Jul 3, 2024 Dorothy BrownTax Law
Professor Richard Winchester’s Essay, A Simple Tax Case Complicated by Race, is a very enlightening and quick read. His Essay details a Tax Court decision about whether a sale of land by a real estate developer is eligible for favorable tax treatment. And while most law students who have taken a single individual income tax class would rightly tell us the answer is no, Professor Winchester takes us through an opinion that finds otherwise—because of race! First, a primer for my non-tax-geek readers.
For most of our modern income tax history, the gain applicable to the sale of capital assets like stock or real estate held by investors, has been eligible for a low, preferential tax rate. Sales of inventory, or property “primarily for sale to customers” on the other hand are taxed at the highest ordinary income tax rates available. Real estate developers therefore are selling property they hold for sale to customers and generally ineligible for the lower, preferential tax rate. Except, Tax Court Judge Withey did not get the memo. Why? Professor Winchester argues that it is because of race. Continue reading "Capital Gains and Race: Through A Different Lens"
Jul 2, 2024 P. T. BabieProperty
In a previous JOT, I wrote that private property is deeply ingrained not only in our liberal world, but also in our DNA. In Innate Property: The Danger of Incongruency Between Law and the Biological and Behavioral Roots of Property and Possessiveness, Aaron Schwabach provides important evidence of the latter fact, arguing that one finds those biological-behavioral origins in the “innate urge to exclude.” (P. 190.)
While the right to exclude is always found in law, this must be distinguished from our “proprietary instinct: The[]…innate urge to say ‘this thing is mine, and no one can use it unless I let them.’” (P. 191.) Schwabach calls this, simply, “innate property.” (P. 190.) Continue reading "Innate Property—A Behavioral Trap"
Jul 1, 2024 Ezra RosserLexNative Peoples LawPoverty Law
Vanessa Ann Racehorse,
Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives, __
Colum. Hum. Rts. L. Rev. __ (forthcoming), available at
SSRN (April 10, 2024).
The life expectancy of Native Americans is almost eleven years less than the average of all races in the United States. (P. 20.) And across countless other metrics—from drug addiction to diabetes—Natives suffer disproportionately high rates of illness and death compared to other Americans. (P. 20.) Despite this, funding for Indian Health Services (IHS) remains below the level of support given to non-Indians and well short of what is needed to provide adequate health care to tribal communities. (P. 19.) Professor Vanessa Ann Racehorse’s article, Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives, does a fabulous job describing the linked problems of health disparities and insufficient funding for Native communities, while also offering suggestions on how health outcomes might be improved. But the article’s contributions extend beyond laying a foundation for better understanding tribal health care; Professor Racehorse also shows that when Indian nations assert their powers of self-determination in the health care space, outcomes for tribal members can improve.
Tribal Health Self-Determination is a reminder of the relatively high levels of reservation poverty and the ways that poverty, subordination, and health intersect. As Professor Racehorse highlights, Indian health is made worse by past injustices such as forced sterilization that contribute to historical trauma. (Pp. 11-12.) But health disparities are not inevitable. Under international law, tribal members have a right to the highest attainable standard of health. (Pp. 34-39.) Moreover, tribal takeover of IHS facilities can lead to better health outcomes through culturally competent care and local accountability. (Pp. 40-58.) Under-funding remains a challenge, but Professor Racehorse’s article provides a strong argument for supporting tribal assertions of authority over facilities that were previously run by the federal government. Continue reading "Improving Health Services for Tribal Communities"
