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A Call for Energy Realism: When Immanuel Kant Met the Keep it in the Ground Movement
Get PDFThe “Keep it in the Ground” Movement (the “Movement”) is a coalition of environmental groups that seek to end fossil fuel extraction by halting oil and gas development on federal lands. Supporters of the Movement demand a safer climate future and the transition to a renewable energy economy. However, the Movement is premised on the notion that the United States can divest fossil fuels, particularly petroleum hydrocarbons, from its energy economy and terminate oil and gas development in the near-term future. The Movement disregards the possibilities of serious economic impacts with respect to domestic revenues and infrastructure framework, and geopolitical risks tied to energy independence and regional stability. This Article examines the rise of the Keep it in the Ground Movement and analyzes the challenges that would follow its evolution and implementation if it continues to ignore the reality of American energy use and reliance. It promotes the adoption of Energy Realism in two forms.
The first form of this realism, Pragmatic Energy Realism, addresses the realities of actual petroleum consumption and reliance. The second form, Philosophical Energy Realism, borrows philosophical concepts arising from Kant’s theories of realism to develop the theory that there is only one uniform reality of energy. Application of these theories highlights the flaws of examining the issue from solely an environmental perspective. In fact, the author hypothesizes that such an evaluation is not correct. Rather, this Article asserts that there is only one reality with respect to energy, environment, poverty, and other aspects of energy consumption and environmental impact. It is therefore impossible to isolate any single perspective without fundamentally dismissing reality and instead embracing a subjective perspective.
This Article also proposes initiatives that the Movement could adopt to affect changes in consumer demand and energy consumption including: energy efficiency measures, implementation of a carbon tax, and addressing energy poverty. The author intends that understanding and adopting Energy Realism will provide new directions and goals for the Movement and further the necessary dialogue between stakeholders on the interrelationships between energy and environment
Law and Surplus: Opportunities Missed
Get PDFSurplus is a ubiquitous feature of economic activity. The ubiquity of surplus challenges us to find fair and efficient ways to share resources. This is the surplus problem. This Article documents the miscues and mistaken assumptions that have left research on how legal rules can address the surplus problem woefully underexplored.
Three missed opportunities are particularly noteworthy. First, scholars studying “rent-seeking” mistakenly limit their investigation of links between surplus and wasteful competition to situations involving grants of government privilege. Second, law and economics scholars incorrectly assume that a laissez-faire approach is presumptively the best way to address the surplus problem. Finally, consumer law scholars fail to recognize how central solving the surplus problem is to providing a sound economic justification for consumer protection law.
Collectively, these case studies illustrate how law’s role in addressing the surplus problem has been shunted to the periphery of legal scholarship rather than placed at the center of legal discourse where it rightly belongs
Dividing Bail Reform
Get PDFThere are few issues in criminal law with greater momentum than bail reform. In the last three years, states have passed hundreds of new pretrial release laws, and there are now over 200 bills pending throughout the states. These efforts are rooted in important concerns: Bail reform lies at the heart of broader recent debates about equitable treatment in the criminal justice system. Done right, bail keeps dangerous individuals off the streets; done wrong, it keeps those with less economic means in jail longer. Some jurisdictions are eliminating money bail. Others are adopting risk assessments to determine who to release. Still others are changing state statutes and constitutions and factors that judges consider in the bail decision. All of these reforms are fundamentally flawed. This is because near all of these bail reform efforts consider all crimes as interchangeable — failing to distinguish minor and serious crimes. This Article is the first to identify this pervasive shortcoming in bail reform and makes two important contributions to the literature. First, it distinguishes between minor and serious crimes, and proposes systematic changes to bail reform based on the seriousness of the crime. It argues that individuals charged with misdemeanors — accounting for the vast majority of criminal cases — should be released presumptively and not detained except in rare circumstances. This right is rooted in history and constitutional rights and even squares with a plain interpretation of current state laws. Second, it shows how dividing bail will matter in important ways, demonstrating that this modest-seeming proposal can have widespread theoretical and practical impact. Indeed this change will dramatically alter the landscape of state bail laws, bail schedules and risk assessments. In addition, it will have serious impact on some of the most important criminal law debates of our time, including equity of application in criminal law, prison overcrowding, and due process protection
Measuring the NEPA Litigation Burden: A Review of 1,499 Federal Court Cases
Get PDFWe reviewed thirteen years of National Environmental Policy Act (“NEPA”) litigation data summarizing 1,499 federal court opinions to assess:
(1) How frequently NEPA compliance efforts result in litigation; (2) how agency NEPA decisions fare in court; and (3) how NEPA litigation outcomes compare to outcomes in other challenges to federal agency decisions. We found that only one in 450 NEPA decisions were litigated and that the rate of NEPA challenges declined during the thirteen-year study period. We noted an inverse relationship between the amount of time spent on Environmental Impact Statement (“EIS”) preparation and the likelihood that an EIS would be challenged in court. We also found that while federal agencies prevail in NEPA litigation at slightly higher rates than in other civil cases where the government is a defendant, environmental plaintiffs win at higher rates than any other class of NEPA challengers. Overall, we conclude that the NEPA litigation burden may be overstated because few decisions are challenged in court, the rate of challenge is declining, and environmental plaintiffs are likely to bring only cases where they have a high likelihood of success. We therefore recommend against imposing strict deadlines and page limits on EISs as these “reforms” may do little to reduce the NEPA compliance burden while limiting opportunities for public engagement
Reynolds v. United States, Rewritten
Get PDFIn Reynolds v. United States, 98 U.S. 145 (1878), Chief Justice Morrison Waite, writing for a unanimous Supreme Court, upheld the federal Morrill Anti-Bigamy Act outlawing polygamy in the federal territories and providing criminal penalties for it. This is a re-writing of that opinion, presented in the form of a dissent, available in Feminist Judgments: Family Law Opinions Rewritten (Cambridge University Press, forthcoming 2020). Unlike the Court’s opinion, this dissent concludes that religious practice, as well as belief, is protected by the First Amendment. It therefore holds that a religious duty to engage in an unlawful practice may be a defense to a criminal charge absent evidence of harm to others or disruption of the public order. It further demonstrates that the common law crime of polygamy was intended to penalize fraud and deception rather than consensual conduct. Finally, the opinion addresses head-on the implicit religious freedom claims of the wives of the defendant. It finds that polygamy is no better and no worse for women than monogamous marriage under coverture and that overturning the defendant’s conviction would further the religious freedom and equality of the defendant’s wives and the female citizens in the Territory of Utah. The aims of the dissent are to make visible the women erased by the Court\u27s opinion and to create a more free and egalitarian law of marriage for all women in the United States in the late 19th century
Insulation by Separation: When Dual-Class Stock Met Corporate Spin-Offs
Get PDFThe recent rise of shareholder engagement has revamped companies’ corporate governance structures so as to empower shareholder rights and to constrain managerial opportunism. Notwithstanding the general trend, this Article uncovers corporate spin-off transactions — which divide a single company into two or more companies — as a unique mechanism that insulates the management from shareholder intervention. In a spin-off, the company’s managers can fundamentally change the governance arrangements of the new spun-off company without being subject to monitoring mechanisms, such as shareholder approval or market check. Those changes often empower managers over shareholders. Furthermore, most spin-off transactions enjoy tax benefits. The potential agency problems associated with the managers’ unilateral governance changes can be further compounded when the managers adopt multiple classes of common stock with unequal voting rights (“dual-class stock”) in the new spun-off company without shareholder approval. This is the first Article to systematically examine the problem from both corporate and tax law perspectives and to offer possible solutions. The Article argues that when the managers’ unilateral governance changes are substantial, certain adjustments to corporate and tax laws may be necessary to curb managerial opportunism. For instance, under corporate law, when spin-off transactions accompany a charter amendment, shareholder approval, either at the state law level or company charter level, can be mandated. In addition, tax law can revisit the “continuity of interest” requirement to evaluate whether material changes in shareholder voting rights can disqualify certain spin-offs from tax-free treatment. The Article will also present new insights into the long-standing debate on dual-class stock by showing how the perceived risk of dual-class stock can be magnified when combined with spin-off transactions
The New Amy, Vicky, and Andy Act: A Positive Step Towards Full Restitution for Child Pornography Victims
Get PDFIn this article, we review some of the valuable steps forward found in the AVAA, as well as the work that remains to be done. But in closing, it may be useful to remember that the legal issues swirling around restitution decisions have real world consequences, both for the defendants who must pay the restitution awards and the victims who need and deserve compensation. As between these two groups, however, the equities tip decisively in favor of victims. To be sure, large restitution awards have financial consequences for criminal defendants. But the stark fact remains that criminals have a choice to commit the crime or not. Having voluntarily chosen to commit a crime producing serious lifelong financial repercussions for victims, a defendant has no right to complain when courts require him to contribute to making victims whole. Victims of child pornography crimes – and, more broadly, all serious federal crimes – deserve to have their interests prioritized in federal sentencing statutes. The AVAA is a modest but useful step in that direction
Harm, Sex, and Consequences
Get PDFAt a moment in history when this country incarcerates far too many people, criminal legal theory should set forth a framework for reexamining the current logic of the criminal legal system. This Article is the first to argue that “distributive consequentialism,” which centers the experiences of directly impacted communities, can address the harms of mass incarceration and mass criminalization. Distributive consequentialism is a framework for assessing whether criminalization is justified. It focuses on the outcomes of criminalization rather than relying on indeterminate moral judgments about blameworthiness, or “desert,” which are often infected by the judgers’ own implicit biases. Distributive consequentialism allows for consideration of both the harms of the conduct and the harms of criminalization itself. It brings an intersectional approach to criminal legal theory by examining the distribution of harm, centering the experience of populations that face intersectional forms of subordination, and viewing the criminal legal system suspiciously. This Article adopts a distributive consequentialist analysis to examine the continued criminalization of sex work as just one example of how the theory can be applied. This application demonstrates how engaging in a distributive consequentialist analysis is a step toward reining in a system that seems to be ever-expanding and reframing a criminal legal theory that has grown ambivalent about this expansion
Illegal Substance Abuse and Protection from Discrimination in Housing and Employment: Reversing the Exclusion of Illegal Substance Abuse as a Disability
Get PDFWhen landlords or employers know that someone is using opioids, either legally or illegally, the consequences can be significant. Rental housing or employment are both critical to well-being, yet may be at particularly high risk. As this Article argues below, legal protections in these areas are inadequate. To summarize the argument briefly, a crucial legal problem for people suffering from substance abuse disorders is that current illegal use of controlled substances is excluded from the definition of disability in federal anti-discrimination statutes. A history of substance abuse is a disability protected from discrimination, but recent relapses vitiate this protection. Relatedly, federal law still criminalizes the medical use of marijuana and federal anti-discrimination law reflects the federal prohibition rather than legalization under state law. The legal use of prescription opioids and medication assisted treatment (MAT) is protected under anti-discrimination law, but many employers subject MAT patients to increased scrutiny and others continue to insist on drug free workplace policies that prohibit their employment
Engineering Pass-Throughs in International Tax: The Case of Private Equity Funds
Get PDFFund investment, or indirect investment, does not entail entity-level taxation domestically, so investors enjoy “tax neutrality” between direct and indirect investments made within a country. In contrast, when investments are made across borders, tax neutrality cannot be guaranteed because current international tax regimes are built upon bilateral tax treaties and lack pass-through tax rules for multinational fund investment schemes. This may put investors in a worse tax position than had they invested directly.In response, investors have created many strategies to reduce tax liabilities internationally when investing indirectly. Sometimes those strategies enable investors to pay even less taxes than they would with a tax-neutral benchmark. Recognizing that systematic pass-through taxation more likely would achieve tax neutrality goals, the OECD, through its limited rule-making power, developed several proposals for pass-through treatment. Unfortunately, none of them have been effective, either because of too narrow implementation or because they supply bilateral solutions to a multilateral problem.As an alternative, this Article proposes an innovative multilateral approach in which both the source country and the residence country may look-through certain fund vehicles in intermediary countries and will collect tax as if the investment was made directly from the residence country to the source country. This Article further develops the proposal by demonstrating its feasibility for private equity funds (PEFs). PEFs offer unique opportunities to reform international pass-through taxation because they tend to have only a handful of high-profile investors who rarely change during the fund’s lifetime. Although information about PEF investors notoriously has been less available to tax authorities, new public and private databases as well as a newly enhanced system for the exchange of tax information make such information now more accessible to governments. Tax authorities will be able to obtain information on the considerably small and manageable number of investors behind PEFs and implement pass-through taxation to realize robust tax neutrality goals