Volume 2009, No. 6

Articles

Public Access to Information on Private Land Conservation: Tracking Conservation Easements
Amy Wilson Morris & Adena R. Rissman

Conservation easements reveal major tensions between the privacy concerns of landowners and the right of the public to access information about private land conservation. State and federal governments face important choices about how to provide public access to this information given growing concerns that the public’s substantial

investment in conservation easements will be lost without comprehensive tracking over the long term. In this Article, we reflect on the public nature of conservation easements and the challenges posed by their perpetuity, and we provide concrete recommendations for legislatures seeking to improve conservation easement tracking. We employ interdisciplinary methods to assess multiple approaches to conservation easement tracking, focusing on California as a case study.

Our California analysis examines the legislative history of state and county efforts to track conservation easements. We interviewed conservation experts and used a telephone survey of county recorder offices to assess county compliance with a California law requiring conservation easement indexing. We also employed a Geographic Information System to evaluate access to spatial data on conservation lands. Despite state, county, and non-profit tracking efforts, access to conservation easement data remains fragmented and incomplete. Based on this integrative research, we suggest that five elements are particularly important to an expanded, statewide system for tracking conservation easements: (1) including as many conservation easements as possible; (2) tracking public financial investments; (3) mapping conservation easements; (4) including specific purposes and restrictions in conservation easement databases; and (5) monitoring of monitoring.

Deducting the Costs of Fertility Treatment: Implications of Magdalin v. Commissioner for Opposite-Sex Couples, Gay and Lesbian Same-Sex Couples, and Single Women and Men
Katherine Pratt

This Article considers whether federal tax law permits taxpayers to deduct medical expenses (or exclude flexible spending account reimbursements) for fertility treatment costs, including the costs of in vitro fertilization (IVF), egg donor, and surrogacy procedures. Magdalin v. Commissioner calls into question

the deductibility of IVF, egg donor, and surrogacy costs and, perhaps unintentionally, the deductibility of the costs of various other types of reproductive medical care (e.g., sterilizations, birth control pills, legal abortions, and vasectomies).

This Article also explores the tax implications of the Magdalin case for infertile and fertile taxpayers, including opposite-sex married and unmarried couples, gay and lesbian same-sex couples, and single women and men. The case indicates that the tax deductibility of fertility treatment costs turns on: (1) whether the taxpayer (or “his spouse”) has been diagnosed with “medical” infertility; (2) how we constitute “the body,” “of” “the taxpayer, his spouse, or a dependent”; (3) the taxpayer’s sex, marital status, and sexual orientation; and (4) what the Internal Revenue Service and judges implicitly consider to be “natural” or “normal” reproduction. In addition, this Article addresses the taxpayer’s argument that the status-based distinctions in Internal Revenue Code section 213 are unconstitutional, discusses the circumstances in which section 213 does and does not aggregate “bodies,” and notes the ways in which law constitutes “the body,” based on notions of what is “natural” or “normal.”

Essay

Legalizing Marijuana: California’s Pot of Gold?
Michael Vitiello

In early 2009, a member of the California Assembly introduced a bill that would have legalized marijuana in an effort to raise tax revenue and reduce prison costs. While the bill’s proponent withdrew the bill, he vowed to renew his efforts in the next term. Other prominent California officials, including Governor Schwarzenegger

, have indicated their willingness to study legalization in light of California’s budget shortfall. For the first time in over thirty years, politicians are giving serious consideration to a proposal to legalize marijuana. But already, the public debate has degenerated into traditional passionate advocacy, with ardent prohibitionists raising the specter of doom, and marijuana advocates promising billions of dollars in tax revenues and reduced prison costs. Rather than rehashing the old debate about legalizing marijuana, this Essay offers a balanced view of the proposal to legalize marijuana, specifically as a measure to raise revenue and to reduce prison costs. It raises some of the central problems with proponents’ arguments, including how their goal of reducing prison costs effectively undercuts their goal of raising revenue. Additionally, it challenges extravagant claims of the prohibitionists that legalizing marijuana will lead to significant increases in marijuana use and attendant social harm. In the end, the author offers a mild endorsement for legalization.

Comment

Halting Modern Slavery in the Midwest: The Potential of Wisconsin Act 116 to Improve the State and Federal Response to Human Trafficking
Jessica E. Ozalp

The burgeoning global industry of human trafficking is now active in the midwestern United States. In 2008, Wisconsin passed legislation to criminalize this modern form of slavery, joining over forty other states. Yet both federal and state human-trafficking laws have remained virtually unused in Wisconsin, thus having minimal

impact on the problem locally. Like many states, Wisconsin must improve its anti-trafficking law in order to successfully reduce human trafficking. Inadequate state legislation prevents identification of trafficking situations, appropriate allocation of state resources, prosecution and punishment of traffickers, and protection of human-trafficking victims.

This Comment explores ways to increase the potential usefulness of Wisconsin’s new anti-trafficking law. It analyzes Wisconsin Act 116 in comparison with existing federal and international laws and model state laws, proposing three areas of improvement for the statute. The first key area is providing better definitions for each element of the crime. Second, the Wisconsin legislature should remove the words “without consent” from the definition of trafficking activities. The law already requires proof that the trafficker used coercion, thereby differentiating willing participants from trafficking victims. Removing the nonconsent element would draw the focus back from the victim to the perpetrator, and remove an unnecessary obstacle to prosecution. Finally, Wisconsin should mandate funding for essential state anti-trafficking initiatives such as victim services, law enforcement training, public education, and further research on the trafficking problem.

Note

In re Kubin’s Reinvigorated Nonobviousness Standard for DNA Patents
Thomas A. Isenbarger

In In re Kubin, the Federal Circuit declined to apply its outdated, anomalous nonobviousness standard for DNA patents, and instead adopted a modern standard that mirrors most other nations’ patent law and appropriately considers the progress of science. While both legal practitioners and legal scholars have argued for

reinvigorating the nonobviousness standard as it is applied to DNA sequences, the Kubin court has now incorporated this doctrinal change in U.S. patent law. Consequently, this decision may have substantial and far-reaching effects for the biotechnology industry. Practical and policy arguments support its adoption, and both the standard’s roots in U.S. patent law and the standard’s analogous provisions in the European patent law will provide support and guidance to those who must now implement and apply the standard.