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Slamming the Door on Trade Policy Discretion? The WTO Appellate Body\u27s Ruling on Market Distortions and Production Costs in EU—Biodiesel (Argentina)
Get PDFThis paper presents a legal-economic analysis of the Appellate Body′s decision in EU-Biodiesel (Argentina) that the WTO′s Anti-Dumping Agreement (ADA) does not permit countries to take into account government-created price distortions of major inputs when calculating anti-dumping duties. In this case, the EU made adjustments to the price of biodiesel′s principal input - soybeans - in determining the cost of production of biodiesel in Argentina. The adjustment was made based on the uncontested finding that the price of soybeans in Argentina was distorted by the existence of an export tax scheme that resulted in artificially low soybean prices. The Appellate Body found that the EU was not permitted to take tax policy-induced price distortions into account in calculating dumping margins. We analyze the economic rationale for Argentina′s export tax system, distortions in biodiesel markets in Argentina and the EU, and the remaining trade policy options for addressing distorted international prices. We also assess whether existing subsidies disciplines would be more effective in addressing this problem and conclude that they would not
Locking Up Our Own: Race, Class, and the Politics of Mass Incarceration
No full textOn November 15, 2018, James Forman Jr., delivered the 2018 Philip A. Hart Memorial Lecture “Locking Up Our Own: Race, Class, and the Politics of Mass Incarceration,” based on his book. Since 2011, Professor Forman has been teaching at Yale Law School; he also taught at Georgetown Law from 2003 to 2011, and several other law schools and institutions. His book Locking Up Our Own: Crime and Punishment in Black America (Farrar, Straus and Giroux, April 2017) won the 2018 Pulitzer Prize for General Nonfiction and was named one of the New York Times’s 10 Best Books of 2017. Professor Forman was a public defender in Washington, D.C. from 1994 to 2000. He also co-founded the Maya Angelou Public Charter School in Washington D.C. in 1997
The Definitions of Income
Get PDFWhat is income? It’s a seemingly simple question that’s surprisingly hard to answer. Income is the basis for assigning tax burdens, for distributing transfers, and for broader normative issues of inequality and justice. Yet we lack a shared conception of income, and a pure, rigorous definition of income is impossible. In this Article I review the intellectual history of the income concept among tax and fiscal theorists to show the difficulty of the problem, and also to show that some important debates about what’s proper under an income tax can be explained instead as arguments over competing income definitions that necessarily incorporate policy choices. These insights are applied to more modern questions, like the role of tax expenditure analysis and optimal income tax theory. I also perform—for the first time in the literature—a close examination and comparison of 12 different income definitions used by the federal government for different purposes. This examination illustrates that there is wide range of income concepts actively in use, but that the measure of income for tax purposes has a prominent and growing role.
This Article concludes that income is not a pure, external concept, but actually a constructed concept that necessarily embodies policy, and therefore political, goals. The differences between the income concepts and definitions examined here result directly from the policy goals of the various agencies, analysts, and scholars using those concepts. Therefore, the increasing reliance on the measure of income for tax purposes risks erroneously exporting what are essentially tax policy decisions into non-tax areas, such as transfer policy, health care subsidization, higher education grants and loans, and broader discussions on income inequality and economic justice
The Biopolitical Public Domain: The Legal Construction of the Surveillance Economy
Get PDFWithin the political economy of informational capitalism, commercial surveillance practices are tools for resource extraction. That process requires an enabling legal construct, which this essay identifies and explores. Contemporary practices of personal information processing constitute a new type of public domain — a repository of raw materials that are there for the taking and that are framed as inputs to particular types of productive activity. As a legal construct, the biopolitical public domain shapes practices of appropriation and use of personal information in two complementary and interrelated ways. First, it constitutes personal information as available and potentially valuable: as a pool of materials that may be freely appropriated as inputs to economic production. That framing supports the reorganization of sociotechnical activity in ways directed toward extraction and appropriation. Second, the biopolitical public domain constitutes the personal information harvested within networked information environments as raw. That framing creates the backdrop for culturally-situated techniques of knowledge production and for the logic that designates those techniques as sites of legal privilege
Allocation Rules and the Stability of Mass Tort Class Actions
Get PDFThis paper studies the effects of allocation rules on the stability of mass tort class actions. I analyze a two-stage model in which a defendant faces multiple plaintiffs with heterogeneous damage claims. In stage 1, the plaintiffs play a noncooperative coalition formation game. In stage 2, the class action and any individual actions by opt-out plaintiffs are litigated or settled. I examine how the method for allocating the class recovery interacts with other factors---the shape of the damage claims distribution, the scale benefits of the class action, and the plaintiffs\u27 probability of prevailing at trial and bargaining power in settlement negotiations---to determine the asymptotic stability of the global class. My results suggest criteria to attorneys and courts for structuring and approving efficient allocations plans in mass tort class actions and for evaluating the requirements for class certification in mass tort cases
Language, Science, and Politics: The Politicization of Public Health
No full textOn December 16, 2017, the Centers for Disease Prevention and Control and Prevention (CDC) staff were instructed not to use 7 words in its 2019 budget appropriation request: diversity, transgender, vulnerable, fetus, evidence-based, and science-based. These basic phrases are intrinsic to public health. The Department of Health and Human Services (HHS) offered alternative word choices, such as by modifying “evidence-based” with “community standards and wishes” and using “unborn child” instead of “fetus.
HHS repudiated reports that it banned words as a “complete mischaracterization,” but rather was guiding CDC toward a successful congressional request. The National Academy Presidents issued a joint statement saying HHS guidance could impede research and “the quality of counsel rendered to government.” This Viewpoint explains why HHS’ budget advice undermines science and ethics—even if it is lawful
Enforcing Federal Drug Laws in States Where Medical Marijuana Is Lawful
Get PDFOn January 4, 2018, Attorney General Jeff Sessions issued a memorandum immediately rescinding the Obama Administration’s long-standing guidance limiting federal enforcement of medical marijuana. Federal law creates harsh penalties for the cultivation, distribution, and possession of marijuana, which Sessions deemed a “dangerous drug” and a “serious crime.” The memorandum places physicians and patients at risk of arrest and prosecution in 29 states and the District of Columbia that have legalized medical use of marijuana (eTable in the Supplement).
This Department of Justice (DOJ) guidance came at a time of increasing acceptance, accessibility, and use of cannabis and its derivatives. According to a 2015 nationwide survey, an estimated 22.2 million individuals in the United States aged 12 years or older reported cannabis use in the past 30 days; 90% said their primary use was recreational, with 10% solely for medical purposes; 36% reported mixed medical and recreational use. A 2017 national poll found that 61% of respondents support legalization of marijuana and 71% oppose federal enforcement. In 2016, an estimated 1.2 million adults accessed medicinal marijuana through state-licensed dispensaries or home cultivation
Banning Abortion in Cases of Down Syndrome: Important Lessons for Advances in Genetic Diagnosis
Get PDFIn December 2017, Ohio passed into law legislation that prohibited physicians from performing abortions if the pregnant woman’s decision was influenced by her belief that the fetus has Down syndrome. Physicians who perform abortions in these cases would face fourth-degree felony charges and revocation of their medical license. No other state bans abortion specifically for Down syndrome, but several ban abortions in cases of genetic diseases. Lower courts have struck down most such laws, holding they violate the constitutional rights of women. In February 2018, a federal district court judge blocked enforcement of Ohio’s law pending a final determination.
This article explores the compelling legal and ethical issues raised by the Ohio statute. It compares the statute with similar bans on abortion in other states and considers why courts have struck many of these bans down as unconstitutional. The article also examines the potential consequences of the Ohio statute for women and their families; for the patient-physician relationship; and for persons with disabilities. Ultimately, such laws do little to advance the values that are at the heart of both reproductive rights and disability rights movements, namely bodily autonomy, self-determination, equality, and inclusion
Revising the Vertical Merger Guidelines (FTC Hearings)
Get PDFThis slide deck was the author’s presentation at the FTC Hearings on Vertical Mergers (November 1, 2018). The deck sets out a summary of the author’s economic analysis and proposed revisions to the U.S. Vertical Merger Guidelines