Implications of the Tax Reform Proposals for Fraud – or – How to Shift to a Consumption Tax Without Helping the Cheaters

The vast majority of the proposals on the table today are simply different implementation mechanisms of the same basic idea: a change in the tax base from income to consumption. The purpose of this article is to consider the implications some of these proposals have for the enforcement of tax compliance (prevention of cheating). For this reason, it will only briefly address the impetus for a consumption tax and the policy considerations behind it. The first part will also give short descriptions of the proposals that will be considered in this article: the National Retail Sales Tax, the Savings-Exempt Income Tax and the Value-Added Tax (VAT). Next, I will analyze each of these proposals with regard to the feasibility of evasion. Finally, the article concludes that with regard to the prevention of tax-cheating, the VAT is the most efficient of these proposals. In light of the fact that in most other respects they are effectively the same (they all tax the same base at what would become the same amount after determining revenue needs and effectively operate to encourage saving and boost the economy through investment), I would endorse a VAT (with progressive safeguards as briefly noted) in order to discourage cheating and to take the burden of compliance out of the hands of the average citizen

Governing the Ungovernable: Integrating the Multimodal Approach to Keeping Agricultural Land Use from Swallowing Ecosystems

As the population grows, so does the conflict between demand for agricultural productivity and the need to maintain healthy ecosystems. Unfortunately, this concern alone does not motivate the agricultural industry to operate in a more environmentally friendly manner, nor is it an industry that has proven amenable to strict regulation. Indeed, any such effort must face one of the mightiest lobbies of all time. As it functions today, agriculture is unsustainable and at risk of wiping out more than its fair share of our already dwindling biodiversity. As demand increases, there is the potential for it to get worse than it already is. One might think that the Endangered Species Act (ESA) could solve the problem, given that it has strict prohibitions on harming listed species, but the ESA is no match for this industry, which works hard to avoid its reach. While there are some ESA approaches that work better than others, such as regional habitat conservation plans that allow farmers to destroy some habitat in exchange for contributing to the protection of large and interconnected areas of habitat, a review of the ESA’s implementation in the agricultural context makes clear that far more is needed. In recent decades, a variety of approaches to improving conservation efforts on agricultural land have cropped up, such as conservation easements, payment for ecosystem services (PES) programs, the Conservation Reserve Program (CRP) to avoid overuse of agricultural land, green labeling restrictions, and direct subsidy methods such as the Environmental Quality Incentives Program (EQIP) and Conservation Stewardship Program (CSP), which pay farmers to incorporate more environmentally friendly practices. Some of these methods, such as PES and conservation easements, tend to be implemented by a wide range of entities, both public and private. What we wind up with is a mix of efforts that sometimes overlap, also raising federalism questions. The disaggregation of agricultural conservationist efforts, which is necessitated by the industry’s successful avoidance of traditional top-down command-and-control regulation, is not necessarily a problem. However, in light of these disaggregated and sometimes overlapping spheres of influence, some effort at integration could reduce the chaos and lead to more consistency nationwide. Drawing from scholarship focused on transnational regimes, we see that decentralized (and public-private mixed) governance can still be effective and even coordinated. As effective programs expand, social norms develop and begin to tie them together. As this occurs, it creates the opportunity to better coordinate and integrate the diverse influences. Given the importance of scale in maximizing the benefit-to-cost ratio when protecting ecosystems, such coordination of the various sources of authority is especially valuable in this context. It is likewise important to share both information and strategy, in light of the shared goals of the many entities involved in the governance of ecologically sustainable agriculture. This essay and presentation will consider potential methods for improving the integration of the array of approaches, as well as consider the importance of taking an adaptive management approach to this coordination-seeking venture

Complementary Authority and the One-Way Ratchet: Ecosystem Services Property, Regulation, and Wildlife Conservation

Due to the priorities of the Trump Administration, which are not a great match with those of the conservation community, we find ourselves in a period of rollbacks for all kinds of environmental regulation, including the protection of wildlife. When the federal government fails to adequately regulate, we look to other sources of authority to fill that gap. The first and most obvious place to look is to state and local governments. They are our best hope to avoid hemorrhaging vulnerable species during this presidency. Alas, looking at the realities of state wildlife conservation laws, we see the gaps remain. Where else are we to turn? Is there any potential source of private power that might be leveraged in favor of conservation? Building on the author’s recently published theory of ecosystem services property, this Essay considers the extent to which that potential property interest may operate in favor of wildlife conservation, even where that is not the goal of those exercising the right. While no substitute for government regulation, this approach to property rights may well assist in filling regulatory gaps

Framers’ Intent and Military Power: Has Supreme Court Deference to the Military Gone Too Far?

The first ten amendments to the United States Constitution, ratified in 1791 and known as the Bill of Rights, create the core of what people today consider their most basic freedoms. Without these rights, and consistent judicial adherence to them, most Americans would not feel secure. There are two major sources of danger to these basic rights: internal and external. Internally, we must protect ourselves from our own infringement of these rights through the firm restrictions that the Constitution places on the government in its treatment of the people. Externally, we must protect our system of maintaining these freedoms from foreign parties who may wish to take over and change our government. Both safeguards are extremely important, but either is worthless without the other. In other words, these goals are entirely dependant on one another. When we spend our resources on the national defense, we must ask ourselves just what it is that we are protecting. At the same time, we must also accept that occasionally it will be necessary to ask that individuals make personal sacrifices in order to protect the entire set of freedoms for the whole. It is the role of the Supreme Court to balance these interests and determine the extent to which the military may limit certain liberties in order to protect the nation. More specifically, it is the Court\u27s duty to limit the military\u27s unconstitutional acts to those in which it simply must engage. Certainly no one would argue that the military should be completely unbound by the Constitution. The disputed issue merely goes to how it is to be kept in check, by whom, and to what extent. In Part I of this Article, I will discuss the Court\u27s practice of deferring to the military\u27s judgment regarding this balance, which prevents it from being properly struck. The Framers clearly thought about this balance when authoring the Bill of Rights. Indeed, while the focus of these amendments was on individual freedoms, the need for urgent exceptions for the military was addressed where necessary. The ultimate question this Article seeks to address is to what extent the Framers intended the Court to bend the rules for the military above and beyond the leeway already provided. I will investigate this in Part II through a combination of textual, historical, and structural analysis. This investigation and analysis will demonstrate that the Court has granted the military a degree of power well beyond that contemplated by the Framers. This analysis is important because original intent has not been taken into consideration sufficiently with regard to the level of autonomy the military is allowed. There have been many arguments based on policy, necessity, and even justiciability, but it seems that judges and scholars have forgotten about the Framers altogether. If we are to continue to live in a government that they structured, there must be some limitation on the extent to which we deviate from their carefully thought-out plan. Every word in the Constitution had a purpose, and in other areas of inquiry we treat that as an important factor to this day. This Article could include many long sections on modern issues and advisable policy, and it does marginally address these issues, but its focus is on the Framers, the way they structured our government, and their placement of the military within that scheme. One of the sources of the Court\u27s inability to conduct proper constitutional analysis in military cases is its lack of access to complete and unbiased information upon which to base that analysis. In Part III, I will make an effort to suggest methods for addressing this problem alternative to simply letting the military use its special knowledge as a source of power over the Court. Part IV will demonstrate a modern example of where the problem of excessive deference can lead, and present the Court with a suggestion to use this as a context for change. Finally, the Article will conclude by summarizing the need for change and urging the Court to reconsider its policy of deference

Symposium: The Next Generation of Environmental and Natural Resources Law: What Has Changed in Forty Years and What Needs to Change as a Result

Introduction to nine perspectives changing in the field of Environmental and Natural Resources Law. These discussions, and our shared concern for the issues that will impact the planet for centuries to come, are so valuable

The Biodiversity Paradigm Shift: Adapting the Endangered Species Act to Climate Change

The Endangered Species Act (ESA) was designed to protect species that had been rendered more vulnerable to extinction as a result of human activity. As such, its implementation has traditionally focused on keeping human beings away from such species and giving the species (and their ecosystems) space to heal on their own. Climate change is altering the landscape everywhere on the globe, rendering the hands-off approach no longer sufficient. Active interventions will become more necessary as we get further into the changing climate. Taking decisive action in response to climate change will also require a fundamental shift in our approach to nature, in which we leave behind the static preservationist view and accept that change is happening so that we can manage that change. Making the move from passive management (the hands-off approach, focused on prohibiting certain actions) to proactive management techniques will require some triage, which is impossible without this psychological shift. Climate change is resulting in widespread disturbances to ecological functioning, regardless of whether human beings have set foot in a given area, and we can no longer apply a static approach to a dynamic world. Rather than cling to a goal of reducing human interaction with nature, we must focus on the goal of increasing species resilience to change – these goals have coincided in the past, but this is lessening with each warming year. This Article will review the impacts of climate change on biodiversity and the sort of management approaches that will become more appropriate in the Anthropocene, an era characterized by rapid non-linear change and multi-scale tipping points. Dealing with climate change requires effort both to mitigate (reduce anthropogenic greenhouse gasses) and adapt, so the Article will discuss the relationship between the ESA and both mitigation (which is not an ideal area for ESA application) and adaptation (where the most work is needed). While there are several provisions in the ESA that will prove useful to supporting the new strategies for species and ecosystem management, utilizing them properly will require a shift in implementation priorities and greater acceptance of the demise of what once was. Moreover, because the existing potential for applying ESA measures to support more active management techniques is both inadequate and voluntary, it will be worthwhile to build these new modalities into the statute itself in order to maximize the potential for species climate adaptation. I propose several changes to the ESA – amendments designed to bring what is rapidly becoming a rusty old statute into the new world we must manage today

Strength in Numbers: Setting Quantitative Criteria for Listing Species under the Endangered Species Act

My primary thesis is that the Fish & Wildlife Service and the National Marine Fisheries Service need to set quantitative criteria for listing species under the Endangered Species Act in order to promote consistency, transparency, and efficiency. I suggest a model for doing so, the use of which would create an opportunity to move beyond the political quagmire surrounding the selection of vulnerable species for preservation. Like my other environmental scholarship, the article merges scientific research in the field of conservation biology with legal analysis. With the status quo, listing decisions often turn on wildly different factors, including some not contemplated by the Act. While the Act on its face treats all species equally, regardless of popularity with humans, in reality these decisions can be highly politicized. Although this process is necessarily an ad hoc one, some degree of consistency can be achieved by setting certain thresholds and methods. Taking into account the criteria used in the international community for the IUCN Red List, combined with the relevant scientific literature on population viability analysis, I propose a set of thresholds that function according to the varying life cycles of different species. I also address the arguments that have been used to defend the present highly subjective process

No-Drop Prosecution of Domestic Violence: Just Good Policy, or Equal Protection Mandate?

Domestic violence is a problem that must be dealt with for what it is: a criminal act. The only way to effectively diminish it is through the full force of the criminal justice system, which must treat domestic violence the same as it treats crime by strangers. The purpose of this note is to argue that aggressive prosecution of domestic violence-at least to the same extent that other violent crimes are prosecuted-is mandated by the Equal Protection Clause of the Fourteenth Amendment. Part I will examine the extent of the problems that pervade the criminal justice system, both historically and in contemporary dealings with domestic abuse. In Part II, I will explain the no-drop policy, discuss its effectiveness and importance, address the arguments against it, and make some practical suggestions for its implementation. Part III will review the equal protection standards already extended to police protection in domestic violence cases in many jurisdictions. This protection, however, has yet to be extended to the prosecutorial stage, which limits its effectiveness. Consequently, in Part IV I will argue that the equal protection requirement that domestic violence victims receive the same police protection as victims of other crimes should be extended to the courtroom. Effective prosecution of these crimes, which is rare without a no-drop policy, is essential to providing the required equal police protection to domestic violence victims, and should therefore be mandated by the Constitution