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States Rise to the Front of Climate Legislation, but Can a State-Level Carbon Tax Work?
Get PDFThis Note uses two recent Massachusetts carbon tax proposals to discuss the costs and benefits of such state-level climate change legislation but discusses similar regional proposals as well. Although a state carbon tax poses some limitations and concern for the increased tax burden relative to other states that have not imposed a tax, the adoption of state carbon taxes represents an important advancement in climate policy. Part I overviews legislative tactics used to combat climate change thus far, including common policy responses, and the current attitude of federal legislators toward the global climate crisis. Part II introduces the advantages and common criticisms of a carbon tax policy and concludes that a carbon tax would be an effective policy option. Next, Part III discusses recent state carbon tax proposals, focusing on the efforts of northeastern states to enact the nation’s first carbon tax law. Two Massachusetts proposals, Senate Bill 1821 and House Bill 1726, are introduced to provide the basis for an analysis of state carbon taxes. Finally, Part IV discusses the possibility of effective state-level climate change policy and analyzes the costs and benefits of the Massachusetts state proposals. This Note argues that states, especially population-dense states such as Massachusetts, should adopt state-level carbon taxes to reduce their respective share of carbon emissions and supply momentum to the climate change movement
Believe Me, We Do Not Have a Foreign Emoluments Clause Violation
Get PDFPresident Trump was sued in New York District Court for allegedly violating the Foreign Emoluments Clause. In its brief, the Citizens for Responsibility and Ethics in Washington (CREW) alleged that the president\u27s international businesses and real estate holdings positioned him to receive money from foreign governments. These business interests, or entanglements, could sway or create an opportunity for negative foreign influence in violation of the Emoluments Clause. CREW states that these entanglements between American officials and foreign powers could pose a creeping, insidious threat to the Republic. CREW argued that President Trump violated the Emoluments Clause because the clause cover[s] anything of value, monetary or nonmonetary.
In defense of the president, the Department of Justice (DOJ) contended that the president had not received illegal emoluments because an Emoluments Clause violation occurs only when the president receives compensation or gifts from a foreign country because of his official duty as president.
Neither of these emoluments definitions gets at the core of an Emoluments Clause violation. The Emoluments Clause, intended to prevent negative foreign influence in a globalizing world, acts as a builtin protection. It was created by the Framers to avoid the negative impact that foreign wealth could have on the U.S. government. This article argues that while foreign corruption in the form of payments to the president might be exactly what the Framers originally intended to avoid, President Trump is not violating the Emoluments Clause; President Trump\u27s interests both domestically and globally that increase his wealth are not a violation of the clause. This article argues that because the world has become more globalized, any Emoluments Clause violation should occur only if there is a real possibility that the president will actually be influenced and engage in political action based on the potential for financial windfall. Thus, would a reasonable president in this situation actually be influenced to act in favor of foreign powers?
Part II of this article explains the CREW case and the competing definitions of emoluments. Part III addresses the functionalist and formalist approaches to constitutional interpretation and ultimately advocates for a functional approach to the Foreign Emoluments Clause.\u27 Part IV examines the clause\u27s text and emoluments\u27 meaning in a global world. Part V explores the Foreign Emoluments Clause\u27s original intent. Part VI discusses the Supreme Court\u27s interpretation of the clause. Part VII discusses past practices regarding the executive branch\u27s interpretation. Finally, Part VIII discusses the clause\u27s future implications and possible remedies
Understanding the Politics of Resentment: of the Principles, Institutions, Counter-Strategies, Normative Change, and the Habits of Heart
Get PDFThe paper asks, when is a constitutional design of any (domestic, international, supranational) polity in error? On the most general level, such a critical juncture occurs when a polity\u27s founding document (treaty, convention, constitution) protects against dangers that no longer exist or does not protect against the dangers that were not contemplated by the founders. Constitutions not only rule but should also protect against deconstitution. When analyzed together, the cases of Hungary, Poland, South America, and more recently, the United States, suggest a worrying new pattern of the erosion of constitutional democracies. One may even speak of a recipe for constitutional capture in one state after another that travels in space and in time. The new autocrats know that the law might be used to dismantle the law and institutions and engage in a different form of repression by stealth or the deconstruction of democracy itself by using the legal means (autocratic legalism). This process tends to result in a systemic undermining of the key components of the rule of law, such as human rights, independent and impartial courts, and free media. It follows a well-organized script, tends to begin with disgruntled citizens voting to break the system by electing a leader who promises radical change, and often refers to the will of the people while trashing the pre-existing constitutional framework with cleverly crafted legalistic blueprints borrowed from other successful autocrats. Poland, Hungary, and other legalistic counter-revolutions (Venezuela and Turkey) are not the sort of mass human rights violations that merit scrutiny from an international level. The world has already (and luckily so) developed a framework to deal with these issues.
The paper asks whether the capture of state institutions in Poland (and Hungary before it) is an outlying case or if it foreshadows the future of Europe more generally. Whatever the case, Poland matters, and for more than just the Polish. The case illuminates salient features and fissures in the bases for democratic government, the rule of law, and constitutionalism when confronted with the sweeping politics of resentment. Recently, the Editorial Board of the New York Times saw it fit to comment on the European Commission\u27s decision on December 20, 2017, to invoke, for the first time in the history of European integration, Article 7 of the Treaty of the European Union against Poland. 10 The editors emphasized:
An independent judiciary, however, is not only the bulwark of the democratic order to which Poland signed on when it joined the European Union, but a fundamental requirement for the functioning of a single market. Upholding the treaties on which the union is based is indisputably within the European Commission\u27s purview. The European Commission was right to invoke Article 7. It must follow that up by sternly explaining to Mr. Kaczynski\u27s followers and other nationalist forces across Europe that there are red lines they cannot cross-not because Brussels so wills, but for their own sake. An independent judiciary is chief among them
Anticompetitive Mergers in Labor Markets
Get PDFMergers of competitors are conventionally challenged under the federal antitrust laws when they threaten to lessen competition in some product or service market in which the merging firms sell. In many of these cases the threat is that in concentrated markets—those with only a few sellers—the merger increases the likelihood of collusion or collusion-like behavior. The result will be that the post-merger firm will reduce the volume of sales in the affected market and prices will rise.
Mergers can also injure competition in markets in which the firms purchase, however. Although that principle is widely recognized, very few litigated cases have applied the merger law to buyers. The fear is that firms who collectively have power in the market in which they buy will be able to suppress the price that they pay. Such exercises of “monopsony” power are mirror images of the monopoly power exercised in selling markets. The post-merger firm reduces the number of purchases and forces the market price down.
This article concerns an even more rarefied subset, and one that has received little attention in merger law. Nevertheless, its implications are staggering. Some mergers may be unlawful because they injure competition in the labor market by enabling the post-merger firm anticompetitively to suppress wages or salaries. To the best of our knowledge no court has ever condemned a merger because of its anticompetitive effects in labor markets
Digitizing the Indiana Code
Get PDFThe Ruth Lilly Law Library holds one of the most complete sets of the official Indiana Code in print, and we often receive research requests for sections of the historical Code from attorneys and other researchers. The print collection is far more complete than anything available online and is freely available for anyone to use, but this generally requires a trip to the library. Currently, there is no free online public access to the Indiana Code predating 2009, and paid access offers no codes between 1921 and 1990. We have set out to change this
New Services for Families in the DC Superior Court
Get PDFUntil recently, because of concerns about safety and parties’ abilities to make good decisions in cases with a history of high intimate partner violence or abuse (IPV/A), in the District of Columbia’s Superior Court such cases were screened out of mediation and sent back to the family court. But two big program additions — videoconferencing and shuttle mediation — have allowed parties in these cases to consider mediation. The Multi-Door Dispute Resolution Division of the DC Superior Court (Multi-Door) implemented this change after several years of preparation: its administrators added safety measures, provided in-depth training for staff and mediators, and consulted with experts to design a research study to compare videoconference, shuttle mediation, and the prior practice of returning these cases to court
Slouching Toward Universality: A Brief History of Race, Voting, and Political Participation
Get PDFIn this brief history of race and voting in the United States, we look at five distinctive yet interrelated moments. The first is the founding period, a moment when the framers put our constitutional structure in place and set the initial federalist calculus in favor of the existing states. This is perhaps the most important moment in the story. The framers chose to allow the states to define the criteria for voting qualifications for federal elections. Instead of uniformity and centralization, they opted for diversity and decentralization. This is a choice that reverberates to this day. The second moment is the Civil War and Reconstruction, a moment acknowledged by many as a time when congressional leaders reset the federalism calculus towards the national government. The third moment is the expected retrenchment by the turn of the century, beginning in 1890 with the Mississippi plan. The fourth is the Second Reconstruction, which, for our purposes, culminated in the passage of the Voting Rights Act of 1965. The final moment is the concomitant retrenchment, exemplified by the recent Shelby County decision, and what commentators have labeled the new voter suppression. We take up each moment in turn
Labor Law in the Contemporary Workplace, 3rd Edition
No full textLabor Law in the Contemporary Workplace prepares students for the practice of labor law by introducing them to the principles of American labor law and many of the issues that labor attorneys face. The book is organized around contemporary problems as a means of teaching the core principles of labor law. Although the primary focus of the book is the National Labor Relations Act, considerable attention is given to the Railway Labor Act and public-sector labor laws because of their growing importance in contemporary practice. The third edition takes account of changes in the law since the first edition and second editions were published and in particular new interpretations of the National Labor Relations Act by the National Labor Relations Board and recent state restrictions on public sector collective bargaining.https://www.repository.law.indiana.edu/facbooks/1224/thumbnail.jp