presumptively lawful categories of firearm regulations outlined in Heller undermines a key component of the Second Amendment framework. Abandoning that doctrine could undo the public safety efforts of legislatures and litigants working to prevent gun violence. As such, Heller’s admonishment that certain categories of firearm regulations would receive a presumption of lawfulness should be embraced—not left in the doctrinal dustbin
The War on Higher Education
Full text linkHigher education is under assault in the United States. Tracking authoritarian movements across the globe, domestic attacks on individual professors and academic institutions buttress a broader campaign to undermine multiracial democracy and the institutions that sustain and safeguard it. Reflecting on the past academic year, this essay charts the increasingly brazen right-wing efforts in the U.S. Congress and the States to erode academic freedom and university independence— two pillars of our democratic republic. We also identify a bi-partisan source of higher education’s present precarity: the neoliberal policies that precipitated the privatization and corporatization of universities across the country
The Priority of International Law
Full text linkWhat is international law? Any theory of international law must explain both its technical nature and its moral force and must also show how the two come together in practice in order to give it the priority that it claims. For example, the genocide cases before the International Court of Justice exhibit a puzzling dedication to procedure. The Court is invited to examine the war in Gaza strictly on the basis of the Genocide Convention, without assessing any allegations of war crimes or other alleged violations of international law. The reason is a well-known procedural rule—namely that states have to consent to the jurisdiction of the ICJ before they appear before it. This puts the judges of the court in an impossible position: they must both apply international law and ignore it. How can it be that international judges turn a blind eye to alleged crimes against humanity (and so do the litigants that bring the case to court)? It seems that in international law a technical rule takes priority over the suffering of millions of innocent civilians that remains without investigation and without remedy. How can the priority of jurisdiction be accounted for rationally? Standard theories of law fail to provide an answer: Kelsen’s legal positivism, Raz’s service conception of authority, political theories of the “legitimacy” of international law, all fail to explain why jurisdiction has priority. We find a compelling answer, I believe, in Grotius’ ethical argument for law. Grotius follows Cicero in arguing that all persons in the world have an ethical duty to create and maintain a civil condition so that they can have an institutional basis for their common life with others. Such duties of “sociability” become relevant through the “salience” of historical institutions, as argued very recently by Ronald Dworkin, who also seems to share the Grotius/Cicero view of law. Just like all law, international law makes sense as part of the ethical project of jointly creating the civil condition
