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Beneath the Property Taxes Financing Education
Get PDFMany states turn in sizable part to local property taxes to finance public education. Political and academic discourse on the extent to which these taxes should serve in this role largely centers on second-order issues, such as the vices and virtues of local control, the availability of mechanisms to redistribute property tax revenues across school districts, and the overall stability of those revenues. This Essay contends that such discourse would benefit from directing greater attention to the justice of the government’s threshold choices about property law and policy that impact the property values against which property taxes are levied.The Essay classifies these choices into three categories: structural choices relating to infrastructure and land use; financial choices relating to subsidies and exemptions; and protective choices relating to forestalling natural and human-induced adversities. This taxonomy reveals that if the government made different choices surrounding the content of property rights, those choices would produce different property values and, thus, different distributions of the property tax revenues that finance public education. The Essay distills a series of norms—circumstance-sensitivity, antidiscrimination, and interconnectedness—that can serve as a useful starting point for a justice-inspired evaluation of these omnipresent choices about property that are inevitably linked to educational opportunity and delivery
A Research Agenda for Water Law
No full textThis timely Research Agenda provides imaginative solutions to existing and emerging challenges for the study, application, and development of water law. It argues for a dynamic approach to water law, anticipating how water and its relationship to humanity will shift due to climate change, modern societal norms and values, and technological innovation.Bringing together leading experts and rising new voices, this Research Agenda analyses local, national, and international water law. It explores the pressing issues of today and tomorrow, and identifies areas for further research to ensure legal regimes can respond to future challenges for water provision. Contributors consider the legal personhood of rivers, water quality, international basins, water markets, and the role of indigenous groups in water management. Ultimately, this Research Agenda provides a portfolio of options for responding to the uncertain natural, social, and political future of water.Providing a cutting-edge overview of the challenges facing water law locally, nationally, and internationally, A Research Agenda for Water Law will be a valuable resource for scholars of water law, environmental law, and public international law. It will also be essential reading for policy-makers seeking to build future-facing water law regimes
The comparative law and economics of counterfeits and post-sale confusion
No full textThis chapter interrogates the economic justifications for the doctrine of post-sale confusion at both the domestic and international levels. It begins by exploring those justifications in the trademark holder’s home market. Focusing on U.S. trademark law, this initial analysis shows the doctrine’s weak economic justifications except in cases where the presence of counterfeits will undermine the rarity or other quality-unrelated attributes of status goods. This chapter then turns to the trademark holder’s foreign markets—in particular, those in developing countries where counterfeits are frequently made. This comparative analysis shows further that the economic justifications for the doctrine of post-sale confusion are even weaker in these markets. Because many foreign jurisdictions have not adopted the doctrine of post-sale confusion, the analysis focuses on a special category of counterfeits that does not cause point-of-sale confusion: nondeceptive counterfeits. Based on the economic analyses of this doctrine in both developed and developing country markets and in relation to varying types of counterfeits, this chapter concludes by offering five recommendations for courts, legislators, and policymakers to reform trademark law in the area of post-sale confusion
Deferring Intellectual Property Rights in Pandemic Times
Get PDFThis Article examines an unprecedented proposal that India and South Africa submitted to the World Trade Organization (WTO) in October 2020, which called for a waiver of more than 30 provisions in the Agreement on Trade-Related Aspects of Intellectual Property Rights to help combat COVID-19. It begins by recounting the proposal\u27s strengths and weaknesses. The Article then identifies the challenges surrounding the negotiation and implementation of the proposed waiver. It shows why these two sets of challenges were neither separate nor sequential, but deeply entangled at the time of the international negotiations.To respond to these challenges and the negotiation impasse at the WTO, this Article advances an alternative proposal that calls for the deferral of select intellectual property rights in pandemic times. Aiming to split the difference between the proponents and opponents of the waiver, the proposal draws support from precedents involving temporal adjustments to intellectual property rights at both the international and domestic levels. The Article concludes by exploring the proposal\u27s scope, strengths and limitations
Reflecting on the Foundations of Latinx Civil Rights: Looking Back and Looking Forward
Get PDFI am grateful to Dean Kevin Johnson for his thoughtful and generous review of my scholarship on Latinx civil rights. Dean Johnson has been tremendously influential in the field, and he has led by example through his long tenure as dean at UC Davis School of Law. So his insightful assessment of my contributions is especially meaningful. Like all good retrospectives, Dean Johnson’s got me thinking—not only about the past but also the future. So much has changed since I began writing about Latinx issues at the beginning of my career, and yet much remains the same. Because demography is often presumed to be destiny for the Latinx community, I would like to share a few thoughts about how this population has evolved in recent decades and how those changes pose new challenges and opportunities. It seems especially important to recognize the transformations because the law and policy landscape for Latinx remains relatively stagnant and not particularly well-suited to adapt to evolving circumstances
Species Survival or the “3S Method”? How the Endangered Species Act Disincentivizes Landowner Cooperation and Threatens the Species It Supposedly Saves
Get PDFThe Endangered Species Act (ESA) places restrictions on landowners when their property harbors endangered species. Though well-intentioned as a method of promoting species recovery, these restrictions actually have the reverse effect. Instead of accepting ESA regulations, landowners secretly eliminate endangered species from their property in what is colloquially known as “shoot, shovel, and shut up.” Collaboration between landowners and agencies is essential for species preservation. This Article illustrates the collaboration options, some within the limits of the ESA and others requiring its reform. The four options analyzed are (1) landowner peer review of species listing procedures, (2) congressional clarification of listing standards, (3) creation of a public trust for endangered species stewardship, and (4) formation of landowner-run regulatory entities with established standards reviewable by agencies
Personhood, Property, and Public Education: The Case of Plyler v. Doe
Get PDFProperty law is having a moment, one that is getting education scholars’ attention. Progressive scholars are retooling the concepts of ownership and entitlement to incorporate norms of equality and inclusion. Some argue that property law can even secure access to public education despite the U.S. Supreme Court’s longstanding refusal to recog- nize a right to basic schooling. Others worry that property doctrine is inherently exclusionary. In their view, property-based concepts like resi- dency have produced opportunity hoarding in schools that serve affluent, predominantly white neighborhoods. Many advocates therefore believe that equity will be achieved only by moving beyond property-based claims, for instance, by recognizing education as a public good or human right.
The Court has upheld a constitutional right of access to public schools on just one occasion. In Plyler v. Doe, the Justices found that Texas could not bar undocumented students from schools or charge them tuition. The Court did not declare education a fundamental right or alienage a suspect classification. Instead, the opinion relied on several rationales, some property-based and some not. Residency, for instance, featured prominently in the case, but so did a trope of childhood innocence. Recently, there have been calls to revisit Plyler, making this an opportune moment to evaluate how its reasoning will fare. Despite growing interest in property-based entitlements as a strategy for inclusion, Plyler’s fate will likely turn on considerations that transcend property: the blamelessness of children, the cruelty of relegating them to a lifetime of illiteracy, and the implications that such deliberate indifference has for our democratic integrity
Fallacies in the Design of Climate Change Policies: A Response to Richard Epstein
Get PDFThis Essay criticizes Professor Richard Epstein’s approach to climate change regulation, which he characterizes as one involving taking modest steps at first, observing the results of these steps, and then using the lessons learned to inform the next steps. Epstein’s approach depends critically on a particular class of damage function determining how greenhouse gas emissions cause harm—specifically, damage functions that lack discontinuities. And it also depends on the ability to observe in real time how the function occurs. Neither of these conditions are met with respect to climate change. The Essay also shows that Epstein’s approach is further undermined by the structure of energy markets, in which investments are large and lumpy as opposed to small and continuous. For example, Epstein’s “small steps” approach might lead to significant current investments in natural gas facilities, like natural gas pipelines, instead of a bolder move to renewables. These lumpy investments cannot be easily undone when it then turns out that our approach to climate change regulation was too cautious, both for economic and public choice reasons