In a budget memo released in late March, the Environmental Protection Agency (EPA) proposed eliminating two programs that focus on limiting exposure to lead paint. The suggested proposal would eliminate as much as $16.61 million in funding and over 70 full-time staff members. While the current federal government is looking to get rid of as much federal oversight as possible by transferring powers and responsibilities back to the states, environmental and public health advocates are extremely concerned about the hazardous consequences for citizens–particularly children.

History of Lead and Lead Paint Use

Lead is a naturally-occurring metal found in the Earth’s crust. As one of the earliest discovered metals in human history, lead quickly gained popularity due to its corrosion resistance and low boiling point. In ancient times, “sugar of lead” was used by Roman winemakers as one of the first artificial sweeteners. Up until the 19th century, white lead pigments were widely utilized in paints by artists, as the durability of lead made it an ideal paint additive. Lead-based paint was also used in the U.S. in the 1920s, though several European countries had already banned the use of it.

Usage of lead-based paint started to decline in the 1940s. In 1971, the Lead-Based Paint Poisoning Prevention Act (LBPPPA) was passed, which aimed to phase out lead paint use in housing built with federal dollars. Lead paint was eventually banned altogether by the American government in 1978.

Lead Poisoning

Lead poisoning occurs when you absorb too much lead by breathing or swallowing it. The neurotoxic effects of lead are substantial, and children are particularly susceptible. When the LBPPPA was passed in 1971, a blood lead level of 60 micrograms per deciliter was considered safe. It wasn’t until 1991 that the Centers for Disease Control and Prevention (CDC) lowered the “acceptable” blood lead level to nine micrograms per deciliter or less. That number has since been lowered again, and there is still no known level of lead exposure that is considered safe.

“Lead Paint” Courtesy of Mike Mozart : License: (CC BY 2.0)

Lead-based paint, which also includes any lead-contaminated dust, is one of the most common causes of lead poisoning. According to a 2011 national housing survey, more than a third of housing units across the nation contain lead-based paint. Risk of exposure is particularly high in older homes with flaked or chipped paint.

Some neurological and behavioral effects of lead poisoning are considered to be irreversible, and it’s estimated that 2.6 percent of American preschool children have a blood lead concentration over 5 micrograms per deciliter–the current level at which the government recommends public health intervention. Children may experience developmental delay and learning difficulties as a result of lead exposure. Most lead poisoning in children occurs from eating chips and flakes of deteriorating lead-based paint. Children with pica, a disorder which leads to a compulsive appetite to consume non-food items, are especially at risk of ingesting lead.

Lead Paint Programs

In October 1992, Congress passed the Residential Lead-Based Paint Hazard Reduction Act (Title X of Public Law 102-550). Title X amended the Toxic Substances Control Act, and was designed to develop a national strategy to address lead-based paint risks in all housing. Congress promulgated Title X after concerns that low-lead poisoning was widespread amongst American children, particularly those under six years old and minority and low-income populations.

EPA’s Proposed Budget Cuts

On March 31, 2017, a 64-page budget memo covering the EPA’s  2018 fiscal year was released by the Washington Post. The memo showed that officials within the EPA want to eradicate two programs that reduce children’s exposure to lead paint. One of the programs at risk is the Lead Risk Reduction Program. The new budget would slash $2.56 million from its funding and lay off about 73 full-time equivalent employees. This program requires professional remodelers to participate in training to learn safe practices for stripping away lead-based paint in homes. The program was created through an EPA regulation in 2010, which mandated federal certification for renovators.

Lead-based paint programs run by the EPA are also potentially at risk of losing $14.05 million. The EPA has been offering financial assistance to states and tribal jurisdictions, under Section 404(g) of the Toxic Substances Control Act, since 1994. States and tribal programs are given federal money to address lead-based paint risks. Money is granted to develop or carry out authorized lead-based paint activities programs; authorized lead pre-renovation education programs; or authorized renovation, repair, and paint programs.

While a spokeswoman for the EPA stated that the cuts are intended to give local and state governments the authority and responsibility to fund their own entities, the vast majority of states are unable to do so. Only fourteen states are actually able to operate programs which train contractors in removing lead paint. The rest depend on the federal government to successfully run their programs.

These changes come after a Trump Administration order to reduce the EPA’s overall budget by 31 percent. The EPA has proposed eliminating 25 percent of its employees and scrapping 56 programs including: lead reduction programs, water runoff control, and pesticide safety.

Environmental Racism?

Between 1997 and 2001, the CDC found that 60 percent of children who were reported with confirmed high blood-lead levels were black. Children living and playing in inner cities are more likely to be exposed to lead blowing across playgrounds. A 2015 analysis by the Huffington Post uncovered a strong correlation between high percentages of black populations and high lead poisoning rates. Between 1999 and 2004, black children were 1.6 times more likely to test positive for lead in their blood than white children. In Detroit, where 84 percent of the population is black, eight percent of children tested had elevated blood-lead levels in 2013.

Low-income and minority populations are far more likely to live in neighborhoods with dilapidated homes, thereby elevating their risk of exposure to lead paint. Other legal and environmental advocates note that the cuts to these programs will set the U.S. back decades in preventing lead poisoning and only stifle revenue streams. In other words, the government is likely dooming low-income and minority citizens to toxic living conditions.

CDC Lead Poisoning Prevention

The CDC still has programs to help study and eliminate childhood lead poisoning in America. The Lead Contamination Control Act of 1988 authorized the CDC to initiate these efforts. As a result, the CDC Childhood Lead Poisoning Prevention Program was created which helps to develop policies to prevent childhood exposure and poisoning, educate the public and health care providers, provide funding to state and local health departments, and support research to determine the efficacy of prevention efforts.

To date, the CDC has funded nearly 60 childhood lead poisoning prevention programs; developed the childhood blood lead surveillance system, which allows states to report their data to the CDC; expanded public health laboratory capacity; and provided training to public health professionals. The CDC, U.S. Department of Housing and Urban Development, EPA, and other agencies have created a federal interagency strategy to achieve the elimination of childhood lead poisoning as a public health issue by 2020.

Conclusion

While lead-based paint was banned almost forty years ago, its persistence in homes across the country is still alive and well to this day. Pre-1980 American housing contains upwards of three million tons of lead in the form of paint. If the EPA strips these lead reduction programs of funding, this nation will continue to have a high risk of lead exposure for children and adults. Since 36 states rely on federal money to keep programs running, the EPA’s proposed budget is establishing a permanent lead-based environment for the country’s most vulnerable populations.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post Why is the Trump EPA Budget Removing Lead Paint Protection Programs? appeared first on Law Street.

The Voting Rights Act of 1965 has long been considered a critical piece of federal legislation in the Civil Rights Movement. Enacted to prohibit racial discrimination in voting, specifically, it has protected racial minorities from unfair and predatory voting regulations like literacy tests, poll taxes, character tests, and property-ownership requirements, to name a few. In 2013, the Supreme Court decided on a case that struck down key provisions of the act, stating that they were based on old circumstances that had no logical connection to present day.

Since that decision, there have been numerous disputes occurring in states that were once subject to the old provisions of the Voting Rights Act. Lawmakers in several states–many southern–have started passing legislation with more stringent requirements to vote. It begs the question, is the Voting Rights Act still relevant and effective today?

History of the Voting Rights Act of 1965

The Voting Rights Act was signed into law in 1965 under President Lyndon B. Johnson during the height of the Civil Rights Movement. It was signed in the wake of “Bloody Sunday,” the infamous voting rights march from Selma to Montgomery where 600 people, including current Congressman John Lewis, were brutally beaten by Alabama state troopers. The Voting Rights Act was meant to eliminate discriminatory election practices, as states were still resistant to enforcing the Fifteenth Amendment, which declared that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

Section 2 of the act mimicked the language of the Fifteenth Amendment by applying a nationwide prohibition on literacy tests to deny citizens of the right to vote. Moreover, the act also contained other special provisions that only applied to particular jurisdictions. Under Section 5, the act required that specific jurisdictions which attempted to pass new voting practices or procedures needed to receive “preclearance” from the Attorney General or the U.S. District Court for the District of Columbia. Section 4(b) of the act defines eligible districts as those which had a voting test in place as of November 1, 1964 and less than a fifty percent turnout for the 1964 presidential election.

For years, the Supreme Court continually upheld the constitutionality of the Voting Rights Act, including Section 5. This included thwarting racial vote dilution through discriminatory annexations, redistricting plans, election method changes, and changes in voter registration standards and procedures. The section was originally enacted for five years, but has been renewed continually since its enactment.

Shelby County v. Holder

In 2013, the Supreme Court ruled in the case of Shelby County v. Holder. The case, which was out of Shelby County, Alabama, concerned both Sections 4(b) and 5 of the Voting Rights Act. Shelby County sued Eric Holder, the Attorney General at the time, arguing that Section 4(b) and Section 5 were facially unconstitutional, and sought a permanent injunction against their enforcement.

After making its way through the lower courts, it finally reached the Supreme Court. The justices had to decide whether the renewal of Section 5 under Section 4(b) restrictions exceeded Congress’ authority under the Fourteenth and Fifteenth Amendments, in turn violating the Tenth Amendment and Article Four of the Constitution.

The Supreme Court held, in a 5-4 opinion, that Section 4 of the Voting Rights Act was unconstitutional. Essentially, the Court stated that the current formula conflicted with equal sovereignty of the states, as the disparate treatment of states was based on forty-year-old facts, which had no relationship to present day. As Chief Justice John Roberts wrote, “Our country has changed and while any discrimination in voting is too much, Congress must ensure that the legislation is passes to remedy that problem speaks to current conditions.”

In Justice Clarence Thomas’ concurring opinion he argued that Section 5 was also unconstitutional, contending that the blatant discrimination against certain voters that Section 5 was intended to protect against no longer existed. According to Justice Thomas, Congress cannot justify the burden of Section 5 without blatant discrimination.

Current Voting Rights Disputes

Since the court’s decision in 2013, many former preclearance states in the South are now embroiled in legal challenges surrounding voting laws. In Texas, the federal district court recently ruled that Senate Bill 14, which required voters to show a form of photo ID before casting a vote, had a discriminatory effect. Senate Bill 14 was passed in 2011, but was blocked by the preclearance requirement of the Voting Rights Act. After Shelby County v. Holder, Texas officials said they planned to enforce the law.

Lawmakers in North Carolina passed a photo ID requirement, and curbed early-voting hours, same-day voter registration, and limited other registration and voting options. This was eventually struck down by the Fourth Circuit, which noted that the provisions targeted African-Americans with “almost surgical provision.” The Supreme Court declined to stay the ruling in a 4-4 split after Justice Antonin Scalia passed away last year. North Carolina has asked the court to hear the case fully, and now that the court has added Justice Neil Gorsuch it’s possible that it could grant the petition for review.

Just recently, a lawsuit has been brought by the Lawyers’ Committee for Civil Rights Under Law on behalf of five organizations regarding the special election slated to take place in June 2017 in Georgia to replace Republican representative Tom Price. Since the Democrat, Jon Ossoff, failed to achieve the fifty percent threshold needed to win outright, a special election will decide his fate, against Republican Karen Handel. The suit alleges that the Georgia law disenfranchises citizens by requiring voters to have registered for the first round to vote in the runoff. Consequently, since the law means that voters would have had to register in March 2017 to vote in the runoff (before the first election even occurred), a large number of Georgians may be completely stopped from voting in the June 2017 election.

It is Still Relevant?

Just four short years ago, the Supreme Court in Shelby County v. Holder was not hesitant to point out how key sections of the Voting Rights Act were not relevant to modern times. The majority opinion concluded that since the act had worked so well in preventing racial discrimination, it was no longer needed. However, given the numerous laws that have sprung up since the court’s decision, it seems that the act is just as necessary today.

After the act’s initial enactment, it had an instant effect on decreasing racial discrimination in voting. Not only did the number of registered African-American voters increase substantially, but the number of African-Americans elected to office also grew. Moreover, economic growth occurred because of the act. A study of 40 North Carolina counties covered by the act found that those counties experienced larger growth in African-American incomes, occupational status, and attracted more revenue from county and other government sources.

Now, without Section 4(b) in effect to determine which jurisdictions must receive approval of any voting law changes, Section 5 has now become relatively inoperative. Thus, this has allowed states to change laws and policies without any federal oversight.

Conclusion

After Shelby County v. Holder, many former preclearance states jumped at the opportunity to pass more restrictive voting requirements. While lower courts have found subsequent legislation to contain discriminatory intent or effect, the Supreme Court has yet to weigh in on them. Thus, with a full court now in place after Justice Gorsuch’s swearing-in, the legacy of the Voting Rights Act is still up for debate.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post Is the Voting Rights Act of 1965 Still Effective? appeared first on Law Street.

For most countries, health care is often a costly component of national budgets. That being said, the sheer volume of federal money spent on a nation’s health care system does not necessarily predict its efficacy. For example, the American health care system–with its rising premiums, drug costs, and glaring loopholes–could certainly be more efficient. The U.S. system has consistently ranked poorly among other industrialized nations, despite having the most expensive health care system in the world–17 percent of its GDP. As the White House grapples with how to handle health care under the new Trump Administration, American politicians may look to other countries for guidance.

One such country potentially worth emulating is the Netherlands. According to the global Prosperity Index, the Netherlands has one of the best health care systems in the world based on the country’s basic mental and physical health, health infrastructure, and availability of preventative care. Could this country’s critical health care reform and system structure be advantageous for the U.S.?

Netherlands Health Care Reform

In 1941, the Netherlands introduced a mandatory health insurance plan for low and middle income citizens. It provided most of the country’s population with basic health insurance, while wealthier citizens purchased private plans. But as the program grew, so did spending. In an effort to protect access to health care, the government passed the Health Care Prices Act in 1982 to control physician fees and revenues. Over the following decades, the Dutch started working toward creating a system that merged competition with universal access to health care.

Then, in 2006, the Netherlands passed the Health Insurance Act of 2006. This broad health reform law was intended to improve the health care system’s quality and efficiency by introducing uniform health insurance. Prior to the 2006 health insurance reform, the Netherlands health care system was comprised of four parts: long-term care insurance, supplementary private health insurance, social health insurance, and alternative private health insurance. After the reform, a new universal “private” social health insurance emerged, and long-term care and supplementary private insurance were maintained.

“Holland” Courtesy of Moyan Brenn : License (CC BY 2.0)

All people who legally live and work in the Netherlands are mandated to buy health insurance from a private insurance company. All insurers are required to accept each applicant, regardless of pre-existing conditions. Moreover, the plan is financed with individuals’ annual income-based contributions. Over half of all Dutch households also receive a subsidy from the government based on income. Since the system relies solely on a flat tax related to salary, the Dutch government does not have to shell out many resources to provide individuals with subsidies.

Today, the health insurance system appears to have more transparency than before. Consumers also have unrestricted choice between all insurance companies on the market. Interestingly, the Dutch approach is not a single-payer system. Instead, it combines mandatory universal health insurance with competition amongst private health insurers, creating more of a “risk equalization” system

Netherlands Health Care Structure

The Dutch do not aggressively regulate health care prices; instead, they’ve chosen to hone in on risk selection and primary care.  By tracking a myriad of factors such as: age, sex, pharmaceutical history, and hospital use, the government is able to determine which individuals are more risky to insure and how much it will potentially cost to cover them in the future. The government then pays more money to insurance companies taking on sicker patients. In an effort to offset these costs, each citizen is required to sign up for a general practitioner who acts as a “gatekeeper” to more expensive care and services. This allows the Dutch to cut back on unnecessary–and often costly–visits to specialized doctors. Individuals who are unhappy with their care have the option to change their insurance policy each year.

Insurers are also mandated to place all profits into a shared fund. That money is then distributed to other insurance companies whose patients are sicker than anticipated. Essentially, the Dutch have made insuring only the healthy a less viable and effective business strategy for insurance companies. The government has also set aside a health care budget, and still sets the price on most services. Since physicians are paid a lump sum each year–rather than fee-for-services–there is less incentive for them to overprescribe medications.

But no health care system is completely free from flaws. Cost-related access problems–not filling prescriptions, skipping recommended tests or treatments, or not visiting a doctor because of cost issues–still plague the Netherlands. However, timely access to health care, including elective or non-emergency surgeries, is much easier to receive in the Netherlands.

In many ways, the Dutch health care system is now an efficient “managed competition.” According to the United Nations’ 2017 World Happiness Report, the Netherlands ranked an impressive sixth out of more than 150 countries. While many factors were considered, health care coverage and life expectancy were integral in determining the overall happiness rankings.

What Can the U.S. Do?

In 2008, researchers noted that implementing a Dutch-like system in the U.S. could be attractive to many American citizens in an article entitled “Universal Mandatory Health Insurance In The Netherlands: A Model For The United States?” Consumer choice, in particular, is an aspect of the Netherlands’ health care overhaul that is incredibly desirable to Americans. The Affordable Care Act (ACA) may have been the U.S.’ first step toward implementing a health care system similar to the Dutch (insurance policy choices for consumers, attempts to insure more of the population, and coverage regardless of pre-existing conditions), but the system still has its glaring issues.

In 2014, the Commonwealth Fund produced a report that ranked the U.S. third out of 11 wealthy nations in timelines of care and effective care overall.  The Dutch, on the other hand, can provide universal coverage with very low out-of-pocket costs, while still maintaining speedy access to services. According to the study, the U.S. also ranked last on measures of equity; Americans with low incomes are far more likely than counterparts in other countries to not visit a physician when ill. Poor rankings in equity, efficiency, healthy lives, and cost-related access problems contributed to the U.S. ultimately ranking last overall in the study for the fifth time.

While the Dutch have managed to create an institutional framework to deliver universal access to health care along with market competition and consumer choice, the researchers found that the system still struggles to provide the most high-quality care. Meanwhile, the U.S. has integrated many high-caliber delivery systems, but fails to provide universal access to basic health insurance at an affordable rate. U.S. health care still remains the most expensive in the world, and yet it manages to underperform relative to other countries.

The U.S. and the Netherlands are perhaps most divided in the regulation of insurance companies. The ACA left a significant amount of diversity in the insurance marketplace, making it nearly impossible for the program to be fully transparent and simplified with the vast amount of choices. Obamacare offers four different varieties of insurance packages, while the Dutch program offers only one–which is probably most comparable to the Obamacare silver plans. Insurers in the U.S. are able to charge older customers up to three times as much as younger ones, adding even more complexity to the American system. Other researchers note that America’s “spend more, get less” model is tied to other issues–safe, affordable housing; employment prospects; reliable transportation; and consistent, well-balanced meals–that may be even more important to a population’s overall health than just specific medical care.

Conclusion

Building a perfect health care system is downright difficult, regardless of the country or government structure. However, the efficacy and success of the Netherlands’ universal system may be something the U.S. can learn from, and perhaps even integrate into its own system. While there is a lot of support for single-payer (“Medicare for all”), the Dutch system of health care isn’t too far removed from what President Barack Obama attempted to implement through the ACA. With more efficiency and management of the health insurance market, it’s possible the U.S. could save billions of dollars following a more Dutch-like system of health care.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post Could America Learn a Thing or Two From the Netherlands’ Health Care? appeared first on Law Street.

While on the campaign trail, President Donald Trump repeatedly vowed to “repeal and replace” the Affordable Care Act (commonly known as “Obamacare”). However, his first attempt at dismantling the federal statute crashed and burned before a single vote was even cast due to divisions among conservative and moderate Republicans on Capitol Hill. If passed, Trump’s health care bill would have slashed federal funding to Medicaid.

Now, in the wake of the embarrassing defeat, Trump’s fledgling administration is still looking to give the American people a better option for health care. Some experts believe this could still come in the form of reforms to Medicaid and Medicare, which have historically been mired in controversy.

So, lets take a look at how these health care programs, both enacted in 1965, have evolved over the years. How has the Affordable Care Act affected them? And what is the fate of these programs if a new health care bill is finally passed?

What is Medicaid?

Medicaid is a social health care program for certain individuals and families in the U.S. with limited income and resources. It was created through the Social Security Amendments of 1965–signed into law by President Lyndon B. Johnson–under Title XIX of the Social Security Act. It essentially acts as government insurance for those who are unable to pay for traditional health care costs.

The federal government matches state spending on Medicaid to enable states to provide medical assistance to residents who meet their individual eligibility requirements. While the program is jointly funded by state and federal governments, it is managed at the state level. Thus, every state has an immense amount of autonomy in determining who is eligible for the program. Since 1982, all 50 states have participated in the program–despite not being required to do so.

The Affordable Care Act (ACA) significantly expanded Medicaid eligibility, extending coverage to adults under 65 years of age who have incomes up to 133 percent of the poverty line, as well as making it available for low-income adults without dependent children. However, the Supreme Court’s ruling in National Federation of Independent Business v. Sebelius determined that states did not have to agree to the expansion. Thus, many states have continued to stay at pre-ACA funding and eligibility levels.

As a whole, Medicaid provides a variety of services for some of America’s most vulnerable populations. According to the National Council for Behavioral Health, Medicaid is the single largest payer of mental health services, paying for 25 percent of all mental health care and 20 percent of all addiction care. Four out of 10 children are treated under Medicaid, and a study published in Women’s Health Issues found that almost half of the 4 million births each year in the U.S. are covered by the program. Medicaid also often covers the costs of nursing homes and other long-term care options for elderly patients.

Medicaid Structure Explained

While poverty is a primary requirement for Medicaid eligibility, it alone does not qualify citizens for the program. Other categories, such as pregnancy, age, and disability, may also qualify a citizen for Medicaid eligibility. Interestingly, Medicaid also provided the largest portion of federal money for people with HIV/AIDS until Part D of Medicare was implemented (but more on that later). In most states, adults who receive Supplemental Security Income benefits (a federal income supplement program) are automatically enrolled in Medicaid. While state Medicaid programs are required by federal rules to cover comprehensive dental services for children, coverage for adult dental services is optional and oftentimes limited.

Some states choose to utilize the Health Insurance Premium Payment Program (HIPP). Under HIPP, a person under Medicaid is eligible to have private health insurance paid for by the Medicaid program. Essentially, the state pays the private insurance premiums for beneficiaries. States may also combine administration of Medicaid with other programs, such as the Children’s Health Insurance Programs (CHIP), for ease.

What is Medicare?

Medicare, in contrast, is a single-payer social health insurance program specifically for those aged 65 and older that has been administered by the federal government since 1966. With President Lyndon B. Johnson at the helm, Congress enacted Medicare in 1965 under Title XVIII of the Social Security Act. Medicare provides health insurance to some individuals under the age of 65 with disabilities as determined by the Social Security Administration. For example, any individuals with end stage renal disease or amyotrophic lateral sclerosis (ALS) are eligible for Medicare.

Those who have worked and paid into the system through payroll tax are eligible once they reach age 65, regardless of income or medical history. Currently, there are a number of private insurance companies across the U.S. under contract for administration of Medicare. It is funded primarily through payroll taxes, general revenues, and premiums paid by Medicare beneficiaries.

In 1966, Medicare spurred racial integration, by making desegregation of waiting rooms and hospital floors a condition of receiving Medicare funds. According to David Barton Smith, a professor emeritus in health-care management at Temple University, nearly 2,000 hospitals had integrated by July 1966 in order to remain connected to federal money for the program. Although some hospitals resisted integration, and those who complied found ways to restrict multi-bed rooms, Medicare still played an important role in integrating the nation’s hospitals.

Medicare Structure Explained

Structurally, Medicare is complicated. There are four parts: Part A, hospital and hospice insurance; Part B, medical insurance; Part C, Medicare Advantage plans; and Part D, prescription drug plans. Hospital and hospice insurance covers inpatient hospital stays, care in a skilled nursing facility, hospice care, and some home health care. Medical insurance under Part B is optional, and helps insured members pay for services and products that are not covered under Part A–usually outpatient care. Patients who miss their initial enrollment period for Part B incur a lifetime penalty of 10 percent per year on the premium.

Medicare Advantage plans under Part C are Medicare plans sold through private insurance companies. These plans are required to offer coverage that meets or even exceeds standards set by Original Medicare. However, they do not have to be identical in covering every benefit. These are considered “capitated” health insurance plans, which is a payment arrangement that pays a physician or group of physicians a set amount for each enrolled person assigned to them for a particular period of time, whether that person seeks care or not. The difference between Part C plans and Original Medicare is likened to the standard HMO versus non-HMO plan decisions other citizens make.

Finally, Part D covers prescription drug plans. It was created in 2003 under the Medicare Prescription Drug, Improvement, and Modernization Act and went into effect in 2006. Anyone with Part A or Part B is eligible for Part D, though the coverage is not standardized. Plans choose which drugs to cover, though they must cover at least two drugs in 148 categories and cover substantially all drugs in six protected classes (including antidepressants, antipsychotics, anti-convulsants, immuno-suppressants, as well as cancer, AIDS, and HIV drugs).

Medicaid and Medicare under the ACA

Medicaid was expanded extensively under the ACA. Currently, 73 million people are enrolled in Medicaid, and roughly 11 million are covered under the program because of the ACA expansion. States who chose to reject the Medicaid expansion are slowly facing the consequences of that decision. Reports issued by the Urban Institute, Lewin Group, and Rand Corp. have stated that these states are slated to lose billions of dollars–money that their own residents have paid in federal taxes.

The ACA expansion also made a number of changes to Medicare; many provisions were specifically designed to reduce the cost of Medicare. It was designed to help Medicare patients afford their prescription drugs by closing the Part D coverage gap, often referred to as the “donut hole,” by year 2020.

Furthermore, premiums under Part B and Part D were restructured; as a result, the wealthiest people with Medicare had their contributions increased. More oversight, stronger standards, and provider screenings were also enacted to prevent Medicare fraud and abuse.

What’s Next?

According to a recent Pew Research Center survey, 60 percent of Americans feel that the government should be responsible for ensuring everyone has health insurance. This number increased from 51 percent last year and has now reached its highest point in roughly a decade. Those on the other side of the argument–individuals who believe the government has no responsibility to provide health insurance for all–do, however, believe that the government should continue Medicaid and Medicare.

Following the death of Trump’s heath care bill that would have repealed and replaced the ACA, some states are looking to see if participating in the federally-funded Medicaid expansion is a lucrative path to take. As of last count, 19 states have opted out. Some contend that an expansion of Medicare may be a way to improve upon the ACA. Potentially lowering the age of eligibility of Medicare to 50 may also make private individual health more affordable. Moreover, offering Medicare as an option on health insurance exchanges could bring in younger people, reducing Medicare’s overall average costs by not just insuring those who cost the most to insure.

In contrast, there is also the option of implementing a full single-payer healthcare program, considered “Medicare for All”–a system that Senator Bernie Sanders has advocated for immensely. Under a single-payer system, any links between employment and health insurance would cease, as well as expanding the net for people over 65 to all Americans. Thus, the entire spectrum of care for every American citizen would be covered: primary, vision, oral, mental health, and more. Instead of paying a premium to for-profit insurance companies, Americans would merely pay a tax and employers would also pay taxes through payroll. Senator Sanders is poised to reintroduce the single-payer plan in the Senate, on the heels of the failed Republican ACA repeal attempt.

Conclusion

Despite the problems with the current health care system, such as rising premiums and fewer choices for citizens, Medicaid and Medicare have arguably been success stories in their more than 50-year history. Providing insurance and health care to the country’s most at-risk populations–the poor, the disabled, and elderly–is something to be lauded. What lies ahead for the programs, however, is up in the air until a new health care reform bill is passed.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post The Evolution of Medicare and Medicaid in America appeared first on Law Street.

America’s education system has become increasingly more complicated in recent years, as U.S. students continue to lag behind many other industrialized nations in academic achievement. In new data from the Programme for International Student Assessment (PISA) on international math and science assessments, U.S. students ranked an unimpressive 38th out of 71 countries in math and 24th in science. While the U.S. is one of the most advanced nations on the planet, public education remains a dismal system in the states. Many seeking to improve the status of education advocate for school choice, touting voucher programs and charter schools as the ideal method to fix America’s broken school system. The guaranteed effectiveness of these methods, however, is questionable given extensive research–begging the question: is school choice the right choice?

What is School Choice?

School choice allows for parents to pick any traditional public school or charter school in a particular school district. The movement for school choice is attributed to Milton Friedman’s 1955 essay, “The Role of Government in Education,” in which he proposed giving families redeemable vouchers for educational services. Following the essay’s release, the concept of freedom of choice in education gained popularity.

Arguably, school choice is a favorite among large corporations and more wealthy conservatives, although some Democrats, including President Barack Obama, support the idea (Obama called for expanding charter schools when first addressing Congress in 2009). The education style is backed mostly by right-wing organizations and business such as the Heritage Foundation, a conservative think tank, and the Koch brothers, some of the world’s richest and best known political donors. Even with the support of some moderate conservatives and liberals, the primary backers of school choice are extremely conservative activists seeking to radically transform public education in America. While school choice is touted as a social justice movement and a program committed to procuring effective education for all children, it does have some serious issues.

Research has found that school choice actually widens the achievement gap between white and black children. Moreover, it often advocates dismantling public education, rather than attempting to make it stronger. It has often become a mechanism of privatizing education and defunding public schools, starving the remaining public institutions of funds and quality teachers.

The concept of school choice may be fueling the transformation of public education into a business. The reason many corporations favor the school choice model is that it allows the wealthy to profit off of the education system. Teachers may also experience more punitive environments; as parents begin to choose schools because of performances on standardized tests, teachers will receive the full blame when students score poorly on a high-stakes test. Making a teacher the scapegoat for lackluster performance shifts blame to an individual, rather than tackling the systemic problems in education.

Charter Schools

Charter schools have become an increasingly popular choice around the country. These schools are publicly funded, but are governed by appointed boards and tend to be run by private companies. Currently, 43 states and the District of Columbia allow charter schools, with 22 states having some sort of cap that limits the number of charter schools.

Charter schools were first created in Minnesota and endorsed by Bill Clinton in the 1990s. Specifically, charter schools are public schools that are accountable via a contract or “charter” to public bodies; if they fail to meet the agreed-upon terms of the charter, they can be shut down quickly. Charters are also accountable for student performance on standardized tests. However, in a 2009 Stanford study, only 17 percent of charter schools were found to provide better education than public schools.

Charter schools may also have negative consequences for traditional public schools. A 2015 study from Michigan State University’s Education Policy Center determined that exceedingly high percentages of charter schools had a devastating impact on poorer school districts in Michigan, such as Detroit. Unlike other states, roughly 80 percent of Michigan’s charter schools are run by for-profit companies. Once charter schools reached 20 percent or more enrollment, it became far more difficult for the traditional schools to compete.

Vouchers

School vouchers are government certificates, backed by state dollars, that allow parents to choose which school to send their children to, including private or religious institutions. Vouchers have come under intense criticism for diverting public money away from public schools and have been accused of disproportionately assisting wealthy white families, while neglecting minorities in poorer communities–ultimately reducing diversity in classrooms and  fostering segregation. The National Education Association, the largest labor union in the U.S. representing public school teachers and other support personnel, is a strong, vocal opponent of school vouchers.

Those who support vouchers argue that the programs are actually more diverse. Many voucher programs are targeted to specific populations, such as low-income students or students with disabilities. Moreover, research conducted in Milwaukee and Washington, D.C. found that money was not necessarily drained from public schools because of school vouchers. Instead the program assisted in saving Wisconsin money and infused the city of D.C. with federal funds in exchange for passing a voucher program.

But major studies of voucher programs tell a different story. In late 2015, results from a study on the Indiana voucher program found that voucher students who transferred to private schools experienced significant losses in achievement and no real improvement in reading. In a study of Louisiana’s program, researchers found large negative results in both reading and math; elementary school students who started in the 50th percentile in math and then used a voucher to transfer to a private school plummeted to the 26th percentile in just one year. Finally, a third voucher study in Ohio uncovered that students who used vouchers to attend private schools actually performed worse academically compared to closely matched peers attending public school.

Secretary of Education Betsy DeVos and School Choice

The appointment of Besty DeVos, a conservative philanthropic billionaire, as the Secretary of Education, will likely ramp up lobbying for school choice programs. As the new Department of Education head, she is committed to making vouchers and other school choice policies the heart of education reform. DeVos, someone with no real public school experience, has even stated that historically black colleges and universities were “pioneers” of school choice. While that is certainly not the case, her statement illuminates her naivety and the new administration’s willingness to push school choice programs.

“Betsy DeVos” Courtesy of Gage Skidmore : License (CC BY-SA 2.0)

Over the years, DeVos has been ardent supporter of vouchers for private religious schools. DeVos was raised in the Christian Reformed Church, a conservative Dutch Calvinist denomination. In a 2001 interview for The Gathering, a group focused on advancing the Christian faith via philanthropy, DeVos stated that there were “not enough philanthropic dollars in America to fund what is currently the need in education…Our desire is to confront the culture in ways that will continue to advance God’s kingdom.”

Critics note that DeVos is attempting to change the definition of school choice to allow taxpayer money to follow students to any private school through vouchers. This implementation of “universal school choice” would allow funds to funnel into religious private schools. Trump’s education proposal calls for allotting $20 billion in federal money to help parents choose schools that are not “failing,” and instead send students to charter, private, or religious schools.

Conclusion

Many educators oppose the idea of school choice and privatizing education, noting that diversity is a critical aspect of well-rounded learning. Private schools may encourage too much student withdrawal, sheltering students from the rigors of real-world experiences with such specialized educational amenities and services. The research surrounding the efficacy of charter schools and voucher programs appears to tell a more complex story. More school choice does not necessarily lead to better results. Moreover, the U.S. should tread carefully when attempting to privatize the public education system. The American public school system’s ultimate goal should be ensuring that students are equipped with the knowledge necessary to become responsible, informed, and contributing citizens.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post School Choice: Is It the Future of the American Public School System? appeared first on Law Street.

One of President Donald Trump’s main campaign promises was to “build a wall” on the border of the U.S. and Mexico. During his first few days in office, President Trump signed an executive order on border security and immigration enforcement improvements. In Section 2 of the order, it reads that it is the policy of the executive branch to: “secure the southern border of the United States through the immediate construction of a physical wall on the southern border, monitored and supported by adequate personnel so as to prevent illegal immigration, drug and human trafficking, and acts of terrorism.”

Many of President Trump’s supporters are also ardent fans of the construction of a wall along the U.S.-Mexico border. Despite encountering intense opposition from Democrats and some Republicans, the Trump Administration appears to be committed to beginning construction as soon as possible. However, there may be roadblocks ahead for the massive security project, such as issues of eminent domain and private citizens blocking or severely slowing construction of the wall, in addition to environmental concerns and waivers that must be obtained before beginning construction.

Border Wall Plans

Border security is critically important to our overall national security. As noted by the order, aliens who illegally enter the U.S. without inspection or admission present “a significant threat to national security and public safety.” President Trump’s executive order seeks to expedite determinations of any apprehended individual’s claims that they are eligible to remain in the U.S., as well as promptly remove any individuals whose claims have been lawfully rejected.

“Mexico / US Pacific Ocean Border Fence” Courtesy of Tony Webster : License (CC BY 2.0)

A critical component of Trump’s presidential campaign was regaining control of America’s borders. Now that he’s president, the particulars of how he will finance the massive border wall are still up for debate. The wall is estimated to cost $21.6 billion (though other estimates put it anywhere between $8 billion to $25 billion). The executive order signed by Trump in January contains no mention of the cost of construction. Mexico has repeatedly stated that not only will it not pay for the wall, but it will retaliate if a border tax is imposed. The order also required government agencies to report the financial assistance they gave Mexico in the past five years, giving rise to speculation that Trump wants to redirect the aid to pay for the wall.

Currently, there are hundreds of companies looking to profit significantly from the construction of a border wall. More than 375 companies have expressed interest in participating in the project. The U.S. Customs and Border Protection agency said it would likely begin accepting prototypes in March 2017. Those that are approved will be asked to submit full proposals. Surprisingly, a Mexican company, cement maker Cemex SAB, has stated that it would be willing to provide supplies to the project. The plan to seal the border would take three phases, with over 1,250 miles of fences and walls, and would be completed by 2020. San Diego, California; El Paso, Texas; and the Rio Grande Valley in Texas are expected to be part of the first phase. A U.S. Department of Homeland Security internal report also showed that the U.S. government has begun seeking environmental waivers to build in specific areas.

Secure Fence Act of 2006

President Trump is not the first president to propose a wall between the U.S. and Mexico. On October 26, 2006, President George W. Bush signed the Secure Fence Act of 2006. The goal of the act was to build 700 additional miles of physical barriers along the U.S.-Mexico border, and authorize more vehicle barriers, checkpoints, and lighting. It also gave the Department of Homeland Security permission to use technology such as cameras, satellites, and unmanned aerial vehicles, and specifically noted that there would be at least two layers of reinforced fencing. In 2006, both Democrats and Republicans overwhelmingly supported the act, including then-Senator Barack Obama.

In 2008, Congress introduced the Reinstatement of the Secure Fence Act of 2008, which called for Homeland Security to again construct more fencing. This time it asked for an additional 700 miles of two-layered, 14-foot high fencing along the southwestern border of the U.S., but the bill never made it out of committee. The Secure Fence Act of 2006, however, was amended in 2007 to give the Department of Homeland Security discretion in determining what type of fencing was appropriate, given the different terrain along the border. A one-size-fits-all approach, according to many, including the U.S. Border Patrol (USBP), was not an effective manner to tackle securing the border.

Issues With Landowners

Once construction on the previous border wall began, the government ran into issues with landowners near the Rio Grande. Hundreds of landowners protested what they called a “government land grab” to install the fence. It resulted in 320 eminent domain cases being taken to court. In order to purchase property for the construction of the wall, USBP had to settle with private landowners. While some settled out of court, others are still fighting.

Some private property owners want more money, while others want a gate in the fence to be able to access their land on the other side. Eloisa Tamez, 81, was given a code to get through a gate to access a quarter of her three-acre ancestral property that was bisected by the 18-foot barricade. A prominent border wall opponent, Tamez battled her case in court for seven years, before she eventually lost to the government. She was awarded $56,000 for her loss of land and the inconvenience, but says she wasn’t looking for money–she wanted to keep her land without the barriers.

The government almost always wins in eminent domain or condemnation cases, but these cases can take a significant amount of time and resources to settle. Therefore, landowners fighting President Trump’s proposed border project may have the ability to slow the project down immensely. NPR analyzed more than 300 fence cases, and found that two-thirds of them have been settled, with most taking about 3.5 years for a resolution and usually involving under an acre of land. The median settlement awarded to landowners was $12,600.

Other Concerns and Considerations

Aside from the eminent domain, private property rights, and human rights concerns with building a border wall, there are also environmental considerations. Arguably, the full construction of a wall will interfere with the migration of animals and plant pollination. Immense amount of traffic around the wall will destroy flora and fauna, potentially leaving large amounts of garbage and debris in the area as well. These environmental concerns do not seem to be of much importance to those in favor of construction.

“Double Wall Near Tijuana” Courtesy of Jonathan McIntosh : License (CC BY 2.0)

Juanita Molina, the executive director of Border Action Network, told NPR that construction of the wall could cause flooding issues. A wall will profoundly affect the connectivity of species, fragmenting habitats, and block the free movement of wildlife. So, the border wall has the potential to spread detrimental consequences not just to humans, but also to other species. Additionally, building over major physical barriers, like mountains which dot the U.S.-Mexico border, make the border wall almost impossible to build.

Moreover, it is clear that the wall will disproportionately affect people of color. Militarization of the border means that minority communities will be targeted and even displaced. Millions of people live on both sides of the border. In the four states–California, New Mexico, Texas, and Arizona–on the U.S. side of the border, people of Mexican origin comprise at least a quarter of the total population, and even higher concentrations exist within 100km of the border itself.

Conclusion

The executive order signed on January 25, 2017, is still in effect. Many people who voted for President Trump view the wall as his signature campaign promise and expect to see progress made on its construction as soon as possible. Companies also seem to have an overwhelming amount of enthusiasm for profiting off the proposed construction. However, private property owners may have the most power in stalling the wall’s completion for a significant period of time, and the efficacy of a wall in actually securing the borders is certainly up for debate. For now, President Trump has promised that construction is “going to start very soon. Way ahead of schedule. It’s way, way, way ahead of schedule.”

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post Will Trump’s Border Wall Actually Be Built? appeared first on Law Street.

The Endangered Species Act (ESA) was created more than 40 years ago and is considered by many to be an overwhelming success. Rarely has legislation ever remained in its original state over several decades; however, in its long history, the ESA has only been amended four times (1978, 1982, 1988, and 2004), with the most substantial amendments occurring in 1978. Despite many political attempts to reform the act, it seems to be largely shielded from modifications.

Under a new administration, however, efforts to delist a particular species or otherwise weaken the standing law have gained significant strength. Despite the efficacy of the act, concerns over burdensome regulations and negative impacts on private property rights have many concerned that the ESA is not as streamlined as it needs to be. Hearings began in February 2017 to “modernize” the ESA, yet it is unclear exactly how “modern” this law will become.

History of the Endangered Species Act

“Male Passenger Pigeon” Courtesy cotinis : License (Public Domain)

The now-extinct passenger pigeon is largely responsible for the expansion of wildlife conservation efforts in the early 1900s. Once the most abundant bird in North America, the passenger pigeon’s sudden extinction (occurring in less than 50 years) captivated Americans who watched as the bird died out. Prior to the passenger pigeon, the whooping crane also garnered widespread attention when it began to disappear rapidly in the late 1890s, though it is still alive today.

The Lacey Act of 1900 was the first federal law to actually regulate commercial animal markets. The act made it unlawful to import, export, sell, acquire, or purchase any fish, wildlife or plants that are taken, possessed, transported, or sold in violation of any state or federal laws. That piece of legislation was later followed by the Migratory Bird Conservation Act of 1929 and the Bald Eagle Protection Act of 1940, which both met little opposition before being implemented.

Yet the official predecessor to what we now know as the Endangered Species Act was in fact the Endangered Species Preservation Act of 1966. Initially, this act provided a means of listing native species as endangered and afforded them limited protections. This also signified a shift from regulating the taking of an animal to focusing more on habitat conservation and preservation. “Taking” an animal is defined in Section 3 of the act and can occur via direct and indirect actions. In Babbitt v. Sweet Home Chapter of Communities for Greater Oregon, a Supreme Court case decided in 1995, the Court concluded that habitat modification can cause “harm” to a listed animal, thereby causing a “take.”

In 1973, President Richard Nixon sought to overhaul the current law and pass comprehensive endangered species legislation, which brought about the Endangered Species Act of 1973. Written by a team of lawyers and scientists, the new law incorporated dozens of new principles and ideas. Currently, the ESA’s stated purpose is to protect species and “the ecosystems upon which they depend.” The ESA is managed by both the U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA), which includes the National Marine Fisheries Service (NMFS). The FWS oversees terrestrial and freshwater organisms, while the NOAA handles marine species.

The Endangered Species Act Amendments of 1978 implemented some significant changes to the ESA. It attempted to “retain the basic integrity of the ESA, while introducing some flexibility which will permit exemptions from the act’s requirements.” One of the most important changes was the creation of the Endangered Species Committee, commonly known as the “God Squad.” The committee is composed of seven Cabinet-level members, and members have the authority to allow the extinction of a species–hence the nickname–by completely exempting a federal agency from Section 7 requirements (after prior consultation with the FWS and NOAA). To date, only the whooping crane and the northern spotted owl have been exempted from Section 7.

Critical Provisions

The primary goal of the ESA is to prevent the extinction of plant and animal life; an ancillary goal is to recover and maintain populations as much as possible by removing or thwarting threats to their survival. There are a few sections of the act that are considered to be the most powerful in their effect: Sections 4, 7, and 9.

To be listed, a species must meet one of the five criteria listed in Section 4(a)(1) of the act. The listing process is lengthy, involving multiple steps before a species is accepted. A species may be delisted, but only after the committee considers if the threats have been eliminated or controlled. This is based on several factors, including population size and growth, and the stability of habitat quality and quantity. Section 4 also requires the designation of a “critical habitat” within one year of a species being placed on the endangered list, though it normally occurs several years afterwards. A critical habitat includes geographic areas that contain features essential to the conservation of the species and that may need special management or protection.

Section 7 prohibits any actions that jeopardize the survival of any endangered or threatened species, as well as actions that could destroy or adversely modify critical habitats of listed species. The section requires all federal agencies to engage in the consultation process with the FWS or NOAA before engaging in any action that may threaten a listed species. Each federal agency is required under Section 7 to confer with the Secretary of the Interior on any action to ensure that such activities are “not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction of or adverse modification of” designated critical habitats. As noted previously, the God Squad has the power to exempt a federal agency from this consultation process under Section 7, if they find no reasonable and prudent alternatives to the agency’s actions.

“Threatened northern spotted owl” Courtesy of USFWS Endangered Species : License (CC BY 2.0)

Lastly, Section 9 prohibits the “taking” of a listed species. It applies to both private and public actions, and applies whether a critical habitat has been designated or not. Section 9 also forbids possessing, selling, or transporting an animal that has been obtained by an unlawful “take,” as well as other prohibitions on imports, exports, and commercial activity. Section 3 of the act specifically defines a “take” as any activity that could “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to engage in any such conduct” a listed species. Harm can occur both directly and indirectly, even via certain habitat modifications.

Proven Success Rate

Currently, there are a variety of species listed as threatened or endangered, including 374 mammals, 338 birds, 185 fish, and 138 reptile species, as well as many more insects, clams, snails, and others. The FWS also acknowledges that roughly 40 species on the list are robust enough in populations to be taken off the protected list. About one percent of the 2,000 species on the list have been delisted because they recovered from extinction.

“Bald Eagle” Courtesy of Pen Waggener : License (CC BY 2.0)

Over the course of its history, the ESA has been nearly 100 percent successful at preventing listed species from going completely extinct. Its successes include the gray wolf, bald eagle, and American crocodile, which are all now thriving species. Very few laws in the U.S. can tout such a high success rate. Only 30 species have disappeared after being placed on the list; many scientists argue that adding species to the list earlier, far before they reach the critical state of endangerment, would add immensely to the ESA’s success.

What Does the Future Hold?

There is now a push to “modernize” the ESA, which defenders of the law contend is an effort to weaken or gut the act completely. Hundreds of bills, introduced primarily by Republican lawmakers, are now seeking to delist a species or somehow weaken the ESA, though most have been unsuccessful. However, the ideal environment to implement significant changes to the act appears to be brewing on Capitol Hill.

Those in favor of overhauling the ESA argue that it imposes too many far-reaching regulatory burdens, particularly on the agricultural industry. Lawmakers point out that the ESA has had a negative impact on drilling, logging, and mining, along with stifling economic growth in these industries. Moreover, private property rights are a concern since the ESA can impose restrictions on property owners’ use of their land because of a listed species. There are estimations that roughly three-quarters of species listed under the ESA reside on private land. One lawmaker recently stated that the act has “never been used for the rehabilitation of a species,” claiming that it has only been utilized to control land.

Still, opponents of any changes to the law argue that the Obama Administration began delisting species significantly, removing a record 29 species from the ESA–more than all previous administrations combined. Modernization of the ESA, environmentalists and activists state, is merely an effort to destroy “the nation’s premier and most effective wildlife conservation law.” Some states, like California, are moving to pre-empt any significant changes to the ESA by passing legislation that would add state-level protections for species that are currently listed as threatened or endangered under the ESA.

Conclusion

Few laws have ever been as successful as the ESA, which has an almost 100 percent success rate in strengthening the population of listed species. Species take decades to recover, hence the low number of animals delisted since the act’s inception. However, there are legitimate concerns about the act’s effect on industries and private landowners. Now, with a new political landscape, significant changes to the law may be on the horizon. What that means for the hundreds of species still extremely threatened or in severe danger of extinction, is still up for debate.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post The Endangered Species Act: Should it be Modernized? appeared first on Law Street.

For many Americans, “I stand with Standing Rock” signs and chants have become all too familiar. Over the past year, the Dakota Access Pipeline has remained an extremely controversial project, putting water rights and tribal lands front and center in oversaturated news cycles. Former President Obama had halted construction of the pipeline until more environmental impacts could be considered, but the new Trump Administration has once again given the contentious project the green light. The Standing Rock Sioux tribe has vowed to shut down the project by any means necessary, indicating an uphill battle ahead for both sides of the project.

Dakota Access Pipeline Project

Priced at $3.7 billion, the Dakota Access Pipeline is a 1,172-mile-long underground oil pipeline project designed to transport Bakken shale oil. The pipeline is poised to transport 470,000 barrels of crude oil a day across four states, from North Dakota through South Dakota and Iowa and into Illinois. According to those in favor of the project, it is supposed to be a more cost-effective method of transporting oil than doing so by truck or train; almost 70 percent of Bakken oil is transported by train. Proponents also contend that the pipeline will help the U.S. gain energy independence.

The pipeline is extremely controversial due to its potential impact on the environment. Numerous tribes have expressed opposition to the project including the Meskwaki, Standing Rock Sioux, and Cheyenne River Sioux tribes. Initially, the pipeline route was intended to cross the Missouri River just north of Bismarck, North Dakota. It was later rerouted closer to tribal lands, a decision criticized by many as environmental racism.

According to the chairman of the Standing Rock Sioux tribe, the pipeline was rerouted closer to tribal lands when other North Dakota residents objected to the proximity of an oil pipeline to their communities and water sources. The portion of the Missouri River, where the pipeline will cross when completed, is the Standing Rock tribe’s primary source of drinking water. To date, most of the pipeline has already been built, but the section nearest to the Standing Rock Sioux tribe is still unfinished.

Treaty of Traverse des Sioux and Treaty of Fort Laramie

Opponents have argued that the pipeline would be in direct violation of the Sioux’s national sovereignty, as delegated in the signings of two treaties–the 1851 Treaty of Traverse des Sioux and the 1868 Treaty of Fort Laramie.

In 1851, the U.S. government and the Sioux in Minnesota signed the Treaty of Traverse des Sioux, which ceded large portions of territory to the federal government. In exchange for annuities in the form of cash and goods, the Sioux agreed under the treaty to move to land along the Minnesota River. White settlers were interested in obtaining control of the land for agriculture and also wanted the Sioux to convert from their nomadic lifestyle to European-American settled farming. However, violations of the treaty in the form of inadequate payments from the U.S., food shortages, and subsequent famines lead to a breaking point in the form of the Dakota War of 1862.

Another influential agreement was the Treaty of Fort Laramie, known as the Sioux Treaty of 1868, between the U.S. and multiple bands of the Lakota people. Signed on April 29, 1868, it guaranteed Lakota ownership of the Black Hills and hunting rights in South Dakota, Wyoming, and Montana. While the land that the Dakota Access pipeline would cross is technically just north of the Standing Rock Sioux reservation, the tribe argues that the land was taken illegally from them via the Sioux Treaty of 1868.

The affected tribes in Standing Rock contend that these treaties are legally-binding and have been ratified by the U.S. Senate; therefore, the oil companies and federal government have failed to recognize and respect the Sioux’s sovereign rights.

Easements and Eminent Domain

While there are many people who support the project, citing job creation as a positive byproduct of pipeline completion, others disapprove of  how the project was implemented. Many Native American landowners have had their land taken away from them against their will to clear a route for the pipeline using eminent domain. Eminent domain is the governmental power to take private property for public use and is the most common way to grant legal right of way easement. An easement is an encumbrance on private property; while landowners still retain ownership of their property, they lose the ability to freely use the portion of the property with the easement on it. U.S. law requires that landowners receive just compensation for the use of their land.

“Standing Rock 4” Courtesy of unitedchurchofchrist : License (CC BY-SA 2.0)

Other Controversies

The Standing Rock Sioux tribe has vehemently opposed the project, arguing that it violates the Treaty of Traverses des Sioux and the Treaty of Fort Laramie, as noted previously. The tribe and a number of its supporters contend that the project will contaminate drinking water, as well as damage sacred burial sites, dubbing the pipeline the “Black Snake.”  The U.S. Army Corps of Engineers, which has jurisdiction over a small portion of the pipeline, suspended the project last year, after months of intense protests and controversies.

At the protest’s peak, roughly 10,000 people had joined the campsites and more than 200 Native American tribes pledged their support. In 2016, it was the largest congregation of indigenous people in the U.S. in decades, maybe even centuries. U.S. military veterans, several high-profile actors, politicians, artists, filmmakers, and other activists all lent their support.

“Standing Rock 5” Courtesy of unitedchurchofchrist : License: (CC BY-SA 2.0)

The protests surrounding the Dakota Access Pipeline have not always been peaceful. According to reports, protesters have supposedly started fires, attempted to block roads, and have thrown petrol bombs at police. Police have also been accused of instigating violence and utilizing excessive force. Protesters have been attacked with pepper spray, freezing water, sound cannons, bean bag rounds, and rubber bullets. Police have also arrested hundreds of protestors on charges of criminal trespassing, rioting, and other felonies. At one point, the United Nations spoke out regarding the use of excessive force at the protest site.

Future of the Pipeline Project

In February 2017, the Trump Administration granted the final easement for that remaining section of the project. The Obama Administration, through the U.S. Army Corps of Engineers, had put the project on hold pending an environmental impact statement. Shortly after taking office, President Trump signed an executive memorandum on January 24, 2017, mandating that the pipeline project proceed. If all goes according to plan, that last 1.5 mile stretch of the pipeline will be completed in less than 90 days.

This hasn’t deterred activists and water protectors from fighting against its completion. Several marches in major cities, including a large-scale “Native Nations” march in Washington D.C., are currently in the works. Seattle’s city council also voted to divest more than $3 billion from Wells Fargo, citing the bank’s role as a major lender to the Dakota Access Pipeline as one of its reasons. The city of Davis, California soon followed suit, committing to withdraw its $124 million from the bank by the end of 2017. Wells Fargo has maintained that it is legally obligated to its contract with the pipeline.

Moreover, a legal challenge against the pipeline between the Standing Rock and Cheyenne River Sioux tribes and the federal government has been ongoing since 2016. The lawsuit contends that the Dakota Access Pipeline is an unlawful encroachment on the tribe’s heritage; it argues that the pipeline “might damage or destroy sites of great cultural and historical significance.” The National Historic Preservation Act, Clean Water Act, and Rivers and Harbors Act are the key laws at the crux of Standing Rock’s argument.

The tribe has stated on its website that if all legal actions and protest marches fail, resulting in construction of the pipeline, it will seek to “shut the pipeline operations down.” How that will exactly occur is still uncertain. One thing is abundantly clear: the Standing Rock Sioux tribe and its many allies have no intention of standing down against the Dakota Access Pipeline.

Conclusion

Despite clear opposition and legitimate concerns regarding the Dakota Access Pipeline, the project is scheduled to move forward and be completed in a few months. The project will certainly bring more jobs to the area and transport oil; however, it is absolutely imperative that these water sources and sacred tribal lands are not tarnished by the project. Moreover, it is critically important that protests over its construction remain peaceful, leaving violence and human rights violations behind.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post The “Black Snake”: Unpacking the Dakota Access Pipeline appeared first on Law Street.

Public lands dot significant portions of America’s landscape from coast to coast. Managed by a variety of agencies, these lands and waters are home to diverse ecosystems and prime settings for recreational activities. With an immense amount of annual foot traffic and billions of dollars of revenue generated, public lands play a substantial role in American lives.

For decades, there have been debates over whether or not these lands should be turned over to the states or private organizations. Now changes could become a reality, as Capitol Hill is filled with lawmakers who support transferring millions of acres of public lands away from the federal government. But the consequences of such a transfer may have more negative impacts than positive, and many citizens feel that access to public land is an American birthright.

Background of Federal Lands and Agencies

The majority of public lands in the U.S. are held in trust by the federal government and managed by a variety of agencies. According to a 2014 report, the federal government owns roughly 640 million acres, which is about 28 percent of all the land in the United States. Four agencies own over 600 million acres of that land: the Forest Service, Bureau of Land Management (BLM), Fish and Wildlife Service, and the National Park Service. The lands are utilized primarily for recreation, preservation, and natural resource development.

U.S. Forest Service

President Benjamin Harrison established the National Forest system with 13 million acres and 15 forest reserves through the Forest Reserve Act of 1891, which gave the president power to set aside and reserve public lands. Conserving land for the people was a national priority, as was obtaining acknowledgement that forested areas needed special protection from the exploitation of natural resources. With 155 forests and 20 grasslands currently totaling over 191 million acres, these lands overseen by the United States Forest Service reach diverse populations and are extremely popular destinations for a variety of outdoor and recreational activities. According to a National Visitor Use Monitoring (NVUM) report, there were over 180 million visits made to National Forest sites in 2015.

“US Federal Land Agencies” Courtesy of National Atlas of the United States: License Public Domain

The Bureau of Land Management

The BLM is responsible for managing 247.3 million acres of public land–one-eighth of all the landmasses in the country. From grazing permits to mining and coal leases, the agency administers 205,498 miles of fishable streams, 2.2 million acres of lakes and reservoirs, and 4,500 miles of National Scenic, Historic, and Recreation Trails in addition to multiple-use trails for recreation purposes. The BLM collects a significant amount of revenue from public lands. In 2016, the agency made $2 billion in royalty revenue from federal leases; the Outdoor Industry Association also estimates that $40 billion in federal tax revenue comes from the recreation industry on public lands.

The Western Concentration

Other agencies such as the United States Fish and Wildlife Service, National Oceanic and Atmospheric Administration, and the United States Army Corps of Engineers participate in federal land management and administration. Most of the federal land ownership is concentrated in the western part of the country, contributing to greater controversy over ownership and use of federal lands in the area.

Public Trust Doctrine

The public trust doctrine is a long-standing principle that the government holds some lands in trust for public use, regardless of any private property ownership. Generally, this applies to land, water, and natural resources, such as beaches and navigable rivers. While the doctrine itself varies heavily from state to state, the public may fully enjoy any public trust lands, waters, and natural resources for a “wide variety of recognized public uses.” These rights became established in the U.S. after Illinois Central Railroad v. Illinois, an 1892 case that held that the government cannot alienate a public right to lands under navigable waters.

“Fall Color at Natural Arch – Daniel Boone National Forest” Courtesy of US Forest Service -Southeast : License (CC BY-SA 2.0)

Additionally, the public trust doctrine puts a limit on private rights. A landowner may not alter their property in such a way that it would interfere with use of public land. Moreover, the doctrine specifically protects the land from misuse by the state. A state may not convey public trust lands if the conveyance could substantially impair public use of lands or waters. Thus, any move to privatize public lands may be in direct violation of the public trust doctrine, particularly if the sale would then impair the public’s use of such land or water.

Plans to Privatize Public Lands

The collective ownership of these lands, however, could possibly change if lawmakers continue down their current course. House Bill 3650, introduced to the House of Representatives in September 2015, directs the Department of Agriculture to “convey to a state up to 2 million acres of eligible portions of the National Forest System.” These portions of conveyed land will be administered and managed “primarily for timber production.” On June 15, 2016, the Natural Resources Committee voted to adopt H.R. 3650; it is currently awaiting the next stage in the lawmaking process.

Representative Jason Chaffetz of Utah introduced a piece of legislation at the end of January 2017 that was later dubbed the Disposal of Excess Federal Lands Act. In a press release for H.R. 621, Chaffetz claimed that 3.3 million acres of land maintained by the BLM “served no purpose for taxpayers.” If the bill passed, ten states were poised to lose federal land. However, he withdrew the legislation in February 2017 after facing harsh criticism from his constituents.

“Gunnison National Forest Colorado” Courtesy of David : License (CC BY 2.0)

Despite the withdrawal of H.R. 621, Republican lawmakers still laid out a plan to give away roughly 640 million acres of land in early 2017. Lawmakers overwrote the value of federal lands by changing a single line of rules for the House of Representatives, making it easy to dispose of federal property–even if it ends up losing money for the government and there’s no compensation for American citizens. In essence, the change states that transferring public land to “state, local government or tribal entity shall not be considered as providing new budget authority, decreasing revenues, increasing mandatory spending or increasing outlays.” The land would be given to the states, and then could possibly be sold to private owners.

As a result, places like the Grand Canyon National Park and Minnesota’s Boundary Waters Canoe Area Wilderness, which are rich in uranium and copper respectively, may be up for grabs first. The oil-rich lands of the Arctic National Wildlife Refuge could also be vulnerable for sale. According to Alan Rowsome, the senior director of government relations for The Wilderness Society, it seems very likely that Alaska’s national lands will be open for drilling under a Republican-controlled House. Many western states are already taking the necessary actions to prepare for public land transfers.

Criticism of Privatization

First things first: critics fear that local governments with small budgets will not be able to manage the land once it is transferred to them by the federal government. In the summer of 2016, the Forest Service spent $240 million a week to fight forest fires, and the Department of Interior has estimated that the cost of deferred maintenance is around $11 billion. Over time, whenever federal land has been given to states, it has become less accessible. Between 2000 and 2009, Idaho sold off almost 100,000 acres of public land; in Colorado, citizens may only use 20 percent of state trust land for hunting and fishing.

Private ownership of public tracts of land has profound consequences, as it will probably affect land managed and regulated by conservation programs or private entities, likely reducing public access. Public access to National Forests contributes greatly to state economies; a report completed by the Outdoor Industry Association found that the outdoor industry directly impacts over six million jobs and contributes to $646 billion in outdoor recreation spending. The Outdoor Alliance, a nonprofit coalition of groups that support outdoor activities, has argued that any action to transfer lands to private hands is a “public land heist.”

A 2016 Harvard Kennedy School study, found that 95 percent of the American public believes in the importance of protecting national parks and 80 percent would be willing to pay higher taxes in order to do so. Such an overwhelming response certainly indicates that protecting public places is incredibly important to Americans.

Conclusion

While there is still time before these resolutions become law, plans to privatize our forests have been set in motion on numerous occasions. If Americans’ access is restricted and these lands are exploited for a profit, the primary purpose of establishing public lands for citizen use will disappear. In the famous words of President Teddy Roosevelt, champion of conservation and public lands, “I believe that the natural resources must be used for the benefit of all our people, and not monopolized for the benefit of the few . . . Conservation is a great moral issue, for it involves the patriotic duty of insuring the safety and continuance of the nation.”

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post This Land is Your Land: Should Public Lands Be Privatized? appeared first on Law Street.

The estate tax, more commonly known as the “death tax,” is one of the most hated taxes in the United States. Long considered to be a contentious issue in the tax policy field, Americans are largely not comfortable with the concept of taxing inheritances. However, estate taxes align perfectly with America’s historical idea of fairness and not encouraging wealth to accumulate long after death. Despite citizens’ contempt for taxes at death, few will ever actually be subject to the estate tax. Read on to learn more about the estate tax, and what happens to our money after we die.

Evolution and History of the Estate Tax

The Internal Revenue Service defines the estate tax as “a tax on your right to transfer property at your death.” Taxation at death can be traced back as far as ancient Egypt, around 700 B.C. In feudal Europe, it was also quite common to impose taxes on the death of a family member, normally amounting to a family’s annual property rent.

Early American government abolished laws that encouraged the accumulation of wealth over many generations. In 1777, Thomas Jefferson cited Adam Smith, a free market capitalist, when stating that “the earth and the fulness of it belongs to every generation, and the preceding one can have no right to bind it up from posterity.” The concept that people should control their estates after death was considered “manifestly absurd” by both Jefferson and Smith.

The modern estate tax evolved through the Stamp Tax of 1797 (taxes levied on required federal stamps on wills, inventories, and letters of administration), the Revenue Act of 1862 (the addition of a legacy or inheritance tax along with the stamp tax on the probate of wills or letters of administration), and the War Revenue Act of 1898 (a federal legacy tax proposed to raise revenue for the Spanish-American War, levied only on personal property).

The Estate Tax 1900 to Present

The Revenue Act of 1916 specifically created a tax on the transfer of wealth to beneficiaries. This levied a tax directly on the estate itself, rather than an inheritance tax. Over the next few decades, laws surrounding the estate and gift tax framework shifted immensely. A gift tax was repealed in 1926, then reintroduced in 1932; tax bases expanded; life insurance rules were modified to exclude insurance the decedent never owned; and marital deductions frequently changed. Significant tax law changes came around with the Tax Reform Act of 1976. This created a unified estate and gift tax framework; prior to this reform, it was far cheaper to give property away during life as gifts, as there was a higher tax rate applied at death. The generation-skipping transfer trust tax was also added to combat creative trust frameworks that paid money out to intervening beneficiaries, avoiding taxes altogether.

The Economic Growth and Tax Relief Reconciliation Act of 2001 allowed for a phasing-out of the estate tax, along with a lowering of annual top-rate estate taxes. It also lowered capital-gains taxes, in addition to lowering income taxes. Much of the resistance to the estate tax has come from powerful public relations campaigns and lobbying efforts. Many wealthy families have lobbied for years around an estate tax repeal and funded actions to make it a reality: including the Mars Chocolate family, the L.L. Bean family, and the Campbell’s Soup family.

The “Death Tax”

While citizens feel very strongly about the “death tax,” it only affects a small percentage of families each year. According to a 2016 Gallup poll, 54 percent of those polled supported a repeal of the estate tax. Under the current law, however, the 40 percent tax rate is applied only to estates worth more than $5.45 million for individuals and more than $10.9 million for married couples. If a decedent has an estate worth less than that, then it is automatically passed on to heirs completely tax-free. Additionally, individuals are able to give away $14,000 a year as a gift to an unlimited amount of people without incurring any tax.

So, an overwhelming majority of families in the U.S. are not subject to the estate tax. For example, in 2015, only 4,918 estates were subject to the tax, yielding $17 billion (less than 1 percent of federal revenue). From that number, 266 estates valued at $50 million or more brought in $7.4 billion in revenue. According to the Center on Budget and Policy Priorities (CBPP), 99.8 percent of estates are exempt from the estate tax. The CBPP also notes that $275 billion will be generated from 2017-2026 under the current estate tax law. While that is still less than 1 percent of federal revenue during that same period, it is more than the government will spend on the Food and Drug Administration, Centers for Disease Control and Prevention, and Environmental Protection Agency combined. Estate taxes clearly remain an integral source of revenue for the federal government.

Moreover, the interesting thing about many estates is that most will not ever actually be taxed. The CBPP estimates that 55 percent of the value of the estates worth more than $100 million are comprised of unrealized capital gains; those gains have not yet been taxed nor will they ever be taxed under current estate tax laws. Capital gains are only taxed when an owner of an asset “realizes” a gain; therefore, if an asset is held by an owner until death, increasing in value over the years, it will never actually be subject to income tax.

Generally, taxable estates pay less than one-sixth of their value in tax–roughly 16.6 percent, far below the top statutory rate. Additionally, the significant number of loopholes and generous deductions enable many estates to avoid taxes altogether. Hence, many families are able to pass on numerous assets to future generations tax-free due to advantageous laws.

Estate Tax Repeal

Republicans have long sought to repeal the death tax, and now thanks to President Trump, that dream may be realized. Abolishing it completely would save millionaires and billionaires in the U.S. roughly $20 billion a year in taxes. An action to repeal the estate tax would be beneficial only for the top 1 percent of families in the country, something that appears to be completely at odds with the working-class voters who helped to elect Trump. Under the current administration, passage of a bill to repeal the estate tax in the Republican-led House is practically certain; as for the Senate, a decade-long repeal is possible under a reconciliation which needs 50 senators. To repeal the estate tax permanently, 60 votes would be needed, which may be more difficult to garner.

“Donald Trump” Courtesy of Gage Skidmore : License: (CC BY-SA 2.0)

Opponents of the estate tax have contended that it hurts family farms and small businesses immensely. In reality, very few small businesses and farms owe any estate tax in a given year. In 2013, only roughly 20 small businesses and small farm estates were subject to the estate tax, and estimates show that those estates only owed about 4.9 percent of their value in taxes.

If repealed, President Trump’s estate alone would save about $564 million, based on his estimated net worth of $3 billion (although he has argued that his net worth is even higher). Trump’s team, which is comprised primarily of extremely wealthy individuals, would also benefit greatly from an estate tax repeal. However, a proposed plan to repeal the estate tax indicates a bit of compromise as well. Instead of capital gains being able to pass to heirs tax-free, those assets would be subject to a capital gains tax at death, with an exemption of the first $10 million in assets for family farms and small business owners. A tax on capital gains would only top out at 20 percent, while the estate tax is at 40 percent. Thus, repealing the estate tax and replacing it with a capital gains tax would be extremely beneficial for wealthy families. 

Conclusion

The estate tax is misunderstood by most Americans; despite all of the negative sentiments surrounding it, only a minuscule number of estates will be affected by it annually. In actuality, a repeal of the estate tax would only benefit a small number of incredibly wealthy families in the U.S., while simultaneously depriving the federal government of billions of dollars of revenue each year. When weighing the merits of the estate tax system, one should consider the benefits of allocating society’s resources and promoting equality over the potential consequences of binding the majority of assets and wealth into a small percentage of the American population.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post Death and Taxes: What is the Estate Tax? appeared first on Law Street.

While President Barack Obama’s time in office has now come to a close, his environmental legacy has the potential to last far beyond his eight years as president. The Obama Administration has worked tirelessly to protect and defend the environment, championing several initiatives. Some key accomplishments, however, include the establishment of more national monuments than any other president, signing the historic Paris Climate Agreement to reduce greenhouse gas emissions, banning drilling in parts of the Arctic and Atlantic Ocean, and unveiling the Clean Power Plan. Additionally, Obama raised fuel-efficiency standards, invested in green energy, and created the Federal Strategy to Promote the Health of Honey Bees and Other Pollinators. Whether these policies stand the test of time, however, may depend heavily on the actions of future administrations.

National Monuments

While Obama’s time in office was winding down, he was still designating sites as national monuments. On January 12, 2017, Obama named five new national monuments. That brought his total number during his presidency to 34—more than any other president. Moreover, in December 2016, he created two national monument sites in Utah and Nevada. The Bears Ears National Monument, which protects 1.35 million acres of land in southwest Utah and two geological formations, was particularly controversial; five Native nations had petitioned Obama to grant federal monument protections to the area.

“Bears Ears” Courtesy of Bureau of Land Management : License: (CC BY 2.0)

Over the course of his time in office, Obama utilized the Antiquities Act–a law signed by President Theodore Roosevelt in 1906–multiple times to create the monuments. The Act gives the President of the United States the authority to set aside land to protect important historic, cultural, and ecological sites without approval from Congress. In total, Obama protected more than 550 million acres. That is more than double the amount that Roosevelt, a well-known conservationist, conserved himself.

A large portion of the land Obama protected is covered by water. He created and expanded several large national marine monuments. One notable monument is the Pacific Remote Islands National Marine Monument, a large collection of coral reefs, underwater preserves, and tiny islands roughly 1,000 miles off the coast of Hawaii. Bush had originally established the monument in 2009 at 55.6 million acres; Obama then expanded it by 261.3 million acres in 2014. Obama also quadrupled the size of Hawaii’s Papahānaumokuākea Marine National Monument, which is home to more than 7,000 species of wildlife, many of which are endangered.

Ban on Arctic and Atlantic Drilling

In addition to the significant acreage of water Obama protected as national monuments, his administration also banned arctic drilling. Using the Outer Continental Shelf Lands Act, Obama withdrew hundreds of millions of acres of federally-owned land in the Arctic and Atlantic Ocean from new offshore and gas drilling in December 2016. The Act allowed for Obama to act unilaterally, but no president has ever utilized the law to permanently protect land. In particular, large portions of the Chukchi Sea and Beaufort Sea in the Arctic and canyons in the Atlantic from Massachusetts to Virginia are now off-limits to oil exploration.

“Sea Ice in the Chukchi Sea” Courtesy of NASA Goddard Space Flight Center : License: (CC BY 2.0)

The Atlantic Ocean already had a five-year moratorium in place, and the protection of the canyons means that most of the eastern seaboard will not be drilled for oil. The seas in the Arctic are a habitat for several endangered species, including species that are candidates for an endangered species listing, and the canyons protected are largely recognized as biodiversity hotspots. If the ban is upheld by the courts, about 98 percent of the waters in the Arctic would be protected from oil exploration and drilling. In a presidential memorandum, Obama stated that these areas are extremely vulnerable to oil spills and have irreplaceable value for marine animals, wildlife, wildlife habitat, and scientific research–making the Arctic Waters a prime area for protection

Paris Climate Agreement

The Paris Climate Agreement was the first of its kind–a global consensus to combat the effects of climate change. Its central aim is to strengthen the response to threats of climate change and keep the global temperature rise below 2 degrees Celsius. The agreement also aims to cut global greenhouse gas emissions by limiting the burning of fossil fuels and assist in preventing further floods, droughts, catastrophic storms, and rising sea levels.

In a rare moment of consensus, both the U.S. and China ratified the agreement, formally committing the world’s two biggest economies to curb climate change. The terms allow countries to determine independently which strategies will be most successful in attaining climate goals. While some of the aspects are binding and some are not, Obama’s ratification of the deal demonstrated a bold move by his administration to make protecting the planet a priority in years to come.

Clean Power Plan

President Obama’s most historic environmental initiative, perhaps, is the Clean Power Plan, which is designed to aggressively shrink America’s carbon footprint. The plan outlined the first national standards to specifically address pollution from power plants. In particular, the plan cuts significant amounts of carbon pollution and other pollutants from power plants that are responsible for soot and smog that have an adverse effect on human health. The plan is long-term, allowing companies to remain in business while making the changes needed to comply with the new standards.

The Supreme Court issued a “stay” in February 2016,  temporarily halting the plan from moving forward. However, it is set to be fully in place by 2030, with carbon pollution 32 percent below 2005 levels, sulfur dioxide pollution 90 percent lower, and nitrogen oxides 72 percent lower. This reduction in greenhouse gases is specifically aimed at combating the dangerous effects of such pollution on the climate. Additionally, the entire plan itself is expected to contribute a variety of positive economic effects–climate benefits of roughly $20 billion, health benefits in the $14-$34 billion range, and total net benefits of approximately $26-$45 billion.

“Power plant” Courtesy of Spiros Vathis : License: (CC BY-ND 2.0)

What’s Next?

Despite the great measures Obama undertook to protect the environment, it is quite possible that some of his environmental policies will be overturned by a new administration. The ban on drilling may or may not be able to be overturned by President Trump, but a Republican-controlled Congress could move to rescind the withdrawal of federal lands from oil and gas exploration. However, such a move might not be successful, given a close reading of the Outer Continental Shelf Lands Act.

National monuments have never been removed by a subsequent president, but President Trump has reportedly stated that he is open to the idea of doing so. As for the Paris Climate Agreement, Trump has made it clear that he wants to withdraw America’s participation in the historic deal. Arguments that the agreement will be disastrous for the economy and American industry are at the forefront of opponents’ minds. While Trump considers withdrawing the U.S. from the agreement, China, India, Germany, the EU, and the UK have all reaffirmed their commitments to curb emissions. China’s President, Xi Jinping, even stated that removing the U.S. from the agreement will endanger future generations. Furthermore, if other countries continue to invest heavily in clean energy, then money, jobs, and technology are sure to stream into those industries, perhaps leaving the U.S. behind.

The fate of the Clean Power Plan also hangs in the balance under the new administration. Many opposed to the plan have already urged President Trump to sign an executive order that rescinds the rule and tell the Environmental Protection Agency (EPA) not to enforce it. However, attorneys general from a variety of states have noted that “history and legal precedent strongly suggest that such an action would not stand up in court.” The plan is also vulnerable to the Congressional Review Act, which would allow Congress to nullify the regulations. For now, the Clean Power Plan remains in limbo.

Overall, most of Obama’s environmental legacy will be decided by the courts, not by a particular administration. With more than 100 judicial vacancies across the country as Trump takes office, along with a vacant Supreme Court seat, the courtroom is going to be the arena in which environmental policies could be dismantled. In particular circuits with more than one vacant seat, specific areas of environmental regulation may be rolled back immensely; for example, the Second Circuit has become a critical arena for determining water regulation under the Clean Water Act and the Ninth Circuit has a profound impact on endangered specifies. Environmental groups are already preparing to take any anti-climate policies or actions to court, along with attorneys general from multiple states.

Conclusion

Obama’s presidency was clearly focused on environmental protection and combating catastrophic effects of climate change in the coming years. As commander-in-chief, Obama did an extensive amount of work to ensure the environment is viable and sustainable far into the future. Whether his efforts will be unraveled in the new Trump Administration and Republican-controlled legislative branch, however, is yet to be seen. Overall, Obama’s actions certainly elevated the environment and climate change to a much higher level of importance, and his environmental legacy may have him remembered as one of the top environmental presidents in history.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post A Look Back at the Obama Administration’s Environmental Legacy appeared first on Law Street.

Capital punishment in the United States has long faced public scrutiny. The death penalty is a topic of debate among Americans largely due to concerns about its efficacy in deterring crime, as well as growing rates of botched executions. In 2016, the U.S. saw a record decline in death penalty use and public support. A number of states postponed scheduled executions due to drug shortages and botched executions. While capital punishment remains legal in 32 states, this number could steadily decrease based on the current political climate.

Current Death Penalty Trends

The Death Penalty Information Center (DPIC) reported that 30 people were sentenced to death in its 2016 Year End Report–the lowest number of death sentences since states began to re-enact death penalty statutes in 1973. It found that executions also declined more than 25 percent, with only 20 executions carried out in 2016 by just five states.  Public opinion polls show support for the death penalty at a four-decade low. At just 49 percent, support fell below 50 percent for the first time in 45 years, according to a study by the Pew Research Center. This is a seven point drop from the previous year.

The DPIC concluded that the number of people waiting on death row decreased in 2016, as prisoners either passed away in custody, or obtained relief from their convictions. There was also a decline in the number of counties in death penalty states pursuing capital punishment. This past year three states–California, Nebraska, and Oklahoma–overwhelmingly voted to reject propositions that would have eliminated the death penalty. In California there hasn’t been an execution since 2006, and yet residents still seem to be in favor of its use, when deemed appropriate. Geography also played a roll in American death penalty trends. Eighty percent of all executions in 2016 were carried out by only two states–Texas and Georgia.

Mental Health Issues

Historically, executed prisoners tend to be those who are the most vulnerable, with the poorest legal representation. The DPIC’s review found that at least 60 percent of executed prisoners exhibited a combination of mental health issues including: signs of mental illness, brain impairment, and low intellectual functioning.

In Texas, a mentally ill prisoner was executed who exhibited signs of mental illness since infancy and was diagnosed with a variety of mental afflictions by the time he was 18. Georgia also executed an intellectually disabled prisoner, who was black, even though he had an openly racist juror, a trial lawyer who slept through portions of the trial, and significant evidence of an intellectual disability presented in post-conviction proceedings. Additionally, six of the prisoners who were executed in 2016 were 21 or younger at the time of their offenses.

A case argued before the Supreme Court in late 2016 attempted to dispute the constitutionality of executing prisoners with intellectual disabilities. Moore v. Texas questions the “standards that may be used to determine whether a defendant convicted of murder is mentally deficient.” Lawyers for the defendant argued that Texas utilizes outdated methods of determining mental capacity, rather than the standards mandated by the Supreme Court. The defendant, Bobby J. Moore, has an average IQ of 70 based on multiple tests. Texas argued that there is no national standard for determining mental capacity; the ruling from the Supreme Court, while still currently unknown, will certainly have a profound effect on other states’ death penalty procedures.

Botched Executions and Experimental Drugs

The overall decline in the use of the death penalty may also be attributed to recent botched executions. Lethal injection, the most utilized form of execution, has a botched execution rate of 7.12 percent. All manufacturers of FDA-approved drugs that could potentially be used for lethal injections have enforced a strict ban on selling their drugs for that purpose; companies are no longer keen on associating any of their products with capital punishment proceedings.

Problematic lethal injection procedures have been of great concern for the past few years and have occurred all over the country. In Ohio, the prisons’ agency is attempting to obtain a drug that could reverse the lethal injection process if needed. If executioners were not confident the first three drugs rendered a prisoner unconscious, they would be able to use the drug to reverse the effects. This request comes after executions have been on hold in the state since January 2014, when a prisoner gasped and snorted during the 26 minutes it took him to die. Arizona’s last execution was also in 2014, when a prisoner took two hours to die after receiving an injection of the drug midazolam.

As recently as December 2016, a man executed in Alabama struggled for air, coughed, heaved, and clenched his left fist during the 13 minutes of his execution. Two consciousness checks were performed during the execution. The inmate moved his arm both times after the tests. The first drug used in the three-drug cocktail was midazolam. The Supreme Court ruled in a 5-4 decision in 2015 that the use of midazolam is constitutional, in spite of reports that the drug does not reliably render an inmate unconscious.

Despite its death row population remaining in limbo after the Supreme Court struck down the state’s capital sentencing system in January 2016, Florida is poised to start utilizing a new experimental lethal injection drug. Such a move is likely to cause more litigation in the coming future, as anti-death penalty advocates are troubled by the use of experimental procedures in lethal injections.

Efficacy in Deterring Crime and Racial Bias

Though capital punishment is employed to deter violent crime, there is little evidence that it actually does so. In a 2008 Death Penalty Information Survey, 88 percent of polled criminologists said they do not believe that capital punishment is an effective deterrent for crime. As recently as 2015, non-death penalty states had a murder rate of 4.13, while death penalty states had a murder rate of  5.15—a 25 percent difference. In every year since 1990, non-death penalty states had a lower murder rate than death penalty states. And in a 2008 poll of 500 police chiefs, the death penalty ranked last in their priorities for reducing crime.

Moreover, the racial bias in the criminal justice system is astounding. Over half of the current death row population since 1976 is non-white. Interracial murders also disproportionately target blacks. Since 1976, 283 black defendants have been executed for the murder of a white victim; this is in stark contrast to the 20 white defendants executed for murdering a black victim. A 2014 study performed by Professor Katherine Beckett of the University of Washington, found that jurors in Washington from 1981-2014 were four and a half times more likely to sentence a black defendant to death than a non-black defendant.

Conclusion

The decline in the number of prisoners executed in 2016, as well as the decrease in the number of people sentenced to death, seem to signify a move away from capital punishment in the U.S. Such a drop in executions may be attributed to states putting their executions on hold after extremely troublesome lethal injection proceedings over the past few years, rather than a general shift toward other sentencing alternatives. Regardless of waning numbers, citizens voted in large margins to retain the death penalty in multiple states this year, indicating that support for the death penalty in particular cases is still acceptable to many. Whether any state protocols and procedures will change, however, depends heavily on Supreme Court decisions in the future.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post Is the U.S. Slowly Phasing Out Capital Punishment? appeared first on Law Street.

Medical information is usually viewed as a private affair. But due to the proliferation of technologically advanced devices–heart monitors, X-ray devices, and even fitness trackers–the ability to gain access to a person’s sensitive health information may be easier than most realize. Unsecured devices could lead to disastrous consequences, as any alteration to a patient’s device could be a life or death situation. Medical device hacking may be the largest cybersecurity threat faced by Americans in the coming years. This gigantic security concern is quietly lurking in citizens’ insulin pumps and pacemakers.

Despite having federal and state guidelines to protect and secure individually identifiable health information, accessing a person’s most detailed medical information may be as simple as pressing a few buttons. New Food and Drug Administration (FDA) guidelines issued at the end of 2016 may be able to combat easy access to medical devices, but only with cooperation from device manufacturers. There are also no current plans for enforcement of these guidelines by the FDA, as they are non-binding recommendations. Read on to learn about the security concerns presented by medical devices.

What is a Medical Device?

A medical device, as defined by the FDA, is “an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including a component part, or accessory” that is used “in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease.” Such devices are regulated by the FDA and may be utilized for animals as well as humans. Tongue depressors, bedpans, x-ray machines, and complex programmable pacemakers with microchip technology all fall under the broad definition of a medical device. Moreover, surgical lasers, wheelchairs, and even sutures and orthopedic pins are classified as medical devices. If the primary intended use of a product is achieved via a chemical reaction or metabolized by the body, then it will usually fall under the definition of a “drug.” The U.S. is the global leader in the medical device market, with a total market size of roughly $148 billion in 2016. The Department of Commerce determined that U.S. exports of medical devices in specific categories exceeded $44 billion in 2015. Research and development in this sector are also more than twice the average for all U.S. manufacturers.

Medical Privacy Laws

A person’s medical history is a deeply personal collection of information. Highly sensitive material ranging from mental health treatment and sexual history to genetic disorders and diseases can be contained in an individual’s medical file. Numerous laws have been passed in the U.S. on federal and state levels to ensure that Americans’ health information remains confidential and secure. The most comprehensive law ever passed in the field of medical privacy is the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The act required the Secretary of the Department of Health and Human Services to develop regulations to protect the privacy and security of certain medical information. Under HIPAA, the government established national standards to protect individuals’ medical records and give patients control over who can access personal health information. Essentially, without direct patient authorization, specific entities are limited on the uses and disclosures of individuals’ medical records.

“Paper files of medical records” Courtesy of Newtown grafitti : License: (CC BY 2.0)

In 2000, the Standards for Privacy of Individually Identifiable Health Information (the Privacy Rule) came into effect; the guidance comprehensively explains answers to questions about the privacy requirements of HIPAA. Generally, the Privacy Rule permits that incidental uses and disclosures are permissible only if they are a by-product of a reasonable or permissible disclosure. The rule requires covered entities to take reasonable steps to limit the use or disclosure of protected health information. It applies to health plans, health care clearing houses, and any health care provider who transmits health information in electronic form. Individually identifiable health information is information that relates to: an individual’s past, present, or future physical or mental health or condition, the provision of health care to the individual, or the past, present, or future payment for health care for the individual.

The Security Standards for the Protection of Electronic Protected Health Information (the Security Rule) also established national security standards for certain health information held or transferred in electronic form. The Security Rule particularly addressed technical and non-technical safeguards that covered entities must utilize to protect individuals’ electronic protected health information (e-PHI). Entities covered by the Security Rule must ensure the confidentiality and integrity of all e-PHI being received or transmitted, as well as protect against any reasonably anticipated threats to the security or integrity of such information. Under the intricacies of HIPAA’s Privacy Rule and Security Rule, the U.S. government has clearly gone to great lengths to protect citizens’ medical records from improper use or disclosure by entities without direct patient authorization. Certain medical devices utilized today may contain information regarding a person’s medical condition that is as detailed as their medical records–what ailments a person is being treated for, or what dosage of medicine a person takes daily. Therefore, protecting these devices from unwanted intrusion and hacking should be of the utmost importance to ensure patient health and privacy.

Medical Device Security and Privacy Concerns

The FDA has been warning hospitals and health providers for years that medical devices and hospitals are vulnerable to hackers. In early 2016, the Hollywood Presbyterian Medical Center in California fell victim to a ransomware attack, which infects a computer and then encrypts files until someone pays to have it unlocked. The attackers in California held patients’ medical data hostage until the ransom was paid, roughly $17,000 in bitcoin. Ransomware also hit other hospitals around the country.

One of the largest consumer concerns regarding medical devices is that individuals can do little to protect their devices themselves. It’s up to the manufacturers of a device’s hardware and software to employ proper security measures. Another issue plaguing medical devices is that most of the laws protecting medical privacy fall under the Health and Human Services’ umbrella; however, regulating medical devices falls in part under FDA jurisdiction. The disconnect explains how the interactions between medical device regulations and privacy laws lead to administrative issues. In a cybersecurity briefing, the U.S. government warned that pacemakers were easy targets for hackers.

Furthermore, in October 2016, Johnson & Johnson notified 114,000 diabetic patients that a hacker could potentially exploit one of its insulin pumps. The pump could be attacked by either disabling the device or altering the dosage of insulin. Some medical infusion pumps in hospitals are even connected wirelessly because it makes monitoring dosages easier. Patients in the hospital could potentially have their pumps controlled remotely by a hacker, which is relatively simple to do.

While the threat to medical devices has been common knowledge for the past few years, few people have attempted to rectify the glaring holes in the current system. Security researchers have managed to remotely control medical devices including pacemakers, insulin pumps, and defibrillators. Thus, it is quite possible that hackers may start setting their sights on specific medical devices, not just entire hospital systems. U.S. officials began investigating flaws in pacemakers in August 2016, when a batch ran out of battery three months earlier than anticipated. While that particular batch simply had a rare defect that caused them to fail, the months of investigation culminated in the FDA releasing 30 pages of guidance regarding medical devices’ security flaws.

New FDA Guidelines

The FDA first issued a guidance in October 2014 that contained recommendations for manufacturers to build medical devices with cybersecurity protections. These guidelines were expanded in December 2016; however, the recommendations to manufacturers were non-binding, making the document not legally enforceable and not a particularly strong stance on securing future medical devices. As part of the new recommendations issued, the FDA encourages manufacturers to swap information with each other and consistently deploy software patches and updates to fix any security vulnerabilities. Moreover, the agency has asked manufacturers to adhere to a checklist created by the National Institute of Standards and Technology. Early product development that focuses on protecting medical devices from hackers is of the utmost importance. The FDA also suggested that manufacturers join the Information Sharing and Analysis Organization to share details about detected security risks and attacks when necessary.

Conclusion

Researchers saw a rise in the occurrences of cyberattacks on a global scale in 2016. Technological advances in medical devices certainly encourage more effective health treatment, but the increasing reliance on vulnerable software potentially puts the health of citizens at risk. Thus, implementing a structured and comprehensive plan to manage cybersecurity risks is critical. While the new FDA guidelines are a respectable start to ensuring medical devices are free from cybersecurity threats, making the recommendations mandatory as opposed to voluntary may be the only way to keep individuals’ medical information safe from prying eyes. Many contend that while the recommendations could be more stringent, this is just the first step in a long road to addressing cybersecurity in the medical field. For now, the onus remains on the manufacturers to patch detected vulnerabilities in their devices and software and develop devices safe for consumers.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

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The debate regarding taxes always seems to end in a convoluted discussion. Who should pay taxes? How much should one pay in taxes? What type of tax plan is fair to all citizens? The list of questions for how to best regulate and reform taxes goes on and on.

While on the campaign trail, President-elect Donald Trump touted his tax plan as the answer to working-class families’ financial struggles. As Trump prepares to take office, many people wonder how his administration will implement tax reform. How will Trump’s proposed alterations to America’s highly complex tax code actually function? And will it benefit citizens other than the top one percent?

The History of Taxes

It is no secret that the U.S. tax code is an extremely long and complicated document. Many Americans feel that the code has become increasingly difficult to decipher, leading many to hire a professional or use tax-preparation software to do their taxes for them each year. Interestingly, for most of early American history, there were no taxes–at least not in the form of direct taxation, like the federal income tax. Thus, the government began to collect tariffs and duties on specific items in order to generate revenue for public programs.

The Taxing and Spending Clause of the U.S. Constitution specifies Congress’ power to impose taxes and duties. There was, however, no permanent federal income tax until the early 1900s. During the Civil War, Congress passed the Revenue Act of 1861 to help pay war expenses, and in 1894 it enacted a flat rate federal income tax, but both taxes were eventually repealed or ruled unconstitutional. The 16th Amendment to the U.S. Constitution, which was passed in 1909 and ratified in 1913, finally gave Congress the ability to levy an official federal income tax.

The U.S. government currently levies taxes in a variety of ways including: income taxes, sales taxes, excise taxes, payroll taxes, property taxes, estate taxes, and gift taxes, to name a few. Each state has the authority to employ taxes differently; in some states, like Florida, there is no personal income tax.

Current Federal Income Tax Structure

Notably, the U.S. government relies mainly on income tax for its revenue to fund public programs and services. America utilizes a marginal tax rate structure for federal income tax, meaning that the tax rate for an individual increases as income increases. Marginal tax rates aim to tax individuals fairly based on upon annual earnings. The marginal tax rate breaks down income into seven different tax brackets: 10 percent, 15 percent, 25 percent, 33 percent, 35 percent, and 39.6 percent.

“Tax Time” Courtesy of Manchester City Library : License: (CC BY-SA 2.0)

Those with the lowest income are placed in the lowest bracket, while those with the highest income are placed in the highest bracket. Income taxes are progressive, meaning only a specific amount of income is taxed at each rate. Someone who makes $100,000 a year will have some of the income taxed at 10 percent, some taxed at 15 percent, and so forth.

Other taxes, such as sales and excise taxes, are considered regressive rather than progressive. Goods are taxed at the same percentage, regardless of income. So, those with lower incomes end up paying a larger percentage of their income via sales and excise taxes.

Tax Reform

While the U.S. economy is based on a free enterprise system, it does not necessarily produce all the services and revenue needed by society as a whole. Thus, taxes give the necessary revenue for government agencies to provide specific programs and services to the general population. Since everyone benefits from these services, levying taxes on citizens is thought of as the most practical way to pay for them. Education, transportation, retirement, disability, and veteran’s benefits are just a few examples of the litany of programs that operate because of taxes.

The impetus for tax reform occurred in the 1950s. Taxes were increasingly seen as a tool for increasing revenue and stabilizing the economy. In 1964, individuals in the highest bracket were being taxed at a staggering rate of 91 percent, so lawmakers started creating various exemptions to make the rates more palatable to citizens. The creation of Social Security and Medicare programs required additional tax revenues, and slowly increased the payroll tax rate.

1980s Tax Reform

The most notable tax reforms occurred in the 1980s, during President Ronald Reagan’s administration. Many were convinced that lowering the marginal tax rates for all were absolutely essential to a strong, stable economy. In 1981, Reagan signed the Economic Recovery Tax Act into law, which included a 25 percent reduction in marginal tax rates for individuals, phased in over three years, then indexed for inflation. Then came the Tax Reform Act of 1986, the broadest revision of the federal income tax in history. When the measure finally passed, it produced a simpler code with lower rates and fewer tax breaks. The changes were widespread, affecting every family and business in the country.

While the Tax Reform Act of 1986 was considered one of the most significant pieces of legislation ever passed, its overwhelming success was relatively temporary. The legislation closed tax shelters for particular individuals, but it did little to close all of the exemptions that prevent overall economic growth. Additionally, many of the tax loopholes that disappeared in the ’80s have been added back into the tax codes.

Bush-era Tax Reform

Since the 1980s, the tax code has been altered numerous times. An analysis by the Huffington Post in 2013 showed that the tax code has had 4,680 changes since 2001, more than one a day on average. In 2001, President George W. Bush reversed the trend of tax increases with tax cuts when he signed into law the Economic Growth and Tax Relief Reconciliation Act of 2001. The tax bill stemmed directly from Bush’s campaign promises to return the country’s budget surplus to the American people in the form of tax relief.

Bush’s temporary tax cuts, which were set to expire at the end of 2010, became permanent after Congress voted to extend them in 2013. Research has shown that these tax cuts drove the deficit, fueled income inequality, and benefited the wealthy over the middle-class. According to the Tax Foundation: “The bill cut the rates of the top four tax brackets by 3-4 points, added a new 10 percent bracket for low-income households, increased the standard deduction for married couples, and doubled the child tax credit.”

Trump’s Proposed Tax Plan

Trump’s tax plan has been compared to the 2001 Bush tax cuts. Trump plans to simplify the U.S. tax code by combining the seven tax brackets into three, with individual tax rates at 12 percent, 25 percent, and 33 percent. Moreover, Trump also wants to repeal the death tax, and increase the standard deductions for joint filers and single filers.

Trump’s tax plan would eliminate Obamacare’s net investment income tax, an additional tax on investment income, as well as the Alternative Minimum Tax. The original goal of the AMT was to ensure that a small number of wealthy taxpayers pay some tax; however, now it ensnares millions of taxpayers because the threshold of the AMT has not increased at the same pace as taxpayer income.

The top one percent of earners in the country will likely gain the most from Trump’s tax plan. Top earners would see the largest tax cuts–up to 7.3 percent–and middle-class families are poised to see their taxes rise under Trump’s plan, particularly single-parent families. Lily Batchelder, visiting fellow at the Tax Policy Center, noted that a single parent earning $75,000 annually with two school-age children would face a tax increase of over $2,400, as the Trump plan eliminates the $4,000 exemption for each person in a household. Additionally, a study by the Tax Policy Center found that three quarters of the total tax cuts would go to the top one percent of earners. Even the Tax Foundation, a more conservative D.C. think tank, found that all taxpayers would see an increase in after-tax income of at least 8.4 percent, but the top 1 percent would see a jump of 13 percent.

Steve Calk, a Trump economic adviser, argues that there will be large tax cuts for middle-class families. Calk contends that the Trump proposals will boost economic growth by reducing the corporate tax rate from 35 percent to 15 percent. The Tax Policy Center estimates that the government is poised to lose roughly $6.2 trillion in revenue, but economists are still in disagreement as to whether the Trump tax plan will be positive or negative for the economy. The Trump plan seeks to eliminate the federal estate tax completely; thus, the wealthiest taxpayers, the only people who pay this tax in the U.S., are likely to save even more under the Trump administration.

Conclusion

Without levying taxes, it would be difficult to generate the necessary revenue to fund government programs and services. As Supreme Court Justice Oliver Wendell Holmes once said, “Taxes are what we pay for a civilized society.” The nature of such taxation, however, is certainly subject to interpretation.

Trump’s tax plan is likely to cause controversy as the months unfold in his administration. Moreover, Trump’s proposed alterations are subject to approval by Congress, so it’s highly likely that some aspects of Trump’s plan will be different after negotiation. Congressional Democrats have stated that they will try to prevent Republican plans to overhaul the tax code, noting that the proposed changes are a massive benefit for wealthy citizens, not working-class Americans. On a positive note, there are elements of Trump’s plan that may improve incentives to work, save, and invest. Whether this plan will generate positive changes for the economy and for working-class families, however, is still up for debate.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

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There are few things more unsavory than manipulative gifts and bribes, especially when they are received by someone holding a public office. To protect against such foreign meddling and intrusion in American politics, the framers of the Constitution decided to embed language in the document strictly prohibiting such conduct. The Emoluments Clause was established to ensure the new government of America was insulated from corruption.

However, there is increasing concern among politicians and citizens that President-elect Donald Trump, with his vast corporation that has interests all over the world, will violate the Emoluments Clause when he steps into the office. Moreover, the President-elect will be in an extremely unique position; since he has not yet divested himself fully of his business holdings. He’s poised to make a profit as money comes into his privately-held corporation, the Trump Organization. Read on to learn more about the Emoluments Clause and these concerns.

What is the Emoluments Clause?

The framers of the Constitution were deeply afraid of foreign interference in the American political system, particularly after seeing its effects in Europe. Thus, Article I, Section 9, Clause 8 of the Constitution, commonly referred to as the Emoluments Clause, prohibits any person “holding any Office of Profit or Trust” from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” Additionally, it prohibits the federal government from bestowing titles of nobility. Explicit congressional consent has the ability to validate these particular exchanges, otherwise these payments are strictly prohibited. In 1787, America was still a brand-new government, one highly vulnerable to manipulation by world powers; thus, those who gathered to construct the Constitution wanted to break from the corrupt practices of previous governments.

Generally, America’s Founding Fathers were very cognizant of how private financial interests could potentially sway even the most moral of leaders. Historical evidence has even suggested that some of our Founding Fathers saw the Emoluments Clause as a broad anti-corruption measure. While the basis of the clause was to reject gifts that pertained specifically to diplomacy, it was also deemed a way to reject any corruption or foreign influence.

Emoluments is a broad term, but the construction of it is meant to be as broad as possible. So, an emolument is any transaction between a federal officeholder and a foreign state, in which the benefits are inconsistent with a fair market exchange in an arms-length transaction. There is not a firm consensus in the community regarding the definition of the term, but arguably emoluments could cover ordinary, fair market value transactions that result in economic profit or benefit to the federal officeholder.

Foreign Interference in the U.S. Political System

There is substantial evidence that a foreign power interfered in the American political system during the 2016 presidential election. According to many on Capitol Hill, the CIA, and the White House, Russia actively attempted to affect the outcome of the 2016 election. This was accomplished via the hacking of the Democratic National Committee and other political arms of the Democratic Party, resulting in the release of thousands of emails.

Strictly prohibiting foreign government presents and emoluments, of any kind, is even more important for national security purposes. Mitigating conflicts of interest with foreign governments is of the utmost importance as America ushers in a new administration in 2017.

Trump, Conflicts of Interest, and Foreign Entanglements

President-elect Trump has diverse business interests on a global scale. Even after Trump takes his oath of office on January 20, 2017, he will still continue to receive steady streams of income from a vast array of entities and foreign powers. Trump’s continued interest in the Trump Organization, as well as his stake in hundreds of other entities, make him arguably the most entangled president-elect in conflicts of interest in American history. As one political ethics and compliance lawyer in Washington noted, any sort of business with a foreign corporation, whether it is owned in part or completely controlled by a foreign government, that benefits Trump could be a violation of the Emoluments Clause.

In the domestic arena alone, there are over ten cases challenging Trump’s labor practices that are pending before the National Labor Relations Board, with two vacancies to be filled by Trump himself. Moreover, the Internal Revenue Service auditing Trump will soon pick its new chief. Trump will become both the landlord and tenant of the Trump International Hotel in Washington, D.C., and he is now responsible for picking the new Treasury Secretary while owing several hundred million dollars to banks.

On the global scale, Trump has business holdings all over the world. While many transactions may not involve a bit of impropriety, it is still highly possible that they have the ability to cause blurred lines. Moreover, Trump has consistently declined to make his business dealings transparent, enshrouding the full extent of potential issues with his businesses in secrecy.

The full extent of his businesses, which include real estate, clothing, jewelry, golf courses, and much more, give rise to a variety of ethical considerations. When Ivanka Trump appeared on “60 Minutes” in November 2016, the business took advantage of a potential marketing opportunity by urging reporters to write about the $10,800 gold bangle bracelet she wore during the interview. Furthermore, Trump’s sons and their Texas nonprofit organization came under fire in December 2016 for soliciting million-dollar donations for unnamed “conservation” charities in exchange for access to Trump during inauguration weekend. Eric Trump stopped fundraising for his charity, which raised money for childhood cancer, after the foundation came under scrutiny for posting an online auction for coffee with Ivanka.

There are a lot of questions about how Trump’s businesses will function while he is in office. Currently, all Trump has identified is that he would leave his businesses before inauguration, leaving his children, Don and Eric, to manage them. He has also commented that no new deals will be done during his term(s) in office.

Does the Emoluments Clause Even Apply to the President?

Some scholars contend that the Emoluments Clause does not apply to the President. Many point out that there’s no real case law or precedent as to how courts could interpret the clause. But throughout American history, U.S. presidents have acted as though it does apply to them. There is evidence that at least one president, however, did not follow the Emoluments Clause. President George Washington, during his time in office, received gifts from both the French ambassador to the U.S. as well as the Marquis de Lafayette. Scholars also dispute whether the clause applies to a specific kind of payment, such as a gratuity or a gift, or if all types of payments are subject to the clause. Additionally, there is disagreement over whether the payment must be favorable or any fair market payment.

“Trump Vodka” Courtesy of Michael Lehet : License: (CC BY-ND 2.0)

The Congressional Research Service has also noted that the Emoluments Clause is one of a few ethics statutes that potentially apply to the president. However, the Department of Justice’s Office of Legal Counsel specifically affirmed in 2009–when President Obama accepted the Nobel Peace Prize–that the president holds an “Office of Profit or Trust.” Moreover, the Constitution explicitly refers to the president as holding an “Office.” A record going back even before the OLC and DOJ further shows a litany of government lawyers and previous presidents applying the clause to the presidency.

Trump, as a business man, is navigating in uncharted territory with his position in the Trump Organization. It is unprecedented that payments going to a corporation will eventually materialize as a profit for Trump. Since the business is a privately-held corporation, it is essentially an extension of Trump; conversely, if the Trump Organization were a publicly-held corporation, such questions would likely not arise even if potential conflicts of interest could still exist.

Potential Legislation to Force Trump to Divest His Empire

Some in Washington are extremely concerned about foreign influence and conflicts of interest in American politics because of Trump’s businesses. Senator Elizabeth Warren (D-MA) has promised that she and four other Democratic senators will introduce a bill to implement and enforce the Emoluments Clause in January 2017. Such a bill, if passed, would force Trump to divest himself of his empire, placing his assets in a true blind trust.

A true blind trust would likely mean no involvement in his businesses from any of his family members, Don and Eric included. It would require a completely independent manager, not closely tied to the holder, to run the business. Presidents are certainly held to a higher standard than other Americans. Considering Trump’s platform was to root out corruption in Washington, his critics argue that divesting himself of the Trump Organization may be in the best interest for the country.

Conclusion

Despite these concerns, Trump has demonstrated no real intent to divest himself fully from his business interests once he steps into the White House. If the bill presented by Senator Warren and other supporters is passed, then Trump’s current plans may drastically change. One thing is quite clear: Trump, a billionaire with business holdings all over the globe, may find himself knee-deep in many conflicts of interest. Maintaining a presidency free from bribery, corruption, and self-motivated profits is absolutely critical, just as the Constitutional Convention intended.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

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On December 2, President-elect Donald Trump dramatically broke from decades of United States policy in Asia by speaking with the president of Taiwan via a phone conversation. This call was the first known contact between either a U.S. president or a president-elect with a Taiwanese leader since before the U.S. severed diplomatic relations with the island in 1979. The event shocked the world, and the statements from Trump that followed only seemed to exacerbate strained relations between the U.S. and China.

The phone call was seen as a departure from the “One China” policy, that has governed U.S. relations in Asia since the late 1970s. But what exactly is the One China policy? And how will this potentially colossal shift in foreign policy from President-elect Trump and his administration affect the future of U.S.-China relations?

Evolution of the One China policy

In the 1979 U.S.-P.R.C. Joint Communiqué, the U.S. withdrew any diplomatic recognition from Taiwan in order to acknowledge the Beijing regime as the sole legal government of China, thus creating the One China policy. The policy reflects the view that there is only one state called “China,” despite two governments claiming to be “China.” This policy differs from the One China principle, which insists that both Taiwan and mainland China are inalienable parts of China. Neither the Republic of China, nor the People’s Republic of China recognize the other as a legitimate government. Officially, the U.S. defines the full content of its One China policy as consisting of three Sino-American communiqués, one at the time of Nixon’s visit (1972), mutual establishment of diplomatic relations (1978), and the attempted resolution of American arms sales in 1982.

This particular policy can be traced all the way back to 1949 and the end of the Chinese civil war. The defeated Nationalists retreated to Taiwan and made it their seat of government, while the Communists held on to the mainland. At first, many countries, including the U.S., wanted to distance themselves from Communist China; however, the U.S. started to see a mutual need to develop relations in the 1970s. Proposals that the U.S. recognize two Chinas were strongly rejected by the People’s Republic of China. Finally, in 1979 under President Jimmy Carter, the U.S. normalized relations with China, cutting diplomatic and official ties with Taiwan. Furthermore, the U.S. withdrew U.S. forces from Taiwan, allowing the mutual defense treaty in Taiwan to expire.

Current State of Affairs

The U.S. has made it abundantly clear on a global stage that it does not consider the political entity in Taiwan to be a state. However, it also does not accept the contention that Taiwan is part of China; the formal legal position from the U.S. is that Taiwan’s status is “undetermined.” Taiwan’s lack of diplomatic recognition by the U.S. and many other nations means it cannot become a member of most international organizations, including the United Nations.

So, that means for nearly four decades, the U.S. has had somewhat of a relationship with a foreign government it does not officially recognize, that government governs a state that the U.S. does not formally acknowledge exists, and resides on an island whose status according to the U.S. is undetermined. The U.S. and Taiwan also have significant presences in each country that have very specific diplomatic privileges and immunities. Taiwan’s president is allowed to make “transit stops” in the U.S. while traveling to other destinations, though is not allowed to make official visits to the U.S. and is not invited as an official delegate to U.S. events. Additionally, the Taiwan Relations Act, which was also enacted in 1979, mandates that the U.S. make defensive arms available to Taiwan, help maintain the island’s ability to resist any force that could jeopardize its security, and potentially take appropriate actions if there is any such threat.

“Made in Taiwan” Courtesy of diaper : License (CC BY 2.0)

Moreover, there is a substantial amount of trade and investment between the U.S. and Taiwan. The U.S. is Taiwan’s second-largest trading partner, and Taiwan ranks as the ninth-largest trading partner for the U.S. In 2015, U.S. goods and services trade with Taiwan totaled $86.9 billion. According to data from the Department of Commerce, U.S. exports of goods and services to Taiwan employed an estimated 217,000 workers in 2014. The U.S.-Taiwan industry includes a vast array of products: electrical machinery, vehicles, plastics, snack foods, as well as processed fruits and vegetables. However, China has grown to be Taiwan’s largest trade partner, absorbing nearly 30 percent of Taiwan’s exports by value. Any significant stirring of the status quo has the potential for grim consequences for the U.S., China, and Taiwan.

Trump’s Position on One China

Despite the strong U.S. stance on One China, Trump took a phone call from Taiwan’s leader, Tsai Ing-wen. It was a roughly ten-minute long conversation, described as a congratulatory phone call. Trump maintained that it would have been disrespectful not to have taken the call, and that he had only heard about it just an hour or two in advance. Just two days after the controversial phone call, Trump took a pointed jab at China on Twitter, accusing the country of keeping its currency artificially low and engaging in military posturing in the South China Sea.

Trump boldly stated in an interview with Fox News Sunday on December 11 that he does not feel “bound by a one-China policy.” Moreover, the Trump transition team has openly referred to Tsai Ing-wen as “President of Taiwan.” This public recognition of Tsai Ing-wen as President of Taiwan openly undermines the only aspect of One China that both the U.S. and China actually seem to agree upon–that Taiwan is not a state.

Future concerns about U.S.-China relations

Many U.S. leaders are concerned that Trump’s flippancy with regard to the One China policy will lead to further strained relations with China. In fact, China expressed that it is “seriously concerned” after President-elect Trump questioned whether the U.S. should maintain its current position. Recent comments by Trump have demonstrated a willingness to use One China as a bargaining chip to iron out more favorable deals on trade.

Critics have further pointed out that Trump’s inexperience in foreign relations could have profound consequences globally. Tensions have already increased in the South China Sea, a major shipping route, as Chinese dredging operations continue in the Spratly Islands–China has been turning sandbars into islands with airfields, ports, and lighthouses. Beijing has also warned any U.S. warships and military aircrafts to stay away from the islands. A front-page opinion piece published on the overseas edition of the People’s Daily, the Communist Party’s official platform, noted that the call set a bad precedent and rang a warning bell in China.

In the past, China has not been afraid to express displeasure with U.S.-Taiwan relations and perceived violations of the One China policy. After the U.S. granted Taiwan’s pro-independence president, Lee Teng-hui, a visa to visit Cornell University in 1995, China conducted a missile test in the Taiwan Strait. The test was seen as a way to intimidate Taiwanese voters into not voting for Teng-hui during the 1996 election, though he did end up winning.

Presently, China has made its position abundantly clear. Cooperation with the U.S. cannot occur if Trump does not adhere to the One China policy. On December 10, Chinese military aircraft flew over waterways near Taiwan as part of long-range exercises. The drills lasted for about four hours and involved more than 10 aircrafts. Furthermore, Chinese Foreign Ministry spokesman Geng Shuang stated, “Adherence to the One China principle serves as the political foundation for the development of China-US ties. If this foundation is wobbled and weakened, there is no possibility for the two countries to grow their relations in a sound and steady way and cooperate on key areas.”

Military action is not the only method China could utilize to effectively retaliate against the U.S. for violating the One China policy or attempting to use Taiwan as a pawn in negotiations. China could make business increasingly difficult on its soil and use state-run media to encourage public boycotts of U.S. companies. Additionally, allies of Taiwan could be persuaded to switch allegiance to China, if given more aid. China could cease communications with Washington and further decrease trade and economic ties with Taiwan.

Conclusion

While the future is unknown, one thing appears to be certain: China will not tolerate anything less than the current status quo. Careless indifference to the One China policy could have serious ramifications on a global scale. If the new administration ignores decades-old diplomatic relations with China, there is a large risk of destabilizing U.S.-China relations and perhaps even sparking a true crisis.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

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Environmental taxes and “ecotaxes” are not a new phenomenon. Proponents of sustainability have advocated for environmental-impact taxes for a variety of products and activities. By requiring a tax, the goal is to drastically change behavior and encourage a more “green” lifestyle. Until recently, no significant research had been completed to determine the global environmental and health impacts of an environmental tax on food. Now, the journal Nature Climate Change has published the first global analysis of such a tax. Read on to learn more about these taxes. 

Environmental Taxes

Environmental taxes, or “ecotaxes,” are taxes on products or activities that are considered harmful to the environment. One of the central goals of a more “green” economy is having prices reflect the true cost of certain activities. The purpose of ecotaxes is to change people’s behavior and promote environmentally-friendly activities. Because the free market fails to address environmental concerns and sustainability, ecotax policies are meant to force the market to consider environmental impacts.

These policies are known as the “green tax shift.” Examples of these taxes include carbon taxes, waste disposal taxes, and taxes on pollution and other hazardous wastes. Generally, ecotaxes can fall into two distinct categories: revenue-motivated and incentive-motivated. Revenue-motivated ecotaxes are designed to actively change behavior by putting or increasing taxes on products or activites that are deemend harmful to the environment. Incentive-motivated ecotaxes instead take a different approach, offering tax credits and relief in exchange for consumers engaging in more environmentally-friendly behavior.

Currently, many products externalize environmental costs. This means that prices are placed at an artificially low value on non-renewable resources. Effects on the air, water, and soil are not taken into account when determining the price of a product. Thus, ecotax reform encourages internalizing these costs, so the long-term environmental consequences of economic activity are not completely ignored.

Agriculture’s Impact on Climate Change

Curbing climate change is of the utmost importance as the world moves further into the 21st century. At the forefront of mitigating the damaging effects of climate change is the agriculture industry. Perhaps what’s even more critical than regulating agriculture as a whole is focusing efforts on the meat and dairy industries. The global livestock industry contributes more greenhouse gas emissions than cars, planes, trains, and ships combined, though most people still mistakenly believe that transportation is the biggest contributor to climate change.

Changing consumer perception regarding meat consumption, however, is a difficult task to complete. Researchers and scientists across the world agree that changing dietary habits is crucial to curbing climate change. In a landmark report from the Intergovernmental Panel on Climate Change from 2014, researchers found that dietary changes have the ability to substantially lower emissions, despite very little global action to achieve those goals. Many calls to reduce meat consumption have been met with controversy and significant pushback.

Also, the rising demand for meat across the globe, including rapidly increasing meat consumption from heavily-populated countries such as China, may push climate change over the tipping point. Thanks to a rising population and more affordable meat prices, these products are being consumed at a higher rate than ever before. Recent peer-reviewed studies have shown that agricultural emissions will take up the world’s entire carbon budget by 2050, meaning every other industry like transportation and energy would have to be zero carbon.

An Environmental-Impact Tax on Food?

Food production and agriculture are massive contributors to greenhouse gas emissions. Recent research demonstrates that the global food system is responsible for roughly 25 percent of all greenhouse gas emissions. However, agriculture has never been included in American plans to reduce emissions. A brand new study suggests using an environmental-impact tax on food to combat this problem.

A study recently published in the journal Nature Climate Change states that if taxes were applied to food products based on the environmental impacts of their production, the environmental costs of agricultural activity could be substantially lowered. Specifically, climate taxes on meat and milk could lead to vital cuts in carbon emissions. The study is the first of its kind; the first global analysis of both the environmental and health impacts of a greenhouse gas on food.

The study runs through the environmental impact of each food type, figuring out the tax required to compensate for damage caused. Beef has the largest footprint, due to deforestation and massive methane emissions. Taxes of 40 percent on meat and 20 percent on milk would be substantial enough to account for the damage the production of these products causes people through climate change, the authors contend. Additionally, increasing the price of beef by 40 percent would likely result in a 13 percent drop in consumption. Some other taxes needed to compensate for climate change are 15 percent on lamb, 8.5 percent on chicken, 7 percent on pork, and 5 percent on eggs. Vegetable oil would require a 25 percent tax increase, but mostly because the initial price of the product is very low.

Some countries are already considering environmental impact taxes on food products. Denmark is one country that has already considered implementing a tax on red meat to fight climate change. The Danish Council of Ethics has recommended a tax on beef this year, coming to the conclusion that “climate change is an ethical problem.” Denmark views climate change as a direct threat to the country. Since it can’t rely on ethical consumers, it believes society must send a clear message regarding climate change through regulation. 

Optimum Tax Arrangement

The authors also took their study one step further, assessing the optimum tax arrangement for both emissions and health. After examining different tax regimes, the authors determined that the ideal policy would combine these taxes with subsidies for food, specifically healthy food such as fruits and vegetables. Moreover, maintaining a broad tax coverage–meaning many countries adopt such policies–would have the most beneficial effects.

This tax plan would reduce emissions by 1 billion tonnes a year, which is the total of the global aviation industry. The researchers were also surprised by the ability to cut emissions on such a massive level, especially when looking at the heavy impact of the dairy industry. Successful food tax policies take money generated through higher taxes and use the revenue for positive outcomes. Here, researchers advocate for utilizing tax revenue to ensure people can afford healthier diets.

Image Courtesy of Robert Couse-Baker : License (CC BY 2.0)

Many of the products that could have the greatest climate change impact also tend to be products that should be consumed in limited quantities. In the U.S., people on average consume three times the recommended amount of meat products, likely due to the relative ease of accessibility as well as a penchant for meat and dairy products. The most deadly and widespread diseases, such as heart disease, strokes, and cancer, may be curbed immensely by reducing meat and dairy consumption. Just last year, the World Health Organization classified processed meat as a carcinogen, while simultaneously classifying red meat as a probable carcinogen–specifically colorectal cancer. Thus, this new published research even noted that imposing an environmental impact tax on food products could end up saving more than half a million deaths each year in the U.S., Europe, Australia, and China. Saving significant money on health costs is a distinct possibility through these policies, as healthier diets would be both encouraged and subsidized.

Conclusion

Environmental impact taxes on food products are certainly controversial, just as the highly-debated soda taxes being implemented across the U.S. have been over the past few years. However, changing habits and behavior simply through marketing and advertisements can be nearly impossible to do. Public sensitivity regarding food choices has led to very few changes in how food is produced and consumed. Sometimes, financial incentives can be the ideal method for encouraging better and more responsible consumption.

As the global population increases, feeding the world will likely become a more daunting task. Currently, many food and tax policy issues are tied up in political knots, with governments hesitant to interfere in what is viewed as more “personal” choices. The powerful sway the food and agriculture lobbying industry has in shaping food policy cannot be ignored either. Additionally, this new research was not all positive, as there are potential negative impacts of adopting such tax regimes. Reductions in food availability and security is a possibility but could be mitigated by tailoring tax plans to each region of the globe. 

For now, environmental impact taxes on food may just be an idea rather than a reality. Such policies would impact more than just climate change, they would impact human health as well. Scientists and researchers across the globe seem to be coming to the same conclusion: to have a substantial impact in reversing climate change, dietary changes are essential to keep global warming below two degrees Celsius. This is a burgeoning field of research in both food and tax policy areas, but the current results are certainly compelling.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post Environmental Taxes: Can Food Taxes Combat Climate Change? appeared first on Law Street.

About a decade ago, public health researchers started advocating for implementation of a soda tax to combat consumption of sugary drinks. Soda intake has long been linked to the exacerbation of a series of potentially avoidable health problems including: obesity, diabetes, and tooth decay. After the recent election, four more U.S. cities voted to adopt a soda tax, spreading this new “sin tax” to more areas across the country. With more than one-third of American adults currently classified as obese, soda taxes could become a go-to method for combatting obesity, while simultaneously generating revenue for state budgets to fund local programs.

What are Sin Taxes?

Sin taxes are state-sponsored taxes that are added to specific products that are generally seen as vices, such as gambling, alcohol, and tobacco. In essence, by utilizing financial means, the government attempts to discourage individuals from engaging in a specific activity or using specific products without actually making those products or services illegal. Sin taxes are often compared to Pigovian taxes, which are taxes that generate negative externalities. In tax policy, a Pigovian tax is a fee assessed against private individuals or businesses for engaging in a specific activity; a negative externality occurs when an economic actor does not fully internalize the cost of activity. A simple example of a Pigovian tax is a pollution-related tax.

Currently, sin taxes are employed in a variety of sectors. Typically, they are added to liquor, tobacco, gambling, and other non-luxury items. There tends to be a decent amount of public support for sin taxes, as they are indirect and only affect those who use the specific products. Sin taxes are also extremely popular when trying to close large state budget gaps. Employing sin taxes for soda and sugar-sweetened beverages can help generate revenue and encourage public health initiatives. One research economist from the Research Triangle Institute has modeling data that suggests a six-cent tax on a twelve-ounce bottle of soda would lead consumers to drink 5,800 fewer calories from sugary drinks per year.

Using Soda Taxes to Combat Obesity

In 2014, voters in Berkeley, California passed the nation’s first soda tax, which went into effect in 2015. Additionally, in 2014, Mexico passed its own soda tax. After one year, sales of soda in Mexico fell as much as 12 percent, while bottled water purchases rose four percent. The researchers also found that while decline was seen across all socioeconomic groups, it was greatest among those who were low-income, with consumption falling 17 percent.

In the U.S., Berkeley’s tax was largely successful; research showed that soda consumption dropped in the city a staggering 20 percent. Philadelphia was the next city to follow suit, passing a soda tax earlier this year–thus becoming the first major city in the U.S. to do so. The tax, which is expected to generate $91 million annually, will be spent on pre-kindergarten programs in the city, creating community schools, improving parks and recreation centers, and libraries.

The beverage industry has fought extensively to keep soda taxes from passing elsewhere in the country. Advocates from the American Beverage Association, which represents all major soda brands, responded to the Philadelphia policy by arguing that the tax was regressive and unfairly singled out “low” and “no-calorie” beverages. In an effort to combat the tax, companies in the roughly $100 billion industry have focused their efforts on reformulating existing drinks to make them more healthy for consumers. However, even “diet” sodas are experiencing a sharp decline in sales, particularly because of increased suspicion regarding artificial sweeteners.

Soda Taxes Passed in November 2016

The World Health Organization recently recommended that governments impose soda taxes in order to combat a variety of diet-related diseases exacerbated by high soda consumption. Soda taxes were on the ballot in early November of this year in  three California cities–San Francisco, Albany, and Oakland–as well as Boulder, Colorado. The soda taxes passed in all four cities with fairly large margins of support, much to the dismay of the beverage industry. The American Beverage Association spent upwards of $9.5 million on an ad campaign opposing the measures entitled “Don’t Tax Our Groceries.”

The amount of tax in each city, however, varies. In San Francisco, Albany, and Oakland, the tax is one penny per ounce of soda. In Boulder, the tax is two pennies per ounce of soda, and the soda tax that passed earlier this year in Philadelphia was set at 1.5 cents an ounce. The disparities in the amount of tax per ounce are likely to continue as more jurisdictions follow suit.

These laws are also coming into effect at a time when soda consumption is down among Americans. In a 2014 Gallup poll, nearly two-thirds (63 percent) of Americans reported avoiding soda in their diet; in 2002 that number was only 41 percent. Moreover, over the last 20 years, sales of full-calorie soda have dropped by more than 25 percent. “Big Soda” is experiencing a substantial and sustained decline, while bottled water remains on track to overtake soda as the largest beverage category. The changing soda consumption patterns are noticeable in schools, where cafeterias and vending machines have stopped carrying regular sodas, and in many workplaces and government offices that have similarly limited sales. Soda, it seems, has now become the new tobacco: an unhealthy product that should be limited, if not outright banned, and taxed significantly.

“Soda” Image Courtesy of Rex Sorgatz : License (CC BY 2.0)

Issues with Soda Taxes

Not everyone is a fan of soda taxes. While the American Health Association has touted the win as a huge victory, many argue that the taxes affect low-income populations the most. Sin taxes arguably have a disproportionate effect on poor and less educated communities. Since sin taxes are typically regressive in nature, the less money a person makes, the larger percentage of his or her income the taxes take. Essentially, if comparing two “pack-a-day” smokers–one lower-income citizen and one high-income citizen–one can see that the two are spending the same amount of money on cigarettes and taxes each year. The taxes on those same cigarettes, however, are taking up much more of the lower-income citizen’s paycheck.

Additionally, the beverage industry contends that more taxes are not ideal when pursuing public health initiatives. Susan Neely, CEO of the American Beverage Association, stated that consumers don’t want these taxes. She also added that the industry is committed to reducing the amount of calories and sugar in these beverages and combating diet-related issues in a variety of manners. This includes partnering with Alliance for a Healthier Generation in order to try to change behaviors of people who may be receiving far too many calories from beverages. Other strategies include an ad campaign called “Balance What You Eat, Drink & Do” that encourages people to think more readily about the calories they are consuming. The beverage industry is also working with retailers to put more low-calorie choices at eye-level, so consumers will be more likely to pick those choices.

Conclusion

Whether you see soda taxes as a necessary movement or not, the U.S. is certainly grappling with an obesity epidemic. Educating the public about calorie and sugar consumption is critical to combating this public health crisis, in addition to making a myriad of low-calorie, no-calorie, and low-sugar choices more readily available in a variety of communities across the country. Sometimes, the easiest way to help people make changes is by utilizing financial means, and soda taxes may be an effective way to incentivize healthier behaviors. The law of demand works in practice, not just theory: when prices go up, people buy less.

For now, soda taxes seem to be here to stay, as they find their way into more cities across the country. “Big Soda” does appear to be in serious decline, and unless the industry can find a way to keep up with the public’s changing preferences, the downward trend may continue into the future. While the amount of a given tax will continue to vary depending on the jurisdiction, the long-term effects of taxes may be even more effective if taxes are increased and become more widespread. The amount of money generated from soda taxes has the potential to be large, and using the revenue to fund desperately-needed or underfunded programs, like Philadelphia intends to do, may be an ideal solution.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post Are Soda Taxes the New Sin Tax to Combat Obesity? appeared first on Law Street.

The use of herbicides and pesticides on crops has become the default method for conventional agriculture. Despite growing public concerns over the use of chemicals on our food supply, these products continue to saturate the market and are utilized at a steady rate. While researchers continue to evaluate the long term effects these potent chemicals have on humans and the environment, another chemical has been added to farmers’ ever-growing arsenal. The Environmental Protection Agency has proposed to expand the use of Enlist Duo, an effective weed killer, from 15 to 34 states. But should we be worried about the toxicity of this popular herbicide?

Enlist Duo

Originally, in 2014, the Environmental Protection Agency (EPA) approved the use of a brand new herbicide, Enlist Duo, for genetically modified corn and soybean crops. Enlist Duo is a chemical manufactured by Dow AgroSciences, which is a subsidiary of the Dow Chemical Company–one of the largest chemical companies in the world.

After the initial approval of Enlist Duo, the EPA asked a court to give it another opportunity to re-review the approval of the chemical. In a highly unusual move, the agency asked for a withdrawal of its own approval of the product. According to the EPA, it had reviewed the patent submitted by Dow to the U.S. Patent and Trademark Office and discovered a significant discrepancy. Particularly, the company claimed the product’s combination of two chemicals, 2,4-D and glyphosate, amplified each other and created a far more potent herbicide.

The EPA was concerned that Dow had not disclosed this synergy during the agency’s initial review of the product’s environmental and health risks. The agency scientists wanted to decide if there needed to be a larger no-spray zone at the edge of farm fields. Studies where rats, rabbits, birds, and fish were given one large dose of Enlist Duo showed no increased toxicity in the animals after two weeks. However, the agency never requested that Dow chronically dose rats with a combination of 2,4-D and glyphosate. Therefore, long-term health effects of the chemical mixture are unclear.

“Pesticide spraying” Image Courtesy of Jetsandzeppelins : License (CC BY 2.0)

Lawsuit

Several environmental groups, led by the National Resources Defense Council, brought a lawsuit against the EPA over Enlist Duo in 2014. The plaintiffs stated that the EPA had violated the law because it had not adequately considered the effect that Enlist Duo would have on public health and the environment, particularly the monarch butterfly population.

Dow, of course, opposed the allegations as well as the EPA’s request to vacate the original approval, suggesting instead that the court remand the registration back to the EPA for further evaluation. The company voluntarily agreed to stop sales of the product while the EPA reevaluated it. Additionally, Dow stated that it had abandoned the synergy patent in question when a thorough review revealed that the particular synergies were not in the final formulation of Enlist Duo. However, advocacy groups noted in a legal filing that Dow abandoned the patent a year after the EPA approved Enlist Duo, and only after the EPA requested synergy data from Dow.

Eventually, the 9th U.S. Circuit Court of Appeals upheld the EPA’s original approval. The three-sentence judicial order did not elaborate on any reasoning for the decision. This meant that Dow could continue to market the chemical to farmers for sale, even while the EPA was re-reviewing its initial approval. The company reneged its voluntary offer to cease sales, claiming the offer was never agreed to; thus, the chemical remained on the market.

2,4-D and Human Health Effects

Last year, the Chicago Tribune released an investigative article that revealed that the EPA had changed its interpretation of a key study of 2,4-D. Essentially, the EPA changed the no-adverse-effect level of 2,4-D from 7mg/kg to 21mg/kg in rats, paving the way for the agency to reduce consumer protections. EPA scientists dropped a tenfold child-safety factor after conducting a study that concluded there was no longer evidence of a special susceptibility of children to the chemical compound. Regulators set the allowable daily intake of 2,4-D for people at 0.21mg/kg. Thus, the significant change allowed for 41 times more 2,4-D to enter the American diet than previously allowed, an astounding change.

2,4-D has been around since the 1940’s and was one of the ingredients in Agent Orange, a highly toxic and controversial herbicide used by the U.S. military as part of its herbicidal warfare program during the Vietnam War. The EPA has discounted safety data showing that 2,4-D has been linked to cancer and other health problems, such as hypothyroidism and Parkinson’s disease. In order to make the change in allowable daily intake, the EPA has tossed aside research produced by Dow’s own scientists regarding kidney problems and kidney lesions caused by 2,4-D.

The overuse of chemicals, like Roundup, year after year has resulted in an increase in weed resistance, or “superweeds,” leaving companies scrambling to find more effective products to market to farmers. As a result, agriculture is now turning back toward older, more toxic products, like 2,4-D. But if you’re concerned about exposure to more toxic weedkillers, disclosures in Dow’s patent applications are very telling. The company’s application for genetically modified corn and soybeans foreshadows a day when weeds develop a resistance to both glyphosate and 2,4-D. The records show that Dow eventually envisions a day when the company must add even more traits to corn and soybeans so that the crops can survive being sprayed with up to 17 different chemicals.

Concerns Regarding Enlist Duo Use

One of the largest concerns surrounding Enlist Duo use is that Dow may have lied on its patent application. A Dow spokesperson adamantly denies that contention, stating that the EPA and the U.S. Patent and Trademark Office have “different standards of data requirements” and the company’s claims that the two chemicals amplified each other were “based on a limited dataset.”

After the re-review and approval of Enlist Duo this year, the EPA has also announced a proposal to expand where the new herbicide can be used. Currently it is used to suppress weeds on corn and soybean crops. Now, the EPA is considering whether to allow its use on cotton crops. This expansion means that the new herbicide may be approved for use in 34 states, as opposed to the original 15 states. Moreover, the World Health Organization has issued findings that glyphosate and 2,4-D are probable and possible carcinogens, respectively, in addition to the other health concerns related to 2,4-D.

Monarch Butterfly Populations

In addition to human health hazards, environmentalist groups are concerned about Enlist Duo’s effect on the monarch butterfly population. Monarch butterflies have struggled in recent years, with populations in a steep decline due to the overuse of glyphosate products, like Roundup. Enlist Duo’s chemicals specifically obliterate milkweed, the plant that monarchs need to survive. A 1999 survey found that milkweed was in at least 50 percent of Iowa corn and soybean crops; by 2009, milkweed was only found in 8 percent of those same fields.

Additionally, estimations of the monarch butterfly populations have remained low, despite an initial bump in numbers, after a winter storm killed millions before they ever left the Mexican monarch reserve. Storms devastated 133 acres of trees west of Mexico City and affected over 7 percent of monarchs, with about 6.2 million butterflies frozen or killed.

“Monarch caterpillar on common milkweed in Minnesota” Image Courtesy of USFWSmidwest : License (CC BY 2.0)

The EPA’s failure to consider the effects of Enlist Duo on monarch butterflies has environmentalists extremely concerned for the ailing population, teetering on the brink of extinction.

Conclusion

The market for Enlist Duo is potentially massive, with 94 percent of soybeans and 89 percent of corn planted in the U.S. genetically modified to survive herbicides, primarily the glyphosate in Roundup. However, the EPA’s suggestion to more than double the number of states permitted to use Enlist Duo has outraged environmentalists and advocates across the country. Many people believe that reviving a World War II-era chemical to combat superweeds isn’t the best solution for the sustainability of industrial agriculture–especially when it could have a negative effect on the monarch butterfly population. The EPA contends that the chemical is “perfectly safe,” and poses no long-term health risks to humans.

The EPA is accepting public comments through December 1, 2016 regarding the agency’s proposal to expand the use and registration for Enlist Duo. 

Resources

Primary

EPA.gov: Registration of Enlist Duo

Additional

Dow: Annual Reports

NRDC: EPA Proposes to Re-Approve Combination Herbicide Enlist Duo

NRDC: EPA Unlawfully Approved Herbicide Enlist Duo

Chicago Tribune: Weedkiller’s Revival is Cause for Concern

Chicago Tribune: EPA Tosses Aside Safety Data, Says Dow Pesticide for GMOs Won’t Harm People

Chicago Tribune: Court Clears Way for Revival of Worrisome Weedkiller

Chicago Tribune: Congress Questions EPA About Dow’s Enlist Duo Pesticide Risks

CBS DFW: EPA May Increase Use Of Weed Killer Despite Concerns

The Guardian: Storms Devastate Monarch Butterflies’ Forest Habitat in Mexico

NRDC: EPA Unlawfully Approved Herbicide Enlist Duo

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post Enlist Duo: Effective New Herbicide or Monarch Butterfly Threat? appeared first on Law Street.

There are many ways to explore and analyze public health. Oftentimes, scientists use a person’s DNA as a method to unlock underlying causes of diseases. However, the best health predictor may not be lying in genetic code, but in one’s ZIP code.

The connection between ZIP codes and human health has long been of interest to researchers desiring to find the best treatment and prevention strategies for some of our deadliest diseases. Land use laws and zoning regulations have transformed some communities and neighborhoods into dumping grounds for industrial plants or undesirable toxic waste. The long-lasting effects of housing segregation and envornmental racism have also had a disparate impact on minorities, reflected in subpar living conditions. Now, some scientists are attempting to explore the importance of ZIP codes as they relate to disease prevention. 

“ZNA”

Dr. Francis Collins, Director of the National Institute of Health, recently noted that our ZIP code at birth is our “ZNA,” “the blueprint for our behavioral and psychosocial make-up.” The air we breathe and the water we drink has just as much of an impact on human health as our genetic code, if not more so. While genetics can inform and shape our health, so too do three other factors: social determinants, community social environments, and physical environments.

Social determinants of health are aspects like income and inequality. Community social environments include crime rates or the particular affluence of a neighborhood. Physical environment means the walkability of a neighborhood or if industrial plants are located near one’s housing. All of these factors overlap each other, influencing one’s health in both direct and indirect manners–some of which may be invisible. Research has indicated that these determinants and influences may have a more powerful impact on health than individual biological differences do.

Housing Patterns and Health Consequences

There are a variety of ways that living in a particular community can affect one’s health. For example, the physical condition of a home can have a profound impact on residents’ health. Building codes in one neighborhood may be more dangerous than in a more affluent one. Disparities in health outcomes across communities are often demonstrated by lead poisoning and asthma. Older homes may have mold or cockroaches, which could also exacerbate underlying health issues.

Land use characteristics, such as residential density, employment opportunities, and walking trails or open spaces, can promote activity and foster a healthy living environment. Zoning also plays a critical role in determining public health. As noted by the Center for Disease Control (CDC), zoning can be instrumental in promoting healthy eating habits and physical activity. Zoning can be utilized to reduce the density of fast food restaurants in a community, incentivize farming in urban areas, and even restrict fast food spots from developing within a specified distance of schools. Additionally, requiring sidewalks, promoting parks and recreation, and widening access to public transportation all play vital roles in increasing physical activity through zoning measures.

Health Mapping

The growth of geographic information science (GIS) and the availability of electronic health records (EHR) now allow for scientists to analyze socioeconomic and environmental factors better than ever before. Health geography has long been an area of medical research that uses geographic techniques to study the impacts of one’s surroundings on their health.

One of the earliest studies employing maps to study dieases was in London, by Dr. John Snow, regarded as one of the fathers of epidemiology. To study the location of cholera outbreaks and deaths in the 1850’s, Dr. Snow used hand-drawn maps showing the location of cholera deaths and then superimposed those with maps of the public water supplies. This allowed him to uncover a cluster of deaths near a particular water pump. His research eventually became an area of study known as disease diffusion mapping, which refers to the spread of disease from a central source, spreading according to environmental patterns and conditions.

GIS utilizes digital software and data sets, along with spatial data, to map multiple aspects of a community. By using and manipulating this geospatial data, researchers are able to thoroughly study the relationship between health, illness, and place. Additionally, EHR can allow scientists to link collected data about the environment with patient medical records. The combination of these powerful tools lends itself well to a broader picture of the interrelationship between ZIP codes, housing conditions and patterns, and human health.

“Not In My Backyard” and Environmental Racism

When development is proposed for a particular community, the most powerful voices can be heard helping to shape the course of the project. “Not In My Backyard” or NIMBY, is a characterization of residents who concede that while a particular project may need to be completed, it should be further away from their community. Projects that could be opposed are practically limitless: any type of housing development, homeless shelters, adult entertainment clubs, and any type of hazardous plants or waste repositories, to simply name a few.

The people who have the power to shape zoning and land use laws in an area tend to be the wealthiest citizens, and usually are white. Thus, more dangerous or undesirable projects are pushed into communities without the bargaining power required to stop them. This type of thinking inevitability promotes environmental racism, utilizing segregated, low-income, minority neighborhoods as the dumping ground for toxic byproducts. This discrimination in land use and zoning policy, particularly fueled by “NIMBY” mindsets, is resulting in increasing health disparities.

What Has Research Uncovered?

Studies have documented that while genetics are an important predictor of health, these other factors have a more powerful impact on health than biology. Income and educational attainment are at least as strongly associated with hypoglycemia in patients with diabetes as particular clinical risk factors. Moreover, those living in areas with less resources for physical activity or healthy food choices have a much higher chance of being diagnosed with type 2 diabetes.

There are dramatic differences in life expectancy rates depending on where one was born in the U.S. In places in the Northeast, populations have a higher life expectancy, while places in the South have the lowest life expectancy rates. These inequalities in mortality rates are intimately tied to housing instability and crowded or subpar housing conditions. In a study of 12,000 New York City households, asthma was more prevalent in Puerto Rican households, immediately followed by other Latino and black households. Moreover, rates of asthma are twice as high in children under the age of 13 in the South Bronx, North/Central Brooklyn, and East/Central Harlem–the three neighborhoods with the highest rates of poverty, morbidity, and mortality in the city.

Additionally, another study utilizing four nationally representative studies noted that worsening economic standing was associated with poor healthcare access, a lack of health insurance, and far higher hospitalization rates. Research has also found that estimated cancer risks associated with ambient air toxics were highest in metropolitan tracts that were highly segregated, and that residential segregation is associated with elevated risks of adult and infant mortality.

The American Housing Survey (AHS) is sponsored by the Department of Housing and Urban Development (HUD) and is considered to be the most comprehensive national housing survey in the U.S. It takes a large representative longitudinal sample of houses on both the state and national level. The most recent survey was completed in 2013, and the results are telling. Data shows that 9.2 percent of non-Latino black homes and 7.2 percent of Latino homes have moderate or severe physical problems, compared with only 3.2 percent of non-Latino White homes.  These numbers are staggering, illustrating a serious issue across the country.

Conclusion

Health-related disparities due to housing can be eliminated if proper measures are taken. For example, childhood blood lead levels have improved by 90 percent since the 1970’s, after effective measures were implemented. Housing conditions continue to be among the greatest determinants of human health, as a large list of highly preventable diseases are intimately tied to poor housing. 

National research and multiple academic reports have continued to affirm that housing access and conditions are among the largest determinants of health, both physical and environmental. There are still numerous roadblocks preventing this issue from being rectified. Significant challenges remain when it comes to legislating and securing meaningful public policies that prevent exposure to physical and environmental hazards, whether it be minimizing indoor pollutants or building high-quality low-income housing. Pervasive housing segregation remains embedded in neighborhoods and cities across the country, adding another layer of difficulty. With the proper focus, combating some of America’s most problematic diseases could be more effective than any other previous attempts.

Resources

Primary

CDC: Zoning to Encourage Healthy Eating

CDC: GIS and Public Health at CDC

Additional

Newsweek: Why Zip Code May Influence Health More Than Genetic Code

Public Health Law Center: Land Use/Zoning

CityLimits.org: Building Justice: Genetic Code, ZIP Code and Housing Code All Affect Health and Equality

CityLimits.org: Builiding Justice: NYC’s Sacrifice Zones and the Environmental Legacy of Racial Injustice

EnvironmentalChemistry.com: Environmental Justice and the NIMBY Principle

GIS Lounge: Overview of Public Health and GIS

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post ZNA: Could your ZIP Code at Birth Predict Your Health? appeared first on Law Street.

For decades, Americans have been grappling with what it means to eat a healthy, well-balanced diet as more information regarding our industrial food system comes to light. Now, it seems the Food and Drug Administration (FDA) has jumped on the bandwagon, revisiting food labels and the definition of “healthy” in an effort to redefine an outdated version.

Public health concerns over misleading food labels and nutrient content claims have increased rapidly, particularly because of the growing obesity epidemic in America. While it is sure to be a lengthy and laborious process, the FDA is seeking public comments to help shape the new definition of “healthy.” The original definition of “healthy” was created decades ago in the mid-1990’s. As nutrition science has evolved, food labels and FDA-regulated definitions of nutrient content claims have been exceedingly slow to catch up. 

Food Labels and Nutrient Content Claims

The FDA is responsible for ensuring that all food sold in the U.S. is safe and properly labeled, whether food is produced domestically or in foreign countries. The federal laws governing food products are primarily the Federal Food, Drug, and Cosmetic Act (FD&C Act) and the Fair Packaging and Labeling Act. The FD&C Act is a set of laws passed by Congress in 1938 to give the FDA oversight in ensuring the safety of food, drugs, and cosmetics. These laws regulate many aspects of the food industry, including food additives, food coloring, and even bottled water.

The Fair Packaging and Labeling Act applies to labels on most consumer products. Passed under President Lyndon B. Johnson in 1966, it requires a label to state: (1) the identity of the product; (2) name and place of business of the manufacturer, packer, or distributor; and (3) the net quantity of contents. The Act applies to products considered “consumer commodities” to prevent unfair or deceptive packaging and labeling.

The Nutrition Labeling and Education Act (NLEA), however, amended the FD&C Act and gave the FDA explicit authority to require food labeling on most food packages and nutrients listed on the nutrition label. The NLEA was passed in 1990 by President George H. W. Bush. Moreover, the NLEA requires that all nutrient content claims, like “low fat” or “high fiber,” comply with the FDA’s regulations. The NLEA does not apply to food served or sold in restaurants, nor does it apply to meat or poultry products, which are regulated by the United States Department of Agriculture. The FDA  proposed a variety of new amendments and regulations, with a few goals in mind: clearing up any sort of confusion surrounding nutrition and food labels, assisting consumers in choosing healthier products, and finally, giving food companies an incentive to improve nutritional qualities of their products.

Nutrient content claims can be found plastered all over food products and packages. Under the NLEA, the FDA regulates the definitions of  “free,” “low,” “light,” “reduced,” “less,” “high,” and many more. In developing the criteria for each of the claims, the FDA looked to dietary recommendations for each nutrient, analytical methods, distribution and abundance of particular nutrients in the food supply, and other considerations.

“Healthy” Food

The push to change the FDA’s definition of “healthy” came originally from the makers of Kind bars, which are granola bars containing many fruits and nuts. The product is currently marketed as “healthy and tasty.” The problem, however, is that the amount of fat contained in the bars is far too high to comply with the FDA’s low-fat restrictions on healthy food. In May of 2016, the company challenged the status quo when the FDA complained that the label “healthy” on Kind bars was improper based on the current definition.

“Kind Snack Bars” Image Courtesy of Mike Mozart : License (CC BY 2.0)

Currently, if a food product is to be labeled “healthy,” the product must be very low in fat according to the regulations. Essentially, it is a nutrient content claim, meaning the term can only be used on a product if it has certain nutritional qualities based on attributes like levels of fat and sodium. While the rules themselves are highly complex, it boils down to the fact that a snack food, for example, can have no more than three grams of fat per serving to be considered “healthy.” It also must contain at least ten percent of the recommended daily value for vitamin A, vitamin C, calcium, iron, protein, or fiber per RACC (Reference Amounts Customarily Consumed). The definition differs for individual foods, seafood/game meat, and a meal or main dish.

Thus, under the current definition, nuts–which have long been known to be a high-fat food–cannot qualify as “healthy” under the current FDA regulations. While nuts are high-calorie, they are full of healthy fats that are known to be good for preventing cardiovascular disease, maintaining mental health, and are now seen as an ideal source of protein.

The term “healthy” was originally defined in 1994, at the height of the fat-free craze. Americans started replacing high-fat foods with more processed foods that were full of refined sugar, but still touted as healthy because they were “low-fat.” It was difficult to navigate a grocery store aisle without seeing “low-fat” labels plastered proudly on a variety of products, even ones that a consumer would not even think to have a high-fat content. We now know that consuming massive quantities of other food products with additives, like sugar, has far more negative consequences than eating plant-based food sources teeming with healthy fats.

The Future of “Healthy

Critics of the current definition of “healthy” have valid points. Under the current regulations, Frosted Flakes may be labeled “healthy” as the product is low-fat and fortified with vitamins, which is counterintuitive to what Americans know to be healthy food choices. While the FDA is determining how best to redefine “healthy,” it has stated it will exercise discretion in how it enforces the current rules. Thus, the agency will not be taking action against food manufacturers, like Kind, who produce foods that don’t meet the exact definition, but are still low in total fat and contain at least ten percent of the recommended vitamin D and potassium. The FDA issued guidance in September to reflect its newfound discretion, as prior public participation was not deemed feasible or appropriate.

Dietary guidelines have been more quickly catching up to changing nutritional science. Earlier this year, the dietary guidelines for 2015-2020 and the Nutrition Facts label were updated to recommend that people eat food rich in healthful fats. Over the next few years, nutrition labels will be updated to more accurately and clearly reflect a serving size, as well as how much added sugar is in a particular product. After decades of nutrition labels remaining mostly the same, this is a significant step in addressing the obesity epidemic in the U.S., particularly since many citizens rely on nutrition labels to provide them with reliable information. A governmental study showed that 77 percent of American adults say they read labels on food packaging when they shop.

When imagining how the new definition of “healthy” could unfold, it is likely there will be a focus on sugar. Current evidence demonstrates a link between excessive sugar consumption and obesity. Additionally, the new definition will likely redefine fat intake, particularly encouraging responsible consumption of healthy fats from plants and omega-3 sources, like fish.

Conclusion

These proposed changes clearly show the FDA is finally attempting to follow significant nutrition science breakthroughs. Ideally, people would not need food labels to tell them how to eat more healthfully and would simply make smarter food choices, like limiting processed foods and eating loads of fruits and vegetables. Famed nutrition scientist Marion Nestle argues against food labels, stating that companies utilize them to make misleading claims about their products.

Currently, many Americans still rely heavily on food labels to provide them with information about how to eat more healthfully. For now, nutrition labels and dietary guidelines are here to stay, particularly as this country attempts to combat a widespread obesity epidemic. Moreover, “healthy” isn’t the only label that may receive a significant overhaul; the FDA is currently reviewing giving “natural“a legal definition after receiving roughly 7,600 comments on the term.

The public has the ability to comment on the FDA’s website right now to help shape the new definition of “healthy” for the future. The changes may not be implemented for some time, but having a concrete voice in the FDA’s future rules and definitions is an important thing to consider. The comment period started on September 28, and will remain open for the time being. You may submit electronic comments and information to the Regulations.gov website or mail in written comments to the address listed on the FDA’s website.

Resources

Primary

FDA: Food Labeling Guide

FDA: Nutritional Labeling and Education Act (NLEA) Requirements (8/94 – 2/95)

FDA: “Healthy” on Food Labeling

FDA: Guidance for Industry: Use of the Term “Healthy” in the Labeling of Human Food Products

NIH: History of Nutrition Labeling

NIH: FDA Regulatory Requirements for Nutrient Content Claims

Additional

NPR: Why The FDA is Re-Evaluating the Nutty Definition of ‘Healthy’ Food

Wall Street Journal: FDA Takes Step Toward New ‘Healthy’ Labeling

CNN: Your Food Labels are Getting a Makeover, FDA Announces

NPR: FDA Is Redefining the Term ‘Healthy’ on Food Labels

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post “Healthy” Food: FDA to Redefine the Term on Food Labels appeared first on Law Street.

For house hunters, there are many factors to consider when purchasing a new property. Natural light, open floor plans, and a big backyard may be on a potential buyer’s wish list. One thing that tends to top the list, however, is the quality of schools in the surrounding neighborhood. It’s commonly accepted by the real estate industry that higher quality schools translate to higher real estate values. The connection between school quality and property values is undeniable, with many studies confirming such a trend.

Fair housing advocates contend, however, that closely tying school rankings to property values has profound consequences. Many schools with lower rankings have a larger population of poor, minority students. Furthermore, the rise of online databases for house hunting, like Zillow, has allegedly increased illegal “steering” of people out of specific communities by prominently featuring school ratings online. Such advertisements and practices may be in violation of the Fair Housing Act.

Property Values and School Ratings

In a 2013 national study by realty brokerage company Redfin, people paid $50 more per square foot for homes in top-rated school districts. The study looked at 407,000 home sales and 11,000 elementary school districts in 57 metropolitan markets. Data was compiled from multiple listing services, as well as school characteristics and test scores from GreatSchools and Onboard Informatics.

“Markham suburbs aerial edit2” Courtesy of IDuke; License: (CC BY-SA 2.5)

Homes located near each other with the exact same square footage, number of bedrooms, and number of bathrooms can vary by tens of thousands to hundreds of thousands of dollars just because they are served by different schools. On the coast in California, for example, the price differential could be upwards of $300,000 to $500,000. Realtor.com recently completed a national study of homes within the boundaries of higher-rated public school districts versus homes in lower-ranked districts. The study uncovered that homes in the higher-ranked districts are 49 percent more expensive on average than the national median list price, and a whopping 77 percent more expensive than homes found within lower-ranked districts.

Real estate agents and industry advocates are quick to point out, however, that such research may not fully account for other factors that increase property values. Amenities such as a neighborhood swimming pool, “walkability,” and other physical improvements and facilities can drive home prices up, not just school ratings. It may be a critical consideration for families with children, but it is not the sole factor that increases property values.

“Steering” and Fair Housing Considerations

“Steering” is a process that influences a potential buyer’s choice of communities or neighborhoods on the basis of race, color, religion, gender, disability, familial status, or national origin. Not only is it unethical, but it limits the choices a potential buyer may have when purchasing a property. Steering was also made illegal under the Fair Housing Act.

The practice occurs when a real estate agent directs a prospective buyer interested in particular properties to equivalent homes in a specific neighborhood or community based on one of the protected characteristics. A real estate agent can “steer” clients by making positive or negative comments about a neighborhood, which can direct a buyer toward or away from a community. This can especially be an issue when it comes to prospective buyers’ questions about schools. Oftentimes characterizations such as “a school with low test scores” or “declining school district” may be used as coded language to talk about race. The advocacy group National Fair Housing Alliance found in a 2006 report that discussing school quality was becoming a proxy for discussing the racial or ethnic composition of a neighborhood.

The achievement gaps between white students and black and Hispanic students are massive and well-documented; the larger the socioeconomic disparity, the larger the achievement gap. Moreover, black and Hispanic students are far more likely to grow up in poorer households, but middle-class black and Hispanic students are more likely than poor white children to attend schools with a higher percentage of poor students. Less qualified teachers, large learning gaps, and lower standardized test scores all translate into one thing–a lower school rating.

The National Association of Realtors even notes that innocent conversations regarding school quality may create an FHA issue. Touting the accolades of a school in one district, while remaining silent on another school may be alluding to a racial distinction that steers prospective buyers out of one neighborhood and into a different one. Realtors must be extremely cautious in accommodating buyers’ preferences during the housing search without purposefully limiting their choices.

Rise of Online Databases and Redlining

In the past, fair housing laws covered statements and advertisements by real estate agencies and landlords. The rise and proliferation of the internet, however, has encouraged the growth of another form of house hunting: research in online databases. While there is a myriad of choices, some of the most popular ones are Zillow, Homes.com, and Redfin.

When a potential buyer is looking at a particular property on one of these sites, a link to a local school rating is prominently featured. With just a click of the mouse, the racial and ethnic composition of a school is unveiled, and the sites feature a color-coded system for the school rating: green, yellow, and red.

Such a system is reminiscent of “redlining,” a practice where maps showed communities with minorities in a red shade, denoting where financial investments were denied and systematically withheld from borrowers. After the Great Depression, the U.S. government wanted to evaluate the riskiness of mortgages with the help of local realtors and appraisers. Neighborhoods with minority residents were consistently marked red, considered high-risk for any mortgage lender. The practice was so extreme that a single black household in a middle-class neighborhood could make the entire area too risky for mortgage loans. Without access to better mortgages, black families looking to buy homes were forced to turn to predatory lenders. Redlining is now banned, but it has left behind racism and segregation that still shapes housing today in cities large and small. 

Most of the time the school ratings are based on one or very few factors, usually aggregate standardized test scores. Test scores are consistently disparate along socioeconomic lines, and it is well established that minority students are more likely than their white counterparts to live in poverty and go to school in poorer districts. Thus, such a one-dimensional view of a school’s performance, along with using a factor that is racially biased, seems to be a significant issue when displaying this information prominently on a house hunting website.

Modern Day “Steering?”

House hunting online has only become more popular in recent years. A joint study conducted by the National Association of Realtors and Google unveiled that 90 percent of home buyers searched online during their home buying process. Furthermore, the study found that 89 percent of new home shoppers used a mobile search engine at the onset and throughout their house hunting research. Currently, fair housing laws only affect those who sell housing, which are landlords and real estate agents. The laws do not appear to assign any sort of liability to websites, which are now being utilized across the country at a rapid rate.

Katie Curnutte, vice president of communications at Zillow, contends that these school ratings merely serve as a starting point for potential buyers to do further research and to connect with real estate agents. If the information provided is just neutral, it is difficult to argue that there is discriminatory intent. The color coding system in conjunction with readily accessible demographic data, however, could be a 21st-century form of “steering.” Given the popularity of online resources, resolving these issues to help combat housing segregation is of critical importance.

Conclusion

The rise of web platforms for home buying may be exacerbating a persistent issue in the fight for fair housing. Many advocates consider online databases with easily accessible school rating numbers to be part of a “legal gray area,” one with very little oversight. Moreover, it is apparent that housing and schools ratings are stuck in a cycle–encouraging housing patterns that maintain racial segregation, particularly through school budgets. The use of a color coding system by a website for local school districts–with green denoting “good” and red denoting “bad”–may be just as damaging as a casual conversation with a real estate agent steering people to live in certain communities.

It is no surprise that prospective homeowners have many concerns when it comes to purchasing a new property. It is one of the largest and most intimate investments a person can make. Home buyers with children in the public school system certainly have a right to be concerned about school quality. Striking a balance between honest information and activities that do not violate the FHA is imperative to ending housing discrimination and segregation. Moreover, drafting straightforward legislation to regulate house hunting websites and databases is the next step to ensuring the FHA remains applicable in the 21st century.

Resources

Primary

National Fair Housing Alliance: Unequal Opportunity–Perpetuating Housing Segregation in America

National Association of Realtors: The Digital House Hunt: Consumer and Market Trends in Real Estate

Additional

New York Times: Money, Race, and Success: How Your School District Compares

The Atlantic: The Concentration of Poverty in American Schools

NPR: Race, School Ratings and Real Estate: A ‘Legal Gray Area’

NPR: Interactive Redlining Map Zooms In On America’s History Of Discrimination

Realtor.com: Review of Housing Insights in Top Rated School Districts

National Association of Realtors: Steering, Schools, and Equal Professional Service

Washington Post: School Quality is Tied to Home Prices in New Study. But Other Factors May Affect Values

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post School Quality and Property Values: Perpetuating Housing Segregation? appeared first on Law Street.

In the last few decades, highly publicized school shootings at places like Columbine and Sandy Hook, as well as a trend of violence on college campuses across the nation, have led to the proliferation of school surveillance techniques. Since these cases of violence have targeted specific schools, one would imagine that the strictest surveillance techniques would exist in schools with a history of violence.

That is not actually the case according to new research from Jason P. Nance, an associate professor of law at the University of Florida. He discovered that while there has been a stark increase in school surveillance in recent years, the practice was not applied equally across all schools. In fact, schools with a preponderance of students of color were more likely to have harsh surveillance practices, including metal detectors, locked gates, school police, and random sweeps.

 Current Trends in School Surveillance

The 1990s saw a rise in concerns about drug and gang-related violence, leading to an increase in integrating police–or “school resource officers”–and other surveillance technology into schools. These fears were later exacerbated by the high-profile shooting at Columbine High School in 1999, where two seniors murdered 12 students and one teacher before both committing suicide–billed then as “the deadliest high school shooting in US history.” Over the years, schools have compensated with an increase in strict punitive measures and “zero tolerance” policies, which require schools to hand out specific, harsh punishments like suspension or expulsion when students break particular rules. Additionally, surveillance systems designed to track and monitor students’ movements and specific behaviors are being implemented and utilized more than ever before.

In the first analysis of its type ever conducted, Jason P. Nance, of the University of Florida Levin College of Law, found a clear and consistent pattern in how surveillance techniques were applied to schools nationally. Nance gained authorization access to a restricted database from the U.S. Department of Education–the School Survey on Crime and Safety conducted from 2009-10 and 2013-14–and was able to examine surveillance techniques pre- and post- the Sandy Hook school shooting. Even after controlling for a variety of factors such as school crime, neighborhood crime, school disciplinary and behavioral problems, and other student demographics, Nance’s research found that the concentration of students of color was a predictor in whether or not the schools had more intense security techniques.

Additionally, Nance investigated the major, student-caused instances of violence in the last 25 years using informations from a CNN archive and federal data on demographics of the particularly relevant schools. The overwhelming majority, roughly 62 percent, of incidence of major violence in schools occurred in ones that serve mostly white students. Such findings demonstrate a much greater problem in racial inequalities in the public educational system. Nance noted that systemic racial disparities exist in special-education placements, gifted-and-talented programs, and teacher expectations of academic success, with African Americans experiencing the highest educational inequalities.

Criminalizing Student Behavior

The act of arresting schoolchildren and treating them as if they are violent criminals has become a disturbing trend in schools across the country. With the constant surveillance tactics employed, whether it be drug sniffing dogs, police officers, random searches, or high-resolution security cameras, schools are arguably a burgeoning police state, one that is being controlled and directed. Police patrol many school hallways across the nation, making even normal childhood behavior seem criminal. In 2010, police gave close to 300,000 Class C misdemeanor tickets to students in Texas. There were also reports of a student with an IQ below 70 being pepper sprayed because he did not understand police instructions. Moreover, an incident in Columbia, South Carolina went viral in the fall of 2015 when a student refused to hand over her cellphone, resulting in the school deputy wrestling her out of her chair and hurling her across the classroom floor. The student who filmed and posted the events was eventually arrested. All of these examples illustrate a disturbing trend.

Such arrests are not uncommon in the state of North Carolina, where roughly 1,200 students are charged each year with “disturbing school.” The state law, which makes it a crime to “disturb in any way or in any place the students or teachers of any school” or “to act in an obnoxious manner,” carries a jail sentence of up to 90 days or a $1,000 fine. The charge has been used against students as young as age seven. Currently, at least 22 states and many cities have such a law, though the degree of stringency varies greatly from state to state. Moreover, in South Carolina black students are four times more likely to be charged with disturbing school than their white peers. Defiance is an integral part of adolescence, but placing students in jail for swearing or refusing to comply with an adult’s request turns normal child behavior into delinquent behavior.

Many advocates contend that such disturbing school laws were implemented once black students were allowed to integrate into white classrooms, as a way of maintaining informal segregation under the guise of “law and order.” Once students are arrested, their ability to achieve at the same level is greatly diminished. According to a 2006 study by criminologist Gary Sweeten, students who have been arrested are nearly twice as likely to drop out of school even if they never go to court–regardless of GPA or prior offenses–and students who actually go to court are four times more likely to drop out. Considering the profound consequences such an event can have on a child’s future, it seems a law and order focus may be doing more damage than good.

Monitoring and Tracking Students

Another extreme method schools are utilizing to monitor students is Radio Frequency Identification (RFID). RFID, which is often used to identify and monitor livestock and other animals, uses tags and readers to monitor when students check out library books, register for classes, or even pay for school lunches. States such as Missouri, California, and Texas have utilized the technology through experimental pilot programs in some manner or another, such as door access on school buses or embedding the chips in student clothing. While its use was eventually squashed by parents and the American Civil Liberties Union in state of Texas, technology similar to RFID is still alive and well in other states. Other experimental programs have even utilized cameras to track and monitor students’ eating habits in an effort to mitigate childhood obesity. Some schools have even used wristwatches that monitor students’ heart rate, physical movement, and sleeping habits.

Big Brother entering the classroom brings up valid concerns; are we simply conditioning students to believe that tracking them is completely normal, acceptable, and even mandatory? In a world of consumerism and behaviorism, students, workers, shoppers, and voters are all seen in the same manner: passive, conditionable objects. Such practices may infringe heavily on due process rights, treating citizens as compliant subjects in a surveillance state.

Courtesy of [Daniel R. Blum via Flickr]

When School Becomes Jail

Schools have been struggling to find the ideal balance when creating a safe, supportive, and secure learning environment in recent years. Chicago Public Schools, for example, approved high-definition surveillance camera installation in 14 schools in 2011 for a $7 million price tag, despite being significantly cash-strapped at the time. After a pilot test at a high school, Chicago Public Schools stated that misconduct dropped 59 percent, arrests dropped by 69 percent, and drop-out rates decreased. The approval ended up coming in $200,000 under budget, but it certainly illustrates the trends Nance is studying.

Strict surveillance practices are firmly in place in the Los Angeles public school system, where random screenings using metal detector wands are employed in all secondary schools, grades 6-12. This program has been in place for more than two decades and also includes daily random locker searches, but it has recently come under fire from teachers, civil rights groups, and educational organizations. In schools with no history of violence, it seems to be counterintuitive to employ such stringent tactics in the name of safety. According to a review in 2011 of all available literature from the past 15 years regarding the use of metal detectors in schools, there is insufficient evidence to prove that the use of metal detectors had any positive influence on student behavior and school environments. In New York City, some public schools with metal detectors cannot even get students through the screening process in time for the start of school.

Despite claims of limited efficacy, metal detectors and surveillance techniques still have their champions. The Chief of Police for the Boston Public Schools Eric Weston noted in 2015 that metal detectors changed things by helping to keep firearms out of schools and reducing the number of weapons found on campus. While acknowledging the potential psychological toll constant use of metal detectors may create, Weston believes that overall the use of them makes students feel safer. Moreover, the public response after a highly publicized, violent school incident, is to increase security measures in schools to prevent such an atrocity from occurring again.

 Efficacy of Surveillance Techniques

While some may champion police presence in schools and the use of surveillance systems like metal detectors, such techniques are not without critics. The effects of such severe practices on student psyche is stark. When compared to a school with no metal detectors, students at a school with metal detectors feel and understand that the general public views them as criminals automatically. Evidence also shows that when students are in such harsh environments, academic performance and positive school climates do not necessarily increase. An over-reliance on security measures diminishes students’ feelings of trust and safety; when students are subjected to punitive tactics in school, the likelihood that students feel comfortable being there decreases significantly. Moreover, science has also demonstrated in recent years that a teenager’s brain, for example, is far more receptive to rewards than to punishment, and sections of the brain that control impulses and judgment are still a work-in-progress.

The result is a continued criminalization of certain types of students, namely students of color. For example, in Texas, when looking at clear-cut offenses like the use of a weapon, African American students were no more likely to get in trouble than other students; however, when it came to subjective “disturbing school” offenses, they were far more likely to be disciplined. After controlling for over 80 variables, race was a reliable predictor of which students were disciplined.

Even when there is little to no evidence to demonstrate that such practices actually create environments where students can thrive, cities, states, and the federal government continue to invest in such programs. Bringing in police officers and placing youth under constant surveillance with little to no privacy creates an institution that feels more like a prison than a welcoming educational environment. Advocates note that these practices are likely creating criminals, rather than productive, healthy citizens.

Conclusion

Educators are quick to note that combating violence in schools and deterring weapons starts from the root; students have to feel safe at school. Relying on surveillance tactics and punitive measures to enforce discipline creates an environment based on fear, not mutual respect. Investing in student relations should be as much as a priority as investing in high-definition security cameras. As Nance noted in his research, these stringent surveillance practices are sending students a very clear message: white students deserve more privacy and leeway than nonwhite students. It’s critical to ensure students are safe, but practices such as these may merely exacerbate the significant racial tensions plaguing the nation rather than helping to rectify violence in schools.

Resources

Primary

UF Levin College of  Law University of Florida: Student Surveillance , Racial Inequalities, and Implicit Racial Bias

Journal of School Health: Impacts of Metal Detector Use in Schools: Insights From 15 Years of Research

National Education Association: Alternatives to Zero Tolerance Policies

Additional

The Atlantic: When School Feels Like Prison

Huffington Post: Are America’s Schools Breeding Grounds for Compliant Citizens?

The Atlantic: How America Outlawed Adolescence

The Guardian: The US Schools With Their Own Police

The Journal: Missouri District Pilots RFID Door and School Bus Access

Wired: Tracking School Children With RFID Tags? It’s All About The Benjamins

Salon.com: Big Brother Invades Our Classrooms

Christian Science Monitor: A Backlash Against Los Angeles Schools as High-Security Fortresses

ABC 7: HD Security Cameras Installed at 14 CPS Schools

MASSLIVE: Metal Detectors in Schools: Boston’s Success Story

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post Big Brother Watching?: Current Trends in School Surveillance appeared first on Law Street.

When introducing a new drug into the consumer marketplace, companies must undergo a rigorous testing and approval process from the Food and Drug Administration (FDA). After a company obtains promising lab results, applications are then submitted to the FDA to implement clinical trials. Clinical trials can last for years before a new drug application (NDA) is submitted to the FDA for approval. To speed up this lengthy process, an initiative was passed in 2007 by Congress under the Food and Drug Administration Amendments Act (FDAA) that contained a special section for priority review vouchers. Drugs for specific tropical diseases and rare pediatric disorders are eligible for such a voucher.

Priority review vouchers allow a company to fast-track government review for a particular drug. These “golden tickets” can be extremely valuable for drug companies, since the difference in drug approval can be as long as seven months. Companies also have the option to sell the vouchers to the highest bidder; since vouchers do not expire, they can then be sold an unlimited amount of times. While this valuable program may incentivize the creation of drugs for problematic diseases and disorders, it has also been met with its critics who state the program is ineffective and simplifies complex issues.

Evolution of Priority Review Vouchers

The development of a new drug is an extremely long and cost intensive process. Drugs tend to be in the preclinical and discovery state for one to six years, and then enter the clinical phase for about six to eleven years before finally reaching the FDA for review. Normally, FDA drug review takes ten or more months, but can be upwards of two years before a drug is approved for the market.

The priority review voucher program was first introduced in a paper in March 2006, published in the Health Affairs journal, from a team of researchers at Duke University. In “Developing Drugs for Developing Countries,” the authors advocated for a priority review system, as there were no sufficient incentives for companies to produce drugs for neglected tropical diseases. The “prize” could either be redeemed by the recipient or sold to another company for use. The voucher does not guarantee approval by the FDA, but it does guarantee that a drug will be reviewed and have a decision rendered within six months in conjunction with the NDA.

In 2007,  the priority review voucher system became a reality when Congress passed the FDAA, which contained the provision “Priority Review to Encourage Treatments for Tropical Diseases” in Section 1102. Any drug intended to treat a number of diseases including: malaria, cholera, tuberculosis, and leprosy, among many others, was eligible to receive a priority voucher. These diseases were chosen because they tend to occur in poorer and developing countries that lack adequate market incentives to invest and develop treatments for “neglected tropical diseases” (NTD). As of April 19, 2016, Zika was also added to the list of tropical disease eligible to receive a priority review voucher.

Expansion of the Program

In 2012, the the priority review voucher program was expanded to include rare pediatric diseases. Under the Food and Drug Administration Safety and Innovation Act (FDASIA), Congress approved the voucher for additional therapies for rare pediatric subsets of other diseases. Section 908 of FDASIA has defined a “rare pediatric disease” as one which “primarily affects individuals aged from birth to 18 years, including age groups often called neonates, infants, children, and adolescents.” It is also a rare disease according to federal statute, meaning it affects 200,000 persons in the U.S. or fewer.

The expansion of the voucher system to rare pediatric diseases included some key differences. While modeled after the tropical diseases voucher, the rare pediatric voucher was much easier to use. For a tropical voucher, the FDA had to be notified 365 days prior to its use, while the rare pediatric voucher had a 90-day time frame. Moreover, the rare pediatric voucher was eligible to be sold an unlimited amount of times, while the tropical disease voucher could be sold only once.

In December of 2014, the stark differences were eliminated between the two vouchers under the law Adding Ebola to the FDA Priority Review Voucher Program Act. Now tropical vouchers may be sold an unlimited number of times and may be redeemed in just 90 days. Currently, the cost of the voucher fee for 2016 is $2.7 million, in addition to the NDA feed of $2.4 million.

Vouchers Awarded and Used

To win a voucher, a company requests a priority review designation from the FDA, which determines if the drug is significant enough to treat a particular condition. Once the FDA awards a company priority review designation, it will take another six months to determine if the drug should be awarded a priority review voucher. If a company receives or purchases a priority review voucher, it is then able to inform the FDA of its intent to use the voucher on an upcoming submission. The FDA will have the option to accept the voucher and agree to review the drug and come to a decision within six months.

Currently, the FDA has awarded nine vouchers–six for rare pediatric diseases and three for tropical diseases. Drugs for the NTDs malaria, tuberculosis, and leishmaniasis were awarded vouchers, as well as the drugs for the following pediatric diseases: Morquio A syndrome, high-risk neuroblastoma, rare bile acid synthesis disorders, hereditary orotic aciduria, hypophosphatasia, and lysosomal acid lipase deficiency.

Interestingly enough, five of the vouchers awarded have remained unused. Five of them were either transferred or sold, and to date, only four vouchers have been used. In total, two of the vouchers used have resulted in FDA approval, one has been rejected, and one is still in review.

The money these vouchers have been able to generate in the market has been staggering. BioMarin’s voucher from 2014, the first ever to be sold, was purchased for $67 million. Subsequent vouchers sold fetched even higher prices, with the most recent voucher sold in August 2015 by AbbVie, who paired $350 million for a voucher original awarded to United Therapeutics.

Efficacy of Priority Review Vouchers

Recently, priority review vouchers have come under fire for not necessarily incentivizing development in the areas the program was designed to assist, namely NTDs.  A few articles have emerged lambasting the use of priority review vouchers, denying that they are stimulating any sort of drug innovation and development.

For example,  the first priority review voucher was awarded to Novartis’ anti-malarial drug Coartem; however, the drug was widely used around the globe for almost a decade before the FDA approval. Thus, awarding a priority review voucher for this drug does not necessarily create an incentive for new drug innovation. Instead, it is merely a large sum of money that does not encourage new research and development. Moreover, Impavido, a treatment for leishmaniasis created by Knight Therapeutics, was largely developed by the World Health Organization and other partners back in the 1990s and approved in 14 countries before 2010.

This seems to be indicative of a loophole for pharmaceutical companies, one in which older drugs are are registered in order to obtain a highly valuable voucher. At least for NTDs, exploitive practices by companies appear to be the norm, most recently illustrated by KaloBios’ attempt to obtain a voucher for a widely used drug to treat Chagas’ disease after acquiring the rights to the drug from another company.

As for rare pediatric diseases, the U.S. Government Accountability Office has recently stated that it is still too early to determine whether the voucher program is working. The six drugs awarded vouchers were already in development before the program’s expansion in 2012. It is quite possible that drugs would have been approved without a voucher in the first place, and they were not developed with the incentive of a priority review voucher as the ultimate goal.

Other Concerns

Recent papers published earlier this year in an issue of Health Affairs note even more concerns with the priority review vouchers, as well as ways to strengthen the program. The availability and affordability of the drugs in the program are also a concern; after garnering a priority review voucher, there is no requirement that the drug be affordable or accessible. Global health advocates even requested that Sirturo, a tuberculosis drug awarded a voucher, be made more affordable for lower income families in areas where the disease exists the most.

The FDA has qualms that the voucher program is diverting resources away from other drugs still in review. The timelines between standard drugs and priority review voucher drugs differ substantially. By compressing the time frame significantly in which a drug must be reviewed, the FDA experiences more strain in trying to find qualified staff. Additionally, the drugs reviewed may be highly complex, which does raise some safety concerns.

Another significant concern is that the priority review voucher ignores a new drug’s actual utility, focusing only on a new drug’s ingredients. An effective drug that needs to be taken multiple times a day, something highly resource-intensive in developing countries, would be given priority over a following drug that was more sustainable from a cost and resource standpoint. Furthermore, drugs with little or no urgency may be able to have an accelerated review and approval, while drugs desperately needed on a much smaller timeline may have to wait years.

Conclusion

The lucrative nature of priority review vouchers is undeniable. The prize of a voucher means a swift path to a final FDA decision, which can put a company far ahead of the competition. Since the vouchers can then be sold an unlimited amount of times, the amount of money generated for already well-endowed pharmaceutical companies indicates that the program may need substantial review and an intensive overhaul. It may be critical to strengthen the qualifying criteria for obtaining a priority review vouchers to encourage new drug development or perhaps fixing the quantity of vouchers that can be available or redeemable at any given time.

The purpose of such a program is noble; for long-forgotten corners of the world, incentivizing the creation of drugs to combat and manage devastating diseases can be the difference between life and death. However, ensuring the drugs are not only new, but also accessible and affordable to those affected by severe diseases is of the utmost importance.

Resources

Primary

FDA: Development & Approval Process (Drugs)

U.S. Government Accountability Office: Rare Diseases: Too Early to Gauge Effectiveness of FDA’s Pediatric Voucher Program

Congress.gov: S.2512 – Adding Zika Virus to the FDA Priority Review Voucher Program Act

Additional

NPR: Are Golden Tickets That Speed Drugs Through FDA Worthwhile?

PriorityReviewVoucher.org

Regulatory Affairs Professeionals Society: Regulatory Explainer: Everything You Need to Know About FDA’s Priority Review Vouchers

Health Affairs Blog: Are Priority Review Vouchers The Answer To Incentivize Drug Development? Not So Fast.

Health Affairs: Prescription Drugs, Global Health & More

OxFam International: Robbing the Poor to Pay the Rich–Novartis’ Christmas Gift to Itself!

MarketWatch: KaloBios Approved for Chagas Disease Drug Deal

Aids-Free World: Open Letter: Reducing the Price of Bedaquiline

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post FDA Priority Review Vouchers: Golden Tickets or Inefficient Incentives? appeared first on Law Street.

Affordable, safe housing is a huge concern for all populations. Traditionally, neighborhoods have been segregated along socioeconomic lines. However, even in modern cities, policy attempts to integrate communities through equal access housing have failed. Housing lotteries, through neighborhood preference programs, are now being employed by cities across the country to keep families in their neighborhoods.

Unfortunately, those same lotteries are meeting a pushback from the Department of Housing and Urban Development (HUD), which has stated that neighborhood preference and housing lotteries violate federal fair housing laws. In an interesting turn of events, the populations that fair housing laws are designed to protect are now being utilized to keep them out of their home neighborhoods. This comes as a surprise to many supporters of these anti-displacement programs, as the legislation was created to assist victims of segregation, not perpetuate it.

Federal Fair Housing Laws

In 1968, shortly after the assassination of Dr. Martin Luther King, Jr., Congress passed the Fair Housing Act (FHA) in response to concerns about racial segregation. The statute sought to address the issues created by residential segregation, while moving cities and towns away from unequal housing and economic conditions. It was initially enacted under Title VIII of the Civil Rights Act of 1968 and then ultimately codified under 42 U.S.C. §3601-3619. A 1968 Supreme Court ruling, Jones v. Alfred H. Mayer Co., held that the Civil Rights Act of 1968 prohibits racial discrimination by private and governmental housing providers. These policies established a framework for eradicating segregated housing.

Under the FHA it is unlawful to “refuse to sell or rent […] or otherwise make unavailable or deny, a dwelling to a person because of race, color, religion, sex, familial status, or national origin” or “to discriminate against any person in” making certain real-estate transactions “because of race, color, religion, sex, handicap, familial status, or national origin.”  Since the passage of the FHA in 1968, many cities have become more diverse. The FHA plays an integral part in avoiding the Kerner Commission’s grim prophecy that the “nation is moving toward two societies, one black, one white–separate and unequal.” The Act was later amended in 1988 to create certain exemptions from liability and expanded protected characteristics, including discrimination on the basis of disability or families with children.

“Fair housing protest, 1964” Courtesy of [Seattle Municipal Archives via Flickr]

Equal Housing and Discrimination

Problems regarding fair housing and discrimination are pervasive in communities across the country. HUD estimates that there are roughly two million cases of housing discrimination annually, but the actual number may be much larger. Many cases of housing discrimination are not reported. Moreover, studies conducted by HUD show that many residents are unaware of what activities are illegal under the FHA.

Despite all of the efforts to diminish segregation and discrimination in housing access, very little progress has occurred nationally. While the country has become more diverse than ever, residential housing patterns remain stagnant. Even with the passage of the FHA and the expansion of state laws protecting residents from housing discrimination, improvements in socioeconomic and racial seclusion have made few advances.

What is Gentrification?

No matter where one travels, there are segregated neighborhoods all over the U.S., particularly in metropolitan areas. Gentrification, or the arrival of  wealthier people in an existing urban district, has become common practice. This causes a litany of problems for the current residents of that community, including increased rents and property values, in addition to drastic changes to the community’s culture.

Researchers have been quick to note that the practice of gentrification is not inherently bad. Seeing a neighborhood with decreased crime, new investments, and increased economic activity are desirable, positive traits for any community. Conflicts occur because usually wealthier, white populations are given significant credit for “improving” neighborhoods, while simultaneously displacing poor, minority residents.

Gentrification has some common characteristics, though there is no technical definition for it. First, there is a change in demographics, leading to an increase in median income, decrease in household size, and a decline in racial minorities. Second, the real estate markets transform, increasing property values and the number of evictions. Third, there is a shift in land use, usually a decrease in industrial uses and an increase in offices, high-end retail, and restaurants. Lastly, a variety of character and cultural attributes change, such as landscaping, public behavior, noise, and nuisance.

Neighborhood and Community Preference

Many cities are facing serious roadblocks for making affordable housing available to low-income and middle-class residents. As property and rent increases, the ability of certain families to stay in a particular neighborhood decreases. Thousands of minority populations are being displaced by gentrification across the country. To combat this growing problem, some cities, like San Francisco, have tried to utilize neighborhood preference and housing lotteries.

Essentially, the program allows current residents to participate in a lottery for affordable housing units partially financed by the federal government. This gives those who currently live in a neighborhood a preference, a right of first refusal. Rights of first refusal are contractual rights that give a particular person or business entity the opportunity to enter into a transaction before a third party. Participants must still compete against other residents, but they have a better chance of remaining in their home neighborhood. In San Francisco, this meant setting aside 40 percent of units in subsidized developments for residents already living in the district or a half mile away. This would allows residents first dibs at living in the brand-new, partially federally-financed building.

Why Does Neighborhood Preference Violate Fair Housing Laws?

While neighborhood preference can be viewed as a noble program, it technically violates HUD’s fair housing laws. The fact that laws designed to assist minority populations are now being used to not keep them in their home neighborhoods creates an extreme incongruity. By employing neighborhood preference, HUD states that it actually maintains segregation rather than eradicating it and limits equal access to housing.

The main issue with these programs is that they give a priority to those already living in a particular district. In these specific areas, residents tend to be low-income minorities. Allowing those residents a preference continues to segregate neighborhoods. It also allows race to be an integral factor in the process, as the effect of allowing current residents to have a preference means that black tenants are more likely to receive the new units.

HUD noted via a spokesperson that the agency takes great care when reviewing programs that have noble intentions but end up with negative consequences. However, it was also noted that there was no record of HUD ever approving a neighborhood preference program.

San Francisco is not the only city experiencing these roadblocks in assisting low-income residents. In New York, a fair housing group has filed suit alleging that the city’s policy of using community preferences for affordable housing units perpetuates segregation. The pattern is national, with urban neighborhoods becoming increasingly whiter and more affluent.

Conclusion

While there are many positive aspects to transforming a neighborhood, the social, economic, and physical impacts of some changes may have negative consequences for current residents. Federal fair housing laws exist to eliminate segregated neighborhoods, but often come at a cost to current residents. The laws designed specifically to protect certain classes of citizens are now being utilized to push those same people out of their homes.

On September 22, 2016, HUD came back with a different answer after placing the San Francisco program under review. In a letter to the mayor, HUD decided that while the city cannot give priority to neighborhood residents for spaces in affordable housing projects, it will allow 40 percent of the units to be prioritized for residents who are at a high risk of displacement. Race will not be a factor for consideration in the selection process. This announcement immediately affects the Willie B. Kennedy senior apartment complex, which has roughly 98 units and more than 6,000 applicants. The lottery for this particular property had been delayed pending HUD’s decision.

This change demonstrates HUD’s willingness to acknowledge the serious consequences of displacement. It may not be the most ideal way to combat issues of equal access, but it certainly shows a sensitivity to keeping citizens in their neighborhoods. While neighborhood preference programs are out, it seems that “anti-displacement” preference programs are in.

Resources

Primary

U.S. Department of Housing and Urban Development: Fair Housing and Equal Opportunity

The Kerner Commission: Report of the National Advisory Commission on Civil Disorders

Legal Information Institute: Fair Housing Act

Additional

NPR: How ‘Equal Access’ Is Helping Drive Black Renters Out Of Their Neighborhood

PBS: What is Gentrification?

CivilRights.Org: Fair Housing Laws

SF Gate: Federal Agency OKs Preferences at New SF senior Housing Complex

Investopedia: Right of First Refusal

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post Equal Access?: Neighborhood Preference and Housing Lotteries appeared first on Law Street.

With the United States locking up more people every year, prison reform is a topic of national concern. The impacts of mass incarceration on communities and families have become an epidemic, one with lasting consequences. Jails are overcrowded–filled to the brim with non-violent offenders–even as rates for more serious crimes have declined. The number of women in jail is growing at a faster rate than men, according to a new report published by the Vera Institute for Justice and the Safety and Justice Challenge. Entitled “Overlooked: Women and Jail in an Era of Reform,” the research is unique and necessary, as most of the existing information on the criminal justice system focuses specifically on men.

HISTORY OF WOMEN BEHIND BARS

Jails are confinement facilities, run by counties or municipalities that hold people accused of a crime while they await case resolution. Over the past forty years, the number of people behind bars in the U.S. has increased five-fold. On any given day in 1970, there were 157,000 people in jail; in 2014, that number rose to 745,000. Now there are more than 11 million admissions annually. Jails have been transformed from housing extremely dangerous individuals to keeping those too poor to post bail or too sick for assistance in the jail system. Life challenges such as unemployment, extreme poverty, physical and behavioral struggles, substance abuse, and mental health issues plague many women in jail.

Around 1970, there were only 8,000 women in the jail system. Now, with nearly 110,000 women behind bars, they are the fastest-growing incarcerated population in the U.S. Women are now held in jails in nearly every county in the country, in stark contrast to 1970 when roughly three-quarters of counties held not a single woman in jail. Women can find themselves involved with the criminal justice system because of poverty, mental and behavioral health issues, substance abuse, or a history of trauma.

The majority of women behind bars are there for non-violent crimes, which amounts to roughly 82 percent according to the last batch of national data from nearly a decade ago. A survey from Davidson County, Tennessee revealed that 77 percent of women in the jails were charged with a misdemeanor. Moreover, women are not necessarily committing new offenses. More recent research has found that women are more likely to be in jail for breaking a condition of supervision in the community, like failing a drug test or missing an appointment with a probation or parole officer.

GEOGRAPHIC INCREASES

Small counties, with less than 250,000 people, are seeing the largest increase in jailed women. In 1970, these same counties had just 1,700 incarcerated women compared to 51,600 by 2014. Sparsely populated counties see an incarceration rate of 140 per 100,000 women. Using 2014 data, the Vera Institute found that on a typical day large counties had an average of 271 inmates per 100,000 people versus 446 inmates in rural counties. 

This is in stark contrast to another trend, which shows a declining rate of incarcerated women in the nation’s largest counties. The trend is illustrated in counties like Stokes County, North Carolina, where women made up 32 percent of the jailed population in 2013, far beyond the national average. Data is still unclear as to why jail populations have increased so significantly in rural areas. Research notes that it could be the demographics of rural and suburban areas, which tend to house poorer populations.

“Handcuffs” Courtesy of [davitydave via Flickr]

PREVALENCE OF HEALTH ISSUES IN INCARCERATED WOMEN

Research has also noted that a number of women behind bars suffer from health issues, particularly mental illness. Thirty-two percent of women in U.S. jails have a serious mental illness, including major depression, bipolar disorder, and schizophrenia. According to the Bureau of Justice Statistics, 75 percent of women in jails stated they had symptoms of a mental health disorder in the past year. This high percentage of serious mental illnesses among incarcerated women is intimately tied to the high rates of victimization reported: sexual assault, intimate partner violence, and childhood sexual abuse. The numbers are startling. Based on the research among women in jail, 86 percent report experiencing sexual violence, 77 percent report partner violence, and 60 percent report caregiver violence.

The complexity of mental illness means many incarcerated women are unable to receive effective assistance. One in five women in U.S. jails has experienced a serious mental illness, post-traumatic stress disorder, and substance abuse disorder. This staggering number is met only with limited mental health care professionals and resources in the jail system. With a distinct lack of proper tools and support systems, many incarcerated women never have their severe mental health issues addressed.

WOMEN OF COLOR IN JAIL

For both men and women, people of color are disproportionately incarcerated. According to the most recent national data, roughly two-thirds of women currently behind bars are women of color. Forty-four percent were black, 15 percent were Hispanic, and five percent were of other racial and ethnic backgrounds, with only 36 percent of incarcerated women identifying as white. At a county level, the racial and ethnic disparities are even larger. In Cook County, Illinois, approximately 81 percent of women admitted in the jails were women of color.

Women of color are far more likely to experience financial instability and crisis, even before they enter a jail. Nearly half of all single black and Hispanic women have zero or negative net wealth, with black women five times more likely to live in poverty and receive public assistance. Staying in jail for even a short period of time can severely impact their basic survival needs, like suspension or even termination of public assistance.

INCARCERATION IMPACTS ON WOMEN

Women are heavily affected by jail, as the environment is often not designed for their specific needs and experiences. Women are assessed with the same assessment tools for men to determine where and how they are housed within facilities. Using a gender-neutral or male-focused tool ignores the research that shows women tend to pose less risk than men. As a result, the tools can classify women at a higher risk than they actually are, with over-classification barring them from educational, vocational, and rehabilitative programs.

Reproductive health needs are also a crucial issue for incarcerated women. Many jails fail to even meet basic hygiene needs for women. Muskegon County Jail was sued in 2014 by the ACLU of Michigan for failing to provide women menstrual hygiene products, toilet paper, and clean underwear. Other women in jails have reported being unable to receive hygiene products on a certain day because they are unavailable or only provided selectively. The health risks and emotional humiliation these policies create have caused some positive policy changes, like efforts to make free supplies readily available to incarcerated women.

WHAT DRIVES THIS GROWTH?

Shifts in police policy and enforcement over the decades contributed to a rising number of arrests of women. One particular policy departments embraced was “broken windows” policing; this policing theory focuses on low-level offenses like petty theft, loitering, and intoxication as a way to prevent more serious crimes. Moreover, in the 1980’s and 1990’s, policing priorities were expanded with the national “War on Drugs,” which escalated the enforcement and criminalization of drug offenses. These policies worked in conjunction to widen police power and entrap more citizens in the jail system.

The increase in these practices, however, had significant impacts on women specifically. Women are more likely than men to be involved in minor offenses like drug possession. Between 1980 and 2009, the arrest rate for women tripled while the arrest rate for men only doubled. Currently, women are arrested more frequently for “other-except-traffic” offenses, which includes activity such as criminal mischief and local ordinance violations, substance use, minor property crimes, and simple assault.

Another example of certain policies increasing the number of women in jail are prostitution diversion programs, which are present in many of the largest U.S. districts. These services may end up bringing more women into contact with the criminal justice system, particularly women of color and transgender women. Many jurisdictions use practices similar to drug stings to curb prostitution. Officers do targeted sweeps of specific neighborhoods and communities that may have high rates of prostitution. Police then may make arrests based on subjective characteristics or observations, such as walking or standing in a particular area or carrying condoms. This practice may be treating prostitution defendants as both victims and offenders, and creating an arrest record for women that can make life outside of the justice system and sex trade difficult to achieve.

CONCLUSION

Incarceration has become common practice in the U.S. for even the smallest, most non-violent of offenses. Considering the profound consequences staying in jail for even a few days can have, time in jail may be more effective when used only for dangerous offenders. Women, particularly women of color, have been a rising target of the criminal justice system for decades now. With current practices and rehabilitative efforts, it is clear that substantive change is needed.

Many questions remain about women in jail. The lack of current, comprehensive research on female incarceration impacts demonstrates a gap in addressing the rising number of jailed women. Reforming the U.S. jail system is within our grasp, if we take the reins and embrace positive, meaningful policy changes.

RESOURCES

Primary

Safety Justice and Challenge: Overlooked: Women and Jail in the Era of Reform

Bureau of Justice Statistics: Mental Health Problems of Prison and Jail Inmates

Additional

New York Times: Number of Women in Jail Has Grown Faster Than That of Men, Study Says

Washington Post: How Mass Incarceration is Spreading to Rural Counties and the Suburbs

NPR: Study: The Growing, Disproportionate Number Of Women Of Color in U.S. Jails

ACLU: Facts about the Over-Incarceration of Women in the United States

The Sentencing Project: Incarcerated Women and Girls

Center for Court Innovation: Prostitution Diversion Programs

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post Mass Incarceration: Why Are There So Many Women Behind Bars? appeared first on Law Street.

Every day, millions of Americans use antibacterial hand soaps and body washes. Fears of disease and infection have caused the ubiquitous use of these products in the home, at work, and at school. In 2009, the H1N1 virus caused Americans to buy antibacterial soaps in record numbers; it’s now difficult to even find a single soap on the market not dubbed as “antibacterial.” On September 2, 2016, the Federal Food and Drug Administration (FDA) rattled common conceptions about these antibacterial products in a final order issued by the administration.

According to the FDA, over-the-counter (OTC) antiseptic wash products with one or more of a specific list of 19 active ingredients can no longer be marketed to consumers. With the rising threat of antibiotic resistance, noted by the Center for Disease Control (CDC) in a report issued in 2013, this shows a dramatic shift toward limiting the daily use of antibacterial products by consumers. According to the CDC, washing with plain soap and water continues to be the most effective method for avoidance of illnesses and preventing the spread of germs. Dr. Janet Woodcock, director of the FDA’s Center for Drug Evaluation and Research, stated that data now suggests long-term use of antibacterial ingredients may be doing more harm than good.  Keep reading to learn more about the history of antibacterial soaps and the potential hazards they possess. 

HISTORY AND EVOLUTION OF ANTIBACTERIAL SOAPS AND WASHES

Chemically, soap is a salt of a fatty acid that transforms insoluble particles to soluble ones in water, allowing them to be rinsed off. Oil particles, for example, become soluble in water with the addition of a few soap drops. Soap has been around for centuries, with the earliest record of its use found around 2800 B.C. in ancient Babylon. A formula for soap consisting of water, alkali, and cassia oil was even found on a Babylonian clay tablet dating back to that time period. The Latin word for soap, sapo, first appears in Pliny the Elder’s encyclopedia “Historia Naturalis,” which discusses the manufacture of it from tallow and ashes. 

In the past, bathing with soap was for social or ritualistic reasons rather than for cleanliness. Industrialized nations began using soaps more commonly due to an increased understanding of the role hygiene plays in reducing the size of microorganisms. Amidst the 16th century, more luxurious soaps started being produced in Europe using vegetable oils. The late 18th century gave rise to the first industrially manufactured bar soaps. Liquid soap was not invented until the 1800’s, and in 1865, William Sheppard patented a liquid version of soap.  

According to official records, antibacterial soap was invented in 1984 by David Poshi and Peter Divone, who filed for a patent in December of that same year. Poshi and Divone added triclosan to the formulation, an antibacterial and antifungal agent that breaks down bacterial cell walls to kill them. Triclosan had previously only been used in the 1970’s as a hospital scrub. Now, it can be found not just in soap, but shampoos, deodorants, mouthwashes, and toothpastes.  

Dial soap, however, was technically the world’s first antibacterial soap on the market. In 1948, chemists from Armour and Company, a meat-packing company, developed the soap and introduced it to the Chicago market. The antibacterial properties were from the chemical hexachlorophene, referred to as AT-7, and it promised “round-the-clock” protection. The company first advertised the product on the pages of the Chicago Tribune with scented ink, and it became the leading deodorant soap manufacturer in the U.S. By the 1970’s, however, hexachlorophene was removed from the market and restricted only to the hospital setting due to reports of the chemical causing infant neurological damage. Armour then replaced the ingredient with triclocarban. Currently, the United States spends about 1 billion dollars annually on products containing triclosan and triclocarban, and about 80 percent of all antimicrobial bar soap contains triclocarban.

GENERALLY RECOGNIZED AS SAFE AND EFFECTIVE 

In 1938, Congress passed a set of laws known as the Federal Food, Drug, and Cosmetic Act to oversee and ensure the safety of food, drug, and cosmetic products in the United States. The Act defines “new drugs” as ones that have a “composition which has not been generally regarded as safe and effective by qualified experts.” The designation of generally recognized as safe and effective (GRASE) applies to particular old drugs that do not require prior approval of the FDA in order to stay or enter the marketplace because they have been recognized as generally safe and effective by medical professionals.

Essentially, a drug is not considered a new drug when it fits under the designation of GRASE. The FDA has three criteria for establishing a drug as GRASE:

1. The particular drug must have been the subject of adequate and well-controlled clinical investigations.
2. The investigations must be published in scientific literature available to qualified experts.
3. Experts must generally agree based on the published studies that the product is safe and effective for intended uses.

After reviewing available literature and research, along with hosting public meetings, the FDA has now determined that 19 chemicals used in antibacterial soaps and washes are no longer generally recognized as safe and effective.

POTENTIAL HAZARDS FROM DAILY USE

In 2013, the FDA proposed a rule after data suggested that long-term exposure to certain active ingredients in hand and body washes could pose serious health risks, such as bacterial resistance or hormonal effects. Manufacturers were then required to provide additional data to the agency regarding the general safety and effectiveness of particular ingredients in order to continue marketing these products.  This included a demonstration that the products were superior to non-antibacterial ones. Since then, manufacturers of antibacterial hand soaps and body washes containing these ingredients have not provided the necessary data to satisfy a designation of “safe and effective.”

Two of the most commonly used ingredients, triclosan and triclocarban, are two of the 19 chemicals included in the list. As indicated by the FDA, almost all soaps labeled as “antibacterial” or “antimicrobial” contain at least one of the 19 ingredients. Triclocarban has a hazard quotient of greater than one, which indicates adverse effects on organisms due to toxicity. It is found in extremely high concentrations in aquatic environments and may be disruptive to hormones critical for developmental and endocrine processes in wildlife. In tests conducted all over the globe, including the United States, scientists have detected triclosan in water supplies. Both triclosan and triclocarban have also been shown to be 100-1,000 times more effective in inhibiting and killing algae, crustaceans, and fish than they are at killing microbes. The Environmental Protection Agency currently regulates the use of triclosan as a pesticide.

“Antibacterial Soap Triclosan” Courtesy of [Mike Mozart via Flickr]

The high potential for triclosan-caused endocrine disruption in humans is also a significant hazard. While the rate of absorption in the skin is low and minimal interaction with the chemical may not have adverse effects, repeated low-dose exposure to triclosan could cause endocrine disruptions over time. Although there is not yet definitive proof that demonstrates triclosan is dangerous to humans, the information uncovered through years of animal studies suggests otherwise.

Moreover, research now demonstrates that it is critical to maintain exposure to bacteria to maintain a healthy human microbiology. A study published this month in Environmental Science and Technology noted a positive association between the concentration of antimicrobials and the abundance of antibiotic resistant genes. The team of scientists from the University of Oregon, Harvard School of Public Health, and Arizona State University found that particular dust samples collected with high levels of triclosan had higher levels of genes linked to antibiotic resistance. Even back in 2001, a team of scientists found that 76 percent of liquid soaps on that market contained antibacterial agents. They also found that no scientific evidence had ever been published to note that the use of such chemicals did anything to prevent infection.

CONCLUSION

Public health concerns over antibiotic resistance and deadly outbreaks from superbugs prompted this deeper inspection into antibacterial products and their efficacy. This final rule by the FDA impacts the soap industry on a massive scale, and some advocates are pushing back. A spokesperson for the American Cleaning Institute stated that “washing the hands with an antiseptic soap can help reduce the risk of infection beyond that provided by washing with non-antibacterial soap and water.”  

Manufacturers have only one year to comply with the final ruling by either reformulating the ingredients in their products or removing them from the marketplace altogether. Many companies have already started to phase these 19 chemicals out of their products after the 2013 FDA proposed rule, in an effort to stay ahead of the curve. Triclosan has now been replaced in products with one of three other chemicals: benzalkonium chloride, benzethonium chloride, or chloroxylenol. Companies have another year to provide data demonstrating their safety and effectiveness.

An important point to note is that this final rule does not apply to consumer hand sanitizers and wipes, or antibacterial products used in healthcare settings. For sanitizers, the FDA has requested additional information to support the safety and efficacy of those ingredients used in OTC topical consumers antiseptic products. Additionally, products such as toothpaste are not affected by this change, including all of the clothing, kitchenware, furniture, and toys that are formulated with triclosan to prevent bacterial contamination. Even with drastic industry changes ahead, it seems much research is still needed regarding antibacterial product use.

RESOURCES

Primary

U.S. Food & Drug Administration: FDA Issues Final Rule on Safety and Effectiveness of Antibacterial Soaps

U.S. Food & Drug Administration: GRASE

U.S Food & Drug Administration: Antibacterial Soap? You Can Skip It — Use Plain Soap and Water

U.S. Food & Drug Administration: FDA Requests Additional Information to Address Data Gaps for Consumer Hand Sanitizers

EPA.gov: Triclosan

American Cleaning Institute: Soaps & Detergents

Environmental Science & Technology: Antimicrobial Chemicals Are Associated with Elevated Antibiotic Resistant Genes in the Indoor Dust Microbiome

Additional

NPR: FDA Bans 19 Chemicals Used in Antibacterial Soaps

Funding Universe: The Dial Corp. History

Forbes: FDA Saves Us From Ourselves, Halts Overexcessive Use of Antibacterial Soaps

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

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