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Incorporating a Framework for Compostable Materials into Extended Producer Responsibility: Plastic Packaging Models in the Legal Fight Against the Plastic Problem
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Defining Healthy on Food Labels: One Step Forward, Two Steps Back
Get PDFFew definitions of the mid-twentieth century have survived into the twenty-first century. It is worth asking, then, why the definition of health, articulated seventy-five years ago by the World Health Organization, has endured into the present. The 1948 definition reads as follows: [h]ealth is a state of complete physical, mental[,] and social well-being and not merely the absence of disease or infirmity. Aspirational in tone, the definition resonates with the surge among consumers towards healthier foods and overall well-being. However, in addition to wartime and pandemic concerns, today\u27s threats to achieving health include climate change and a rise in diet-related chronic health diseases-like obesity, cardiovascular disease, hypertension, stroke, type 2 diabetes, metabolic syndrome, some cancers, and perhaps some neurological diseases.
Modernizing food labels can help reduce the incidence of diet-related chronic health disease. In the United States, the last major overhaul of food labeling standards occurred in 1990, with the adoption of a mandatory standardized Nutrition Facts Panel on all food products; since then, labels have become cluttered with symbols, pictures and words that prevent consumers from making informed, healthy food purchases. Consumers struggle to differentiate truth from advertising on food labels and find claims like healthy, nutritious, and natural fraudulent and misleading. Many other countries are adopting front-of package (FOP) nutritional labeling to curb diet-related chronic health disease; early results from Chile show that this approach is working. Meanwhile in the United States, where FOP labeling legislation has historically failed, the focus is on updating the definition for the nutrient content claim healthy.
The problem is that, on the road to achieving legal accuracy to define the term healthy, regulators may miss the larger goal of encouraging healthier outcomes. Can the new definition for the term healthy on food packages achieve both goals: to improve accuracy and to improve consumer health? This Article presents the tension that regulators face as they define the term healthy, drawing from global FOP practices, industry and scientific perspectives, and current litigation in the United States, and recommends ways to strengthen the new healthy definition
Uncommon Carriage
Get PDFAs states have begun regulating the carriage of speech by “Big Tech” internet platforms, scholars, advocates, and policymakers have increasingly focused their attention on the law of common carriage. Legislators have invoked common carriage to defend social media regulations against First Amendment challenges, making arguments set to take center stage in the Supreme Court’s impending consideration of the NetChoice saga.
This Article challenges the coherence of common carriage as a field and its utility for assessing the constitutionality and policy wisdom of internet regulation. Evaluating the post-Civil War history of common carriage regimes in telecommunications law, this Article illustrates that conceptions of common carriage and its treatment by the courts vary significantly and are contingent on specific historical and technological circumstances. The Article observes that common carriage is an attractive nuisance for policymakers and judges. The doctrine distracts from difficult normative questions about the permissibility of government interventions into speech and the editorial discretion of internet platforms.
The Article disentangles talismanic invocations of “common carriage” by isolating three distinct issues: (1) the classification of “common carriers,” (2) the imposition of “common carriage” rules on those carriers, and (3) the First Amendment problems that flow from the imposition. Applying this novel three-part framework, this Article argues for a context-sensitive approach to internet regulations. This approach evaluates the designation of carriers, the imposition of rules, and the role of the First Amendment at a granular level to more robustly account for the complexity of contemporary internet platforms
The Realization Rule as a Legal Standard
Get PDFThe realization “rule” in tax law is better characterized as a legal standard. This characterization matters after the Supreme Court’s decision in Moore v. United States, which sets the stage for future courts to decide that the Constitution mandates realization— an identifiable event before accrued income is reportable by taxpayers. The stakes of a constitutional realization requirement are underappreciated. Because current statutory law embeds realization as a background principle, a constitutional realization requirement would operate as a taxpayer-initiated antiabuse doctrine—a sword that taxpayers could use selectively to invalidate parts of the Internal Revenue Code and Treasury Regulations. This novel constitutional tool has adverse, and underappreciated, implications for the U.S. tax system’s structure and complexity.
Through the lens of the longstanding academic literature on legal rules and standards, the dangers of a constitutional realization requirement extend beyond top-down risks to individual Internal Revenue Code provisions or, as the Moore majority posited, entire taxing regimes. Instead, a constitutional realization requirement threatens to erode federal income tax law from the bottom up, through incremental public and private challenges to the fundamental mechanics of taxation. Realization and nonrealization permeate business entity taxation in deeply technical ways. In these areas, a constitutional realization requirement may facilitate aggressive private planning, undermine the law’s coherence, and dampen reform efforts. Even Moore’s whisper of a constitutional realization requirement ventures into poorly charted territory, with potentially detrimental consequences that may prove difficult to unwind.
Moreover, a constitutional realization requirement portends increased complexity in tax law. Government-asserted antiabuse doctrines constrain complexity by allowing lawmakers to write simpler rules that cover high-frequency transactions. Low-frequency transactions, including those that reflect inappropriate tax planning, are addressed through (and discouraged by) open-ended standards in the enforcement process. As a taxpayer-initiated antiabuse doctrine, a constitutional realization requirement would have the reverse effect, increasing complexity by increasing the frequency of tax-planned transactions, encouraging more costly government responses to taxpayer abuse, and changing the dynamics of enforcement. The resulting complexity would be systemic—and could increase over time