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NEPA at 50: An Empirical Analysis of NEPA in the Courts
Get PDFThe National Environmental Policy Act (NEPA), the groundbreaking 1970 statute that requires federal agencies to take a “hard look” at the environmental impacts of their actions, turned 50 this year. In this anniversary year, and with NEPA revision efforts a hot topic in environmental law, we begin by quantifying the burden imposed by NEPA compliance. We then look back on approximately 1,500 court decisions to quantify the rate at which NEPA decisions are challenged, assess how those cases are resolved, and compare NEPA cases to other environmental litigation. We then discuss efforts to “streamline” NEPA and why we believe those efforts are likely to have unintended consequences
Amendment Clauses in Easements: Ensuring Protection in Perpetuity
Get PDFInternal Revenue Code § 170(h)(5)(A) requires that the conservation purpose of a deductible conservation easement be “protected in perpetuity.” This article explains how the protected-in-perpetuity requirement should limit the parties’ ability to reserve the right to make post-donation changes to the terms of a deductible easement
Digital Services Tax: A Cross-Border Variation of the Consumption Tax Debate
Get PDFThe rise of highly digitalized businesses, such as Google and Amazon, has strained the traditional income tax rules on nexus and profit allocation. Traditionally, profit is allocated to market countries where consumers are located only if the business has a physical presence. However, in the digital economy, profits can be easily generated in market countries without a physical presence, resulting in tax revenue loss for market countries. In response, market countries have started imposing a new tax, called the digital services tax (DST), on certain digital business models, which has ignited heated debate across the globe. Supporters defend the DST, designed as a turnover style consumption tax, as an effective measure to make up the foregone revenue in the digital economy because it is not bound by the traditional rules of income taxation. Opponents criticize DSTs as “ring-fencing” or segregating certain digital business models, discriminating against American tech giants, and arguably imposing a disguised income tax. The debate has been focused on the imminent impact, such as who is the immediate winner and loser, but the discussion lacks efforts to understand the fundamentals of DSTs, especially with regard to the consumption tax aspect.This Article is the first academic paper that highlights DSTs as a consumption tax and provides normative implications for policy makers deliberating a DST. It argues that a DST, with certain modifications, can be a good solution for the tax challenges of the digital economy. First, the Article offers an in-depth analysis of DSTs’ economic impact in multisided digital platforms. Second, it offers the advantages of DSTs over other types of consumption tax, such as value added tax and cash-flow tax. Finally, it illustrates how the recent Supreme Court case of South Dakota v. Wayfair, Inc., which discusses a sales tax imposed on certain remote sellers, and the subsequent Netflix Tax may shed light on ways to overcome the ring-fencing problem of the DST
How Effective Are Police? The Problem of Clearance Rates and Criminal Accountability
Get PDFIn recent years, the national conversation in criminal justice has centered on police. Are police using excessive force? Should they be monitored more closely? Do technology and artificial intelligence improve policing? The implied core question across these national debates is whether police are effective at their jobs. Yet we have not explored how effective police are or determined how best to measure police effectiveness. This Article endeavors to measure how effective police are at their principal function—solving crime. The metric most commonly used to measure police effectiveness at crime-solving is a “clearance rate:” the proportion of reported crimes for which police arrest a person and refer them for prosecution. But clearance rates are inadequate for many reasons, including the fact that they are highly manipulable. This Article therefore provides a set of new metrics that have never been used systematically to study police effectiveness—referred to as “criminal accountability” metrics. Criminal Accountability examines the full course of a crime to determine whether crime that is committed is detected and ultimately resolved by police. Taking into account the prevalence and the number of crimes solved by police, the proportion of crimes solved in America is dramatically lower than we realize. Only with a clearer conversation, rooted in accurate data about the effectiveness of the American police system, can we attempt a path toward increased criminal accountability and public safety
Information Hacking
Get PDFThe 2016 U.S. presidential election is seen as a masterpiece of effective disinformation tactics. Commentators credit the Russian Federation with a set of targeted, effective information interventions that led to the surprise election of Republican candidate Donald Trump. On this account, Russia hacked not only America’s voting systems, but also American voters, plying them with inaccurate data—especially on Internet platforms—that changed political views.
This Essay examines the 2016 election narrative through the lens of cybersecurity; it treats foreign efforts to influence the outcome as information hacking. It critically assesses unstated assumptions of the narrative, including whether these attacks can be replicated; the size of their effect; the role of key influencers in targeted groups; and the normative claim that citizens voted against their preferences. Next, the Essay offers examples of other successful information hacks and argues that these attacks have multiple, occasionally conflicting goals. It uses lessons from cybersecurity to analyze possible responses, including prevention, remediation, and education. Finally, it draws upon the security literature to propose quarantines for suspect information, protection of critical human infrastructure, and whitelists as tactics that defenders might usefully employ to counteract political disinformation efforts
In a World of “Fake News,” What’s a Social Media Platform to do?
Get PDFWhile the circulation of disinformation and misinformation online can pose a variety of risks to societies around the world, it should also be of concern that overreacting to such false information can undermine human rights, including freedom of expression. The business operations of global social media platforms frequently intersect with this latter concern because of a spike in the adoption of national laws that ban “fake news” as well as their own platform policies to tackle false information. This Essay assesses the corporate responsibility standards afforded by the United Nations’ Guiding Principles on Business & Human Rights as well as the International Covenant on Civil and Political Rights and explains several key ways in which the guidance that these instruments provide is relevant to social media companies in tackling false information on their platforms
Beyond the Antiquities Act: Can the BLM Reconcile Energy Dominance and National Monument Protection?
Get PDFOn December 4, 2017, President Donald J. Trump carved more than 2 million acres from the Bears Ears and Grand Staircase-Escalante national monuments. He also directed federal land managers to prepare management plans for both monuments. Draft plans have been released, and the preferred alternative under both plans promotes right-of-way development, minerals exploration, livestock grazing, and other traditional uses over protection of monument resources. Our paper argues that this approach violates both the Federal Land Policy and Management Act and the Omnibus Public Lands Act of 2009 because these statutes require the Bureau of Land Management to emphasize protection of monument resources over more impactive uses. We also argue that the Bureau of Land Management violated the National Environmental Policy Act when it failed to account for its statutory obligations to protect monument resources in the environmental baseline contained in the environmental impact statements for the management plans
Freedom of the Press in Post-Truthism America
Get PDFFreedom of the press in America is at a critical crossroads in a number of ways, but one stands out as most fundamental: the stark impact of the current debate over “Post-Truthism.” Press freedom jurisprudence has long been structured around the concept of an audience member’s search for truth in a marketplace of ideas. But social science research increasingly suggests that individual information consumers are in fact often driven by emotion, affirmation of political identity, and the need for cognitive shortcuts, and that they may not possess the truth-seeking, rational processing, or information-updating capabilities that the Court assumes. Whether this divide between jurisprudence and reality actually exists—and what to do about it if it does—are pressing questions for both the courts and the media, made all the more pressing as the changing media landscape and the hyperpartisan political climate exacerbate some components of the Post-Truthism critique. The concern for some is that if press jurisprudence has rested on flawed assumptions about the nature of press audiences, the new awareness of those limitations may undermine the marketplace-of-ideas justification for press freedom and its associated press protections. This Article investigates both questions. It finds that the factual premise—that the Supreme Court has made erroneous assumptions about the motivations and behaviors of information audiences—is accurate, but argues that the theoretical consequence of this gap is just the opposite of what some have suggested. Instead of undercutting the rationales for press protection, this wider modern understanding of the information-processing and truth-seeking limitations of individual press consumers in the marketplace of ideas actually underscores the need for protection of the press as a market-enhancing institution. The Article argues that a fuller appreciation of this dynamic can provide timely and helpful insight into why the Constitution might separately provide unique Press Clause protections and can offer insight into some of the functions that would qualify an institutional actor as “the press” for purposes of that constitutional protection—an identification process that will be increasingly vital as information consumers shift from legacy media to new forms of news and content delivery. The Article probes these functions and offers a conceptual framework for granting Press Clause protection to market-enhancing entities that compensate for the inherent shortcomings of individual information consumers
Supreme Court Clerks and the Death Penalty
Get PDFThis Essay is part of GW\u27s Supreme Court Clerks at 100 symposium. The Supreme Court is involved, directly or otherwise, with virtually every execution carried out in the United States. Most executions are appealed to the Court, and inmates commonly request a stay of execution a few days or hours before their scheduled death. The clerks review these requests and recommend a ruling. A few days after I arrived at the Court, I got my first death penalty assignment. As the date drew near, the defendant asked the Court to stay his execution. I opened his file and began to read
The New United Nations High Seas Treaty: A Primer
Get PDFThis short Insights piece provides an introductory overview to the United Nations\u27 developing Biodiversity Beyond National Jurisdiction (BBNJ) treaty, which would add a Protocol to the United Nations Convention on the Law of the Sea to allow for biodiversity protections (marine protected areas) in the high seas