Keeping Current – Property Article
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Darryl Wilson, Keeping Current – Property, 38 Probate and Property (2024)Clicking on the button will copy the full recommended citation.
Articles
Closing the Driver–Response Loop for Halting and Reversing Wetland Degradation and Loss from Agriculture Article
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C. Max Finlayson et al., Closing the Driver–Response Loop for Halting and Reversing Wetland Degradation and Loss from Agriculture, 75 Marine & Freshwater Research MF24050 (2024)Clicking on the button will copy the full recommended citation.
Context. The Ramsar Convention on Wetlands has considered agriculture–wetland interactions, but without linking policy responses to agricultural drivers of change.
Aims. Assess the disconnect between the rhetoric of analysing and reporting on the role of agriculture in wetland loss and degradation (the ‘drivers’) with actions on the ground (the ‘responses’).
Methods. An analysis of almost 400 Convention documents was undertaken to understand how the Convention has addressed agriculture and what
responses were identified. The documents were filtered through a word search for their relevance to the direct and indirect drivers of degradation in wetlands.
Key results. Although there was a focus on issues and problem framing and generic responses, they were insufficient to address the range of drivers
underpinning agriculture–wetland interactions. They also present a generic and partial viewof agriculture and broader food systems.
Conclusions. We make the following four recommendations for addressing the driver–response gap: deepening our understanding of the drivers in agriculture that affect wetlands; exploring and exploiting windows of opportunities within agriculture that are aligned with wetland use; enhancing our ability to work with indirect drivers; and ensuring that resolutions agreed through the Convention are more specific on key drivers of adverse change in wetlands.
Implications. The current impetus for ‘agriculture transformation’ creates an opportunity for the Convention to broaden its engagement in wetland–agriculture interactions and close the driver–response loop.
The Optimal Allocation of Scarce Resources: Three Fundamental Theorems in Property Law Article
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Will Bunting, The Optimal Allocation of Scarce Resources: Three Fundamental Theorems in Property Law, 76 Baylor L. Rev. 576 (2024)Clicking on the button will copy the full recommended citation.
This Article contends that the scope of the Coase Theorem has been extended too far by those who have interpreted the Theorem as setting forth a powerful argument against public intervention in private markets. The Coase Theorem can be viewed as a decentralization result only if certain restrictive conditions hold true. First, the Coasean prediction that the private exchange of state-enforced private property rights will yield the optimal use of scarce resources in the absence of transaction costs is correct, conditional upon the assumption that a random grant of private property rights is the socially optimal resource allocation rule. This assumption might not hold true, however. This Article provides three economic reasons for why the political process might select a socially suboptimal allocation rule-what this paper terms political transaction costs. Second, the final allocation of scarce resources depends upon the initial wealth endowment of the transacting parties. These wealth endowments, however, might be the product of an inefficient labor market. This Article identifies three sources of market failure in labor markets and contends that these inefficiencies must be fully considered in any broader assessment of the Coase Theorem as a decentralization result.
Forward: Rewriting the Script Article
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Robyn Powell, Forward: Rewriting the Script, 77 Oklahoma Law Review 1 (2024)Clicking on the button will copy the full recommended citation.
Keeping Current – Property Article
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Darryl Wilson, Keeping Current – Property, 38 Probate and Property 14 (2024)Clicking on the button will copy the full recommended citation.
Post West Virginia v. EPA the Administrative State’s Door is Still Ajar Article
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Jaclyn Lopez, Post West Virginia v. EPA the Administrative State’s Door is Still Ajar, 98 St. John's L. Rev. 653 (2024)Clicking on the button will copy the full recommended citation.
The Supreme Court’s decision in West Virginia v. EPA, which carves out a new rulemaking standard for Congress and federal agencies, may be as significant for its articulation of the Major Questions Doctrine (“MQD”) as it is for its treatment of Article III standing and jurisprudential mootness. This Essay examines lower courts’ subsequent treatment of West Virginia v. EPA to add dimension to the inquiry of whether the new MQD has upended the administrative state or if it is merely another arrow in the quiver for judges that prefer a weaker federal government or nondelegation altogether. It also explores whether the opinion, in reaching its MQD merits, redefined the contours of standing and mootness jurisprudence.
Till Death do us Part(ner) – Imputed Fraud Liability Concerns for Spouses Following the Supreme Court’s Decision in Bartenwerfer v. Buckley Article
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Theresa J. Pulley Radwan, Till Death do us Part(ner) – Imputed Fraud Liability Concerns for Spouses Following the Supreme Court’s Decision in Bartenwerfer v. Buckley, 59 Ga. L. Rev. 149 (2024)Clicking on the button will copy the full recommended citation.
In 2023, the U.S. Supreme Court resolved a decades-long debate regarding the ability to discharge liability imputed upon a debtor for another person's fraudulent conduct. In Bartenwerfer v. Buckley, the Court held that the Bankruptcy Code prohibits discharge of any fraud liability-even when the debtor did not participate in the fraud but was married to and engaged in business with the person who did.
Scholars have long recognized the challenge of this type of business-partner imputed fraud liability in the context of a marital relationship. Creating a partnership merely requires intent of the parties to engage in business together, without any
required documentation or filing with the state. As such, determination of the existence of a partnership relies on a case-by-case determination to discern the true intention of the putative business partners. The marital context adds a new challenge to this determination, as couples frequently share money and help each other in ways that might be construed as a business partnership. The Bartenwerfer decision makes the determination more fraught with consequences, since the
non-defrauding business partner faces not only liability under state law but liability that cannot be discharged even in the last-resort option of bankruptcy.
Bankruptcy courts historically look at the state law standard for creation of a partnership, but the courts lack a clear set of guidelines to provide structure to the partnership determination. The tax courts and the Internal Revenue Service have faced similar issues in determining the tax liabilities and social security eligibility of spouses potentially engaged in business together, as well as in determining the existence of a business for tax-purposes. Though rooted in tax issues, the cases
start at the same place as any determination of a partnership: the intent of the parties to engage in business together. At the heart of these tax cases lie a trilogy of Supreme Court decisions from the mid-twentieth century and a more modern Supreme Court case. These decisions and rules outline factors to consider in finding the existence of a business, and they provide a more detailed framework for bankruptcy courts to determine the existence of a partnership among married couples or other family members. This article considers these cases to build a framework for determining liability and non-dischargeability in bankruptcy cases.
Formulary Apportionment: A New Framework for Personal Income Taxation ArticleForthcoming
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Andrew D. Appleby, Formulary Apportionment: A New Framework for Personal Income Taxation, 52 Pepp. L. Rev. (2025)Clicking on the button will copy the full recommended citation.
The prevalence of post-pandemic remote working arrangements and increased interstate migration have upended existing personal income taxation regimes. For decades, the current paradigm proved to be an imperfect but workable means to determine which state has the prevailing claim to impose tax on a particular item of income. The individual’s state of residence has a residual claim to all the individual’s worldwide income, but defers to the state in which the income is derived if such a state is determinable. To that end, the state of residence typically provides a credit for income taxes paid on a source basis to other states. Fundamentally, source trumps residence in the context of personal income taxation.
The problem is that taxing jurisdictions can no longer readily determine the source of income or the individual’s state of residence within the existing legal constructs. Existing legal structures designed to tax employment income cannot cope with widespread remote working arrangements. The rise of the digital economy and independent contractor “gig work” allows individuals to shift the source of their income. At the same time, individuals are also shifting their state of residence from high-tax to low-tax states at historic rates. Increased interstate migration, particularly of high-net-worth individuals and profitable closely-held businesses, has allowed income to migrate with individuals. The result is a genuine threat of multiple taxation for individuals and significant revenue losses for taxing jurisdictions. The stakes are enormous, as personal income tax regimes account for approximately one-quarter of all state and local tax revenues.
The solution—formulary apportionment—is a concept with which states are very familiar. Although formulary apportionment has been the prevailing paradigm for multistate corporate income taxation for decades, state legislatures and the existing literature have largely and surprisingly failed to recognize the promise of formulary apportionment for multistate personal income taxation. This Article remedies that oversight.
Taking Tokens Article
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Andrew D. Appleby, Taking Tokens, 91 Tenn. L. Rev. 321 (2024)Clicking on the button will copy the full recommended citation.
Tokenization began a fundamental transformation of our laws of ownership, but this transformation is curbed by a lag in the laws of taxation. This Article provides the theory and doctrinal tools to mend this disconnect. Tokenization provides a method to prove and transfer ownership of valuable assets such as art, real property, and equity interests in all types of entities. The tokenization process creates a nominal token that represents the legal ownership rights in the underlying asset. The token, and thus the ownership of the underlying asset, can then be verified and transferred in a process that may be more efficient than doing so with the underlying asset directly.
Blockchain-based tokenization promises to increase efficiency exponentially, which will reduce transaction costs and allow for greater market participation. Blockchain-based tokenization also inherently obscures ownership and transfers of the underlying asset, which may produce significant tax benefits for the asset owner but erode the state and local tax base. State and local governments impose taxes on the ownership and transfer of property. These taxes typically apply only to tangible property, not intangible property. If ownership of tangible property is transferred via an intangible token, such as a blockchain-based non-fungible token (“NFT”), significant transaction taxes may be avoided. In addition, determining which taxing jurisdiction has the statutory and constitutional basis to impose tax on the tokenized transaction is problematic.
This Article answers the crucial tax questions that arise with blockchain-based asset tokenization. First, this Article examines foundational tokenization principles, which implicate many fields of law. Next, this Article analyzes blockchain-based tokenization in several important contexts, focusing on the tax implications of each. In conclusion, this Article resolves jurisdictional and constitutional challenges, and provides a normative approach for taxing blockchain-based tokenized assets.
Fairness as Balance: Investor Obligations and Investment Treaty Reform Article
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Klara Van der Ploeg, Fairness as Balance: Investor Obligations and Investment Treaty Reform, 4 International Investment Law Journal 184 (2024)Clicking on the button will copy the full recommended citation.
The normative asymmetry between the rights and obligations of investors and host states under investment treaties has been a key reason for the treaties' common characterization as "unbalanced". While initially a description of a justified treaty design, imbalance has since become a central component of the legitimacy challenges to the investment treaty regime: a normative demand of the treaties' realignment. Identifying the imbalance critiques of investment treaties as fairness-based critiques concerning the distributive implications of investment treaties, the article considers to what extent including provisions on investor conduct in investment treaties may address the concerns about potential unfairness in the allocation of rights
and obligations under these treaties. In particular, the article argues that understanding the imbalance critiques as concerns of distributive justice enables the assessment of investment treaty design innovations and the alternative ways in which these instruments could be structured to produce different distributive outcomes.