Law Commons^™

Utilitarianism And Wealth Transfer Taxation, Jennifer Bird-Pollan

Law Faculty Scholarly Articles

This article is the third in a series examining the continued relevance and philosophical legitimacy of the United States wealth transfer tax system from within a particular philosophical perspective. The article examines the utilitarianism of John Stuart Mill and his philosophical progeny and distinguishes the philosophical approach of utilitarianism from contemporary welfare economics, primarily on the basis of the concept of "utility" in each approach. After explicating the utilitarian criteria for ethical action, the article goes on to think through what Mill's utilitarianism says about the taxation of wealth and wealth transfers, the United States federal wealth transfer tax system …

Why Tax Wealth Transfers?: A Philosophical Analysis, Jennifer Bird-Pollan

Law Faculty Scholarly Articles

The one-hundredth anniversary of the estate tax provides an ideal moment to reflect on the role of wealth transfer taxation in the larger scheme of the U.S. tax system. Wealth and income inequality are at historically high levels, and the responses to these issues are often reduced to a simplistic political dichotomy of “right” versus “left.” The multitude of views of the American people cannot be reduced to such simple generalities without losing important nuances. This Article identifies three general categories of political philosophical viewpoints that are commonly endorsed by both politicians and everyday Americans, and then examines the current …

Unseating Privilege: Rawls, Equality Of Opportunity, And Wealth Transfer Taxation, Jennifer Bird-Pollan

Law Faculty Scholarly Articles

This Article is the second in a series that examines the estate tax from a particular philosophical position in order to demonstrate the relevance and importance of the wealth transfer taxes to that position. In this Article, I explore Rawlsian equality of opportunity, a philosophical position that is at the heart of much American thought. Equality of opportunity requires not only ensuring that sufficient opportunities are available to the least well-off members of society but also that opportunities are not available to other members merely because of their wealth or other arbitrary advantages. Therefore, an income tax alone, even one …

Death, Taxes, And Property (Rights): Nozick, Libertarianism, And The Estate Tax, Jennifer Bird-Pollan

Law Faculty Scholarly Articles

The primary purpose of this Article is to dispute the moral claims to post-death property rights made by libertarians when they argue against the estate tax. As I will show later in this Article, my argument does not necessarily entail enacting an estate tax, nor does it require a particular level of tax. I am merely trying to demonstrate that those who argue that the estate tax is an immoral violation of the private property rights of the deceased are mistaken. This is not to say that the estate of the deceased should necessarily pass to the government. It is …

Two And A Half Ethical Theories: Re-Examining The Foundations Of The Carnegie Report, Mark F. Kightlinger

Law Faculty Scholarly Articles

In the past three years, the American Bar Association, several major state bar associations, the Association of American Law Schools, the New York Times, law students, and many legal educators have called for fundamental changes in the way we educate new lawyers. Some critics have suggested that legal education faces a crisis that will be exacerbated by rising tuitions, declining enrollments, and a precipitous drop in the demand for new lawyers. Most of those calling for change have relied on the critical analysis of modem legal education presented in a 2007 report by the Carnegie Foundation for the Advancement …

Nihilism With A Happy Ending? The Interstate Commerce Commission And The Emergence Of The Post-Enlightenment Paradigm, Mark F. Kightlinger

Law Faculty Scholarly Articles

This Article examines early Supreme Court opinions about the Interstate Commerce Commission (ICC)—the first federal administrative agency—in an effort to identify the intellectual roots of the modern administrative state. The Article argues that the Court's effort to explain and justify the function of the newborn ICC shows the traces of a post-Enlightenment crisis in the field of moral philosophy—i.e., the growing conviction that it is no longer possible for reasonable people to agree on what constitutes a true, objective, universally valid standard of reasonable or just conduct. From this essentially nihilistic starting point, the Court helped to fashion a new …

Twilight Of The Idols? Eu Internet Privacy And The Post Enlightenment Paradigm, Mark F. Kightlinger

Law Faculty Scholarly Articles

This Article provides a timely examination of the European Union's approach to information privacy on the internet, an approach that some legal scholars have held up as a model for law reform in the United States. Building on the author's recent piece discussing the U.S. approach to internet privacy, this Article applies to the EU's internet privacy regime a theoretical framework constructed from the writings of philosopher and social theorist Alasdair MacIntyre on the failures of Enlightenment and post-Enlightenment thought. The EU internet privacy regime is shown to reflect and reinforce three key elements of the "post-Enlightenment paradigm," i.e., the …

The Gathering Twilight? Information Privacy On The Internet In The Post-Enlightenment Era, Mark F. Kightlinger

Law Faculty Scholarly Articles

The steady stream of news reports about violations of privacy on the Internet has spawned a growing body of literature discussing the legal protections available for personally identifiable information—i.e., information about identified or identifiable persons—collected via the Internet. This Article takes the discussion of Internet privacy protection in a new and very different direction by reexamining the U.S. Internet privacy regime from the perspective of a broader cultural/historical analysis and critique. The perspective adopted is that of Alasdair MacIntyre's account of the disarray in Enlightenment and post-Enlightenment discourse about morality and human nature and the accompanying disappearance of rational justifications …

Civilian Immunity And The Rebuttable Presumption Of Innocence, James M. Donovan

Law Faculty Scholarly Articles

"Terrorist" is a word that at once vilifies and justifies, serving the same function in today's politics and popular imagination as was served by the term "Nazi" a half century ago, or "communist" thereafter, or "witch" in our colonial days, in that it is "always, or even necessarily, wrong." Few appellations today are as effective to ostracize a person, movement, or organization from civilized company, and an astonishing array of actions and reactions can be fully warranted when having as their intent a response to the mere threat -- much less an actual act -- of terrorism.

This Essay does …

Baby Steps Or One Fell Swoop?: The Incremental Extension Of Rights Is Not A Defensible Strategy, James M. Donovan

Law Faculty Scholarly Articles

The problem of incrementalism emerges from the common practice of limiting certain rights only to groups on certified lists. Section I reviews this problem of the list, and how the failure of lists to include gay men and lesbians profoundly impacts their daily lives. Possible strategic responses to this problem (such as doing nothing, interpreting the current list to include us, eliminating the list altogether, or expanding the list to include us explicitly) are considered in Section II, concluding by focusing on a special kind of gradualism, list incrementalism. List incrementalism occurs when a right is extended to new groups …

An Ethical Argument To Restrict Domestic Partnerships To Same-Sex Couples, James M. Donovan

Law Faculty Scholarly Articles

For purposes of this Essay, the preservation of marriage in its present superior status, albeit not necessarily in its present form, constitutes a good. Further, it is a very high good within the hierarchy of values. Within the arena of domestic relations, in fact, there is no higher good. Marriage is the ground from which all other relations in an ordered society spring.

Extremists aside, gays and lesbians desire the right to marry because we value the institution, and we will herein take this state of affairs to be "good." That cannot be overstated. We like marriage, we appreciate what …

A Philosophical Ground For Gays' Rights: "We Must Learn What Is True In Order To Do What Is Right", James M. Donovan

Law Faculty Scholarly Articles

A major platform of gays' rights seems to be that gays are entitled to social and political rights because, in fact, they are not different from the heterosexual majority when one looks past the definitional criterion of sleeping with the same sex. Any other differences, they claim, are "myths" and do not exist. From this perspective, without investigating bedroom behavior, one could never tell who is gay and who is not: Gays are just like "regular" people, the line goes, so they should be treated like them. "The best hope for acceptance," writes one Ann Landers reader, "is to show …