Temple Law Review Print
Volume 90, No. 1, Fall 2017

Economists across the political spectrum argue that a carbon tax is the most effective and economically efficient policy for addressing climate change. Voters, however, strongly oppose the carbon tax and instead favor “green” subsidies and command-and-control regulations. If carefully designed, these policies might complement a carbon tax, but by themselves, they will make global warming mitigation incredibly expensive and perhaps even infeasible. Moreover, if poorly designed, subsidies and regulations can be counterproductive.

This Article argues that the public dislikes the carbon tax because the tax possesses attributes that make it psychologically unappealing relative to other climate policy instruments. The Article also argues that even if carbon tax proponents eventually persuade voters to accept a carbon tax, voters are biased in favor of particular design features that would make the tax less efficient. The Article discusses ways to overcome the problems that voter psychology creates. These include a communications strategy designed to combat voter bias and the controversial proposition that bureaucrats, who are somewhat insulated from public pressure, might adopt a carbon tax administratively. The Article also contributes to the burgeoning literature on how psychology affects the law and public policy.

By Gary M. Lucas, Jr. [PDF]

The question of state standing against the federal government effectively arose with the growth of public law and the expansion of federal administrative agencies. The prevailing presumption has been against recognizing states’ standing to sue the federal government, either on the basis of federal supremacy or on the basis of the political question doctrine. Yet over the past century, a theory of state standing against the federal government has evolved around the nebulous doctrine of injuries to states’ “quasi-sovereign” interests.

This Comment sorts through three predominant arguments of legal scholars on this issue: a common law theory, a theory based on the doctrine of parens patriae, and a theory of constitutionally derived sovereignty interests. This will lead to a proposed interpretation that maintains legal consistency and precedent while basing the judiciary’s Article III jurisdiction over state suits on sovereignty interests implicit in the Constitution. This Comment will limit justiciable quasi-sovereign interests to a state’s sovereign interest in its territorial and jurisdictional integrity. This interpretation provides a narrow enough reading of Massachusetts to stymie a vast expansion of state recourse to the federal courts to litigate policy differences with the federal administration, yet it still allows states the necessary opportunity to protect their interests in territorial integrity. As a foil upon which to apply this legal theory, this Comment turns to the Court’s most recent encounter with the question, resulting in a split decision over the Fifth Circuit’s holding in Texas v. United States.

By David A. Nagdeman [PDF]

The Pennsylvania Constitution contains an amendment known as the Uniformity of Taxation Clause (Uniformity Clause). It requires all taxes enacted in Pennsylvania to be uniform within the class—the group of people or things with common characteristics—being taxed. In 2016, the Philadelphia City Council enacted the Sugar-Sweetened Beverage Tax (Soda Tax). The Soda Tax imposes a 1.5-cent tax per fluid ounce of sugar-sweetened beverage, to be paid by the distributors of these beverages.

This Comment argues that in view of both constitutional and common law, Philadelphia’s Soda Tax violates the Uniformity Clause of the Pennsylvania Constitution. It violates this provision because the tax applies an unequal burden on the taxpayers who distribute sugary beverages at varying market values. An argument is presented for an alternative system of taxation that provides a framework to render the Soda Tax constitutional.

By Richard J. Lechette [PDF]

States face many choices when negotiating trade agreements. The substantive considerations in trade agreements are numerous and can range from the large-scale considerations like the scope of the agreement to more minute details such as which sectors of industry will receive favorable tariff treatment and how favorable that treatment will be. However, states traditionally have put off some choices until the future. When treaties cover international investment, they almost always save for later the selection of arbitrators who will oversee disputes. The decision to choose arbitrators only after a dispute has occurred is supported by tradition and logic. The specific nature of a conflict cannot be known until that conflict has arisen. In recent years, however, multiple parties have expressed concern about the potential for conflicts and bias that are allegedly perpetuated by this system and, accordingly, have argued for change.

A leaked draft of the Regional Comprehensive Economic Program (RCEP), a Southeast Asian trade treaty created by states whose population represents nearly half the global total and who combine to make up nearly forty percent of the global trade market, adopted one proposed change. The RCEP has rejected tradition and boldly embraced one idea from reformers: creating a preselected list of potential arbitrators who will oversee all future trade disputes. This Comment contends that this idea will undermine the purposes of the international investment regime and weaken one of its main pillars of support: investor-state dispute settlement (ISDS). By diverging from tradition, the RCEP member states are weakening a treaty that otherwise shows great potential to transform trade relations in the region.

By Spenser Karr [PDF]