Public trust doctrine
Civil and political rights
Collective action problems
Tragedy of the Commons
John Hart Ely
Permanent link to this recordhttp://hdl.handle.net/20.500.12613/6606
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AbstractCalls for recognition of a human right to security from climate disruption have become more common, from both courts and scholars. But such a right has a far better chance of being effective – substantively and rhetorically – if grounded in the civil and political rights tradition, rather than the second or third-generation rights of the post-Second World War era. This chapter begins to sketch out some arguments that would situate a human right to climate security squarely in the civil and political rights tradition by connecting that new right to the fundamental values and concerns that have always animated that tradition. Whether one views those values as centrally concerned with the maintenance of individual autonomy and dignity or with protecting the integrity of the democratic process, civil and political rights are at bottom a response to power imbalance. While many twentieth century theorists have understandably focused on the power imbalance most emblematic of that century’s central moral challenge (that fuelled by prejudice), in constructing a human right for the twenty-first century, we should broaden that lens to encompass the other forms of power imbalance driving the climate crisis: between wealthy corporate interests and the poor and powerless; between us and future generations or other species; and between the functioning governments of the globe that possess the unique power to tackle this textbook collective action problem and individual citizens.
CitationAmy Sinden, A Human Rights Framework for the Anthropocene, in Research Handbook on Global Climate Constitutionalism 132 (Jordi Jaria-Manzano & Susana Borrás, eds., 2019).
Citation to related workThis is a draft chapter. The final version is available in Research Handbook on Global Climate Constitutionalism edited by Jordi Jaria-Manzano and Susana Borrás, published in 2019, Edward Elgar Publishing Ltd. https://doi.org/10.4337/9781788115810. The material cannot be used for any other purpose without further permission of the publisher, and is for private use only.
Has partChapter appears in: Research Handbook on Global Climate Constitutionalism, (Jordi Jaria-Manzano & Susana Borrás, eds., 2019).
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Embracing the TBORAbreu, Alice G.; Greenstein, Richard K. (2017-11-27)When Congress codified the Taxpayer Bill of Rights (the “TBOR”) in 2015 the tax bar largely shrugged, but that is a mistake. Section 7803(a)(3) is not just another iteration of the phrase Congress used to christen legislation designed to reign in perceived IRS abuses in the 80’s and 90’s, when Congress enacted three different pieces of legislation that bore the name “Taxpayer Bill of Rights.” Despite their lofty titles, none of those enactments contained a single amendment to the Internal Revenue Code that used the word “right,” or employed the language of rights. By contrast, section 7803(a)(3) actually refers to “taxpayer rights” and lists ten items. Therefore, despite the claims of its promoters that the 2015 legislation simply restates rights already provided by the Code, the codification of the TBOR has the power to transform the tax practice and the relationship between taxpayers and the IRS. In this Article we explain why. Specifically, we make three arguments. First, construing the 2015 codification of the TBOR as a meaningless gesture ignores the well-established canon of statutory construction against surplusage, as well as its important corollary: when Congress amends a statute it intends to change something. Second, the TBOR significantly enhances taxpayers’ normative basis for demanding legal remedies for violations of their rights because it invokes procedural justice, using the language of rights where only government duties existed before. Third, the TBOR may have actually created taxpayer rights. We do not argue that all taxpayer rights should be enforced either all the time or to the same extent, as that could be disruptive or even catastrophic for tax administration and may not be necessary to allow the TBOR to achieve its goals. But we do maintain that the codification of the TBOR can transform the legal environment so that demands for enforcement can be weighed by the courts on a case by case basis, in light of all the facts and circumstances, which include the identity and attributes of the taxpayer. Recent events confirm the importance of the TBOR and suggest that the tide of taxpayer indifference has begun to turn. On November 8, 2017, Facebook filed a complaint against the IRS, citing the TBOR’s “right to appeal a decision of the Internal Revenue Service in an independent forum,” section 7803(a)(3)(E)), as the basis for its request that the court “[i]ssue an injunction or mandamus-like relief ordering Defendants to provide Facebook access to IRS Appeals.” We believe that Facebook is just the first of many taxpayers who will formally embrace the TBOR as a source of rights and as the basis for crafting remedies to enforce those rights.
THE PROMOTION OF THE AFRICAN HUMAN AND PEOPLES' RIGHTS SYSTEM IN THE GAMBIA, A CROSS CULTURAL & AFRICOLOGICAL ANALYSISAsante, Molefi Kete, 1942-; Mazama, Ama, 1961-; Poe, Zizwe; Nwadiora, Emeka (Temple University. Libraries, 2013)Primarily, this study seeks to examine the means and effectiveness of the African Commission on Human and Peoples' Rights, African human and Peoples' rights organizations, and the government of the Gambia in their efforts to propagate the institutions and legal instruments of the African Human and Peoples' Rights System (AHPRS) in general and the rights and duties of the African Charter on Human and Peoples' Rights in the country of The Gambia in particular since the Charter came into force in 1986. The work explores the history of the AHPRS from ancient conceptions of rights and duties within Classical Africa to its formal establishment in the 1980s and 1990s with emphasis placed on the particular political and social history of The Gambia. Further, the work presents and analyzes the work of three African human rights organizations operating within The Gambia and offers an Afrocentric critique of the promotion of the African Human and Peoples' Rights System.
Listen to Peter: Embrace the TBORsAbreu, Alice G.; Greenstein, Richard K. (2018-01-29)A TBOR is a Taxpayer Bill of Rights and 43 states, and the federal government all have one. Unfortunately, most practitioners either don’t know that TBORs exist, or, if they do, they think TBORs are of little, if any, practical importance—toothless tonics designed to make taxpayers feel better about the unpleasantness of paying taxes but offering no enforceable rights. Nevertheless, as no less an authority than Peter Faber urged in an “In the Trenches” article published in State Tax Notes on September 4, 2017, for tax advisors to ignore the “more general taxpayer protection rules of the sort that are embodied in bill of rights legislation . . . [is] a mistake. There are times when these rules may be helpful in controversy situations.” We think that not only is Peter correct, but that TBORs can do even more. TBORs can transform both tax practice and the relationship between taxpayers and taxing authorities, and their provisions can be enforced by courts even in the absence of legislative language providing for such enforcement. There are at least three arguments in support of that proposition, and we developed them in a Special Report we wrote on the Federal TBOR, and recently published in Tax Notes: Embracing the TBOR. We think each of those arguments could also be made with respect to state TBORs. As we explain in that Article, the first argument is that construing the codification of the TBOR as a meaningless gesture ignores the well-established canon of statutory construction against surplusage. The second is that the TBOR significantly enhances the taxpayer’s normative basis for demanding legal remedies for violations of taxpayer rights because it invokes procedural justice, using the language of rights where only government duties existed before. And the third is that the TBOR may have actually created taxpayer rights. Our Article on the Federal TBOR does not argue that all taxpayer rights should be enforced either all the time or to the same extent, as that could be disruptive or even catastrophic for tax administration and may not be necessary to fulfill the objectives of the TBOR. But it does maintain that the adoption and particularly the codification of the TBOR can transform the legal environment so that demands for enforcement can be weighed by the courts on a case by case basis, in light of all the facts and circumstances, which include the identity and attributes of the taxpayer. Language in many of the state TBORs to the effect that failure to comply with the provisions of the TBOR will not invalidate particular government actions should not preclude redress that takes other forms.