27127 research outputs found
Sort by
Rewriting NEPA: Statutory Continuity and Disruption in a Polarized Era
Get PDFFor decades the National Environmental Policy Act (NEPA) of 1969 was a paradigm of statutory stability. In 2023 that changed overnight with a major rewrite of NEPA as part of the debt ceiling bill. The text of the statute was hurriedly negotiated between President Biden and House Speaker McCarthy, and then passed with virtually no debate.
This article is the first to analyze the amendments. Due to the frenzied enactment process, NEPA is now loaded with overlapping and partially conflicting language, provisions that seem nonsensical if taken literally, and perplexing gaps. The article teases apart these problems, concluding that the statute is often best understood as codifying established law or making incremental changes rather than marking a break with the past. The analysis raises serious questions about the utility of the kind of close textual reading often favored by today\u27s Supreme Court, especially as applied to the products of such unorthodox lawmaking processes. Instead, the statute requires a holistic interpretation based on its structure and its relationship with prior legal landscape
From Columbus to Lansing: Exploring the Prosecution of Environmental Crimes Within EPA Region 5
Get PDFTransgressions of federal environmental law involving significant harm or culpable conduct can result in criminal prosecution. However, we know very little about how such prosecutions have taken place within EPA Region 5, which includes Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin. We undertake a content analysis of 2,807 criminal prosecutions that resulted from U.S. EPA criminal investigations from 1983-2022, selecting all 392 prosecutions occurring within Region 5 for analysis. Results show that over $3.4 billion in monetary penalties, 1,039 years of probation, and over 492 years of incarceration were assessed at sentencing. 33 % of prosecutions centered on water pollution, 23% on hazardous substances, 21% on air pollution, and 17% on state-level crimes, with a majority of prosecutions taking place in Ohio and Michigan. We conclude by offering recommendations for enhancing criminal enforcement, such as expanding funding for core operations and creating stronger connections with state and local environmental agencies
European Union/OECD/International - Klaus Vogel Lecture 2023: The Past, Present and Future of Destination-Based Income Taxation.
No full textA significant obstacle to the unilateral adoption of the OECD’s Pillar One are tax treaties since many countries cannot override tax treaties unilaterally. In his Klaus Vogel Lecture for 2023, Professor Reuven Avi-Yonah asks what are the chances for adopting a true multilateral convention for income taxation
The Basis for Election Exceptionalism in Justiciability and Related Doctrines: Constitutional Compensation in Light of Purcell
No full textPursuant to the so-called Purcell doctrine, lower federal courts (and perhaps the U.S. Supreme Court itself) are supposed to refrain from issuing remedies that would alter the rules for election administration in the run-up to Election Day. Whether or not the Purcell rule’s purported justifications are persuasive (e.g., concerns about voter confusion, candidate and campaign expectations, smooth operation of election logistics), one tremendously problematic entailment of Purcell is that elections are held (and candidates are elected and policies are determined) even when serious doubt exists about the legality of the contests under federal statutes and the Constitution. Because of these deleterious consequences, we seek, making use of “compensation” theory, to identify ways that justiciability doctrines (e.g., mootness, first- and third-party standing, ripeness, vagueness, and overbreadth) and related constraints on access to federal fora can and should be overtly modified to offset Purcell’s undesirable effects and to facilitate earlier and easier federal adjudication and remediation in election-related challenges. It turns out the foundation of such an election exceptionalism regarding access to federal courts has been partially (if inconsistently and haphazardly) laid by the Supreme Court, but the Court has never meaningfully tried to tie the various foundation beams together in a structurally sound and coherent way, much less describe and explain what the doctrinal edifice should look like and why. That is what we seek to do in this Article
Chevron and Stare Decisis
No full textThis Term, in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. U.S. Department of Commerce, the Supreme Court will expressly consider whether to overrule Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.—a bedrock precedent in administrative law that a reviewing court must defer to a federal agency’s reasonable interpretation of an ambiguous statute that the agency administers. In our contribution to this Chevron on Trial Symposium, we argue that the Court should decline this invitation because the pull of statutory stare decisis is too strong to overcome
The Usefulness of Pillar 1
No full textMany commentators have declared that pillar 1 of the base erosion and profit-shifting project 2.0 is dead. By its explicit terms, the multilateral tax convention (MLC) implementing pillar 1 cannot go into effect this year without ratification by the United States, and the chances of the United States ratifying it before or after the election are low given massive opposition in Congress. If the MLC does not go into effect by December 31, 2024, over 30 countries will likely impose digital services taxes on January 1, 2025, making the whole pillar 1 project (which was aimed at preventing the spread of DSTs and eliminating existing ones) useless. That is why I wrote in a previous Tax Notes article that reading the hundreds of pages of the draft MLC is a waste of time
Now You Have It, Now You Don’t: Taxing Crypto, Part 1
No full textThe latest rise in the value of bitcoin has rekindled the debate on whether cryptocurrencies perform a useful function. For example, a recent article in the Financial Times argued: Have we learnt the lessons from the disastrous 2022 crash in digital assets? To judge from recent action in the crypto market, the answer appears to be no. Since hitting bottom after FTX collapsed into bankruptcy with a 70,000 this week to touch record highs. A new wave of enthusiasm is growing, with institutions such as BlackRock and Invesco moving into the market. . . . Crypto still doesn’t play a meaningful role in the economy. Its value has always been underpinned by the belief that it is the future of finance. But price rises have run far ahead of any proof of genuinely practical applications gaining real traction. This list of crypto’s faults is not exhaustive. Its principal real-world application to date has been making life easier for criminals. . . . I wouldn’t say that crypto definitely has no future. Journalists are, as a rule, hysterically bad at recognising key innovations when they come along. I have met plenty of well-motivated people who are smarter than me and still think crypto is worth devoting their lives to. There may well be good ideas somewhere out in the cryptosphere that will someday emerge and change the world. But against crypto’s record of destroying wealth, breeding fraud and screwing over regular people, the burden has never been higher on crypto’s promoters to prove that it can actually start doing some good
Front Matter
Get PDFFront Matter for Volume 14, Issue 1 of Michigan Journal of Environmental & Administrative La
Designing Sanctuary
Get PDFIn recent decades, a growing number of cities in the United States have adopted “sanctuary policies” that limit local participation in federal immigration enforcement. Existing scholarship has focused on their legality and effect, especially with respect to our nation’s immigration laws. Largely overlooked, however, is the local process through which sanctuary policies are designed and the reasons why cities choose to adopt them through city ordinances, mayoral orders, or employee handbooks. This Article argues that municipal sanctuary policies are far from uniform, and their variation reflects the different local interests and institutional actors behind their adoption and implementation. More specifically, municipal sanctuary policies can be broadly categorized into three models: administrative sanctuary, political sanctuary, and silent sanctuary. Each of these models reflects a specific approach in how cities choose to balance their political relationship with residents, their administrative relationship with employees, and their intergovernmental relations with the state and federal government. Moreover, these three models correspond with different eras in sanctuary’s development and anti-sanctuary responses at the state and federal level. This typology highlights the structural and institutional forces that have contributed to the diversity of sanctuary policies in the United States. In addition, it calls into question many of the assumptions in the sanctuary literature about the assessment of sanctuary policies, the goals of anti-sanctuary efforts, and the effect of all of this on local policymaking
Creditors, Shareholders, and Losers In Between: A Failed Regulatory Experiment
Get PDFIn the aftermath of the 2007-08 Global Financial Crisis, regulators encouraged many of the world’s largest banks to hold a new type of regulatory instrument with the goal of improving their safety and soundness. The regulatory instrument was known as a “CoCo,” short for contingent convertible bond. CoCos are neither debt nor equity. They are something in between, designed to give the bank a shot in the arm during times of stress. Many of the largest international banks have issued CoCos worth hundreds of billions of dollars. After more than ten years—a decade that includes the collapse of Credit Suisse in Switzerland—this regulatory experiment has failed.We leverage insights from economic theory to show that CoCos were doomed from the beginning for two reasons. First, from a finance perspective, providing more equity only stabilizes a wobbling bank in normal times before the market and depositors ask questions about the bank’s health. Once they start asking questions and the bank faces a liquidity crisis (i.e., a bank run), having more equity on the bank’s balance sheet becomes meaningless. Only more liquidity can save the bank from complete collapse. Second, from a game theory perspective, controlling the public availability and flow of information is crucial in times of stress. If the market and depositors can ascertain which bank is weak or how much financial trouble that bank is in, a liquidity crisis will ensue, and that bank is as good as gone. The stigma effect is lethal. Ironically, the trigger mechanism built into CoCos can send a public signal that a bank is on its deathbed. It allows the market and depositors to differentiate between the weak and the strong, nearly guaranteeing a bank’s failure.Is the regulatory experiment salvageable? We offer a set of reform proposals consistent with our theoretical insights. We argue, foremost, that the trigger mechanism should be used early, well before a liquidity crisis begins. We also recommend that the mechanism should protect a bank in poor financial health by sending as little information to the market as possible. That may require a greater reliance on regulators’ discretion and a simultaneous trigger across several banks to prevent the market from identifying which bank(s) may be in trouble. To be sure, we are cleareyed that our proposals come with costs, which we describe at length. If regulators conclude that the costs are too high and our proposals are too difficult to implement in practice, they should end the experiment altogether. The status quo is a regulatory fiction