The Faculty Lounge

The Israeli-Palestinian Conflict: A Reading List

This compilation is marked by two conspicuous constraints: largely (i.e., with a few important exceptions) books only, in English. The first constraint is owing to the desire to keep the list manageable, the second because I’m not well acquainted with the bulk of the literature in other languages. I welcome suggestions for further titles.

• Abbas, Mahmoud (Abu Mazin). Through Secret Channels: The Road to Oslo—Senior PLO Leader Abu Mazen’s Revealing Story of the Negotiations with Israel. Reading, UK: Garnet, 1995.
• Abu-Lughod, Ibrahim. The Transformation of Palestine: Essays on the Origin and Development of the Arab-Israeli Conflict. Evanston, IL: Northwestern University Press, 1971.
• Abu-Lughod, Ibrahim. Palestinian Rights: Affirmation and Denial. Wilmette, IL: Medina Press, 1982.
• Abu-Lughod, Ibrahim, ed. The Arab-Israeli Confrontation of June 1967: An Arab Perspective. Evanston, IL: Northwestern University Press, 1970.
• Abuminah, Ali. One Country: A Bold Proposal to End the Israeli-Palestinian Impasse. New York: Holt McDougal, 2007.
• Alam, M. Shahid. Israeli Exceptionalism: The Destabilizing Logic of Zionism. New York: Palgrave Macmillan, 2010.
• Aranson, Geoffrey. Israel, Palestinians and the Intifada: Creating Facts on the West Bank. London: Kegan Paul International, 1990.
• Arnon. Arie, Sara Roy and Leila Farsakh. Palestinian Labour Migration to Israel: Labour, Land and Occupation. London: Routledge, 2005.
• Aruri, Naseer H. The Obstruction of Peace: The United States, Israel and the Palestinians. Monroe, ME: Common Courage Press, 1995.
• Aruri, Naseer H. Dishonest Broker: The Role of the United States in Palestine and Israel. Cambridge, MA: South End Press, 2003.
• Aruri, Naseer H., ed. Occupation: Israel Over Palestine. London: Zed Books, 1984.
• Asali, Kamil J., ed. Jerusalem in History. New York: Olive Branch Press/Interlink, 2000. 
• Auyyad, Abdelaziz A. Arab Nationalism and the Palestinians, 1850-1939. Jerusalem: Passia, 1999.
• Avineri, Shlomo. The Making of Modern Zionism. New York: Basic Books, 1981.
• Awad, Mubarak. Nonviolent Resistance in the Middle East. Philadelphia, PA: New Society            Publishers, 1985.
• Awad, Mubarak E. and R. Scott Kennedy. Nonviolent Struggle in the Middle East. Philadelphia, PA: New Society Publ., 1985.
• Barghouti, Omar. BDS: Boycott, Divestment, Sanctions—The Global Struggle for Palestinian Rights. Chicago, IL: Haymarket Books, 2011.
• Baroud, Ramzy. The Second Palestinian Intifada: A Chronicle of a People’s Struggle. London: Pluto Press, 2006.
• Baroud, Ramzy. My Father Was a Freedom Fighter: Gaza’s Untold Story. London: Pluto Press, 2010.
• Beinin, Joel and Rebecca L. Stein, eds. The Struggle for Sovereignty: Palestine and Israel, 1993-2005. Stanford, CA: Stanford University Press, with the Middle East Research and Information Project, 2006.
• Beit-Hallahmi, Benjamin. The Israeli Connection: Who Israel Arms and Why. New York: Pantheon Books, 1987.
• Ben-Ami, Shlomo. Scars of War, Wounds of Peace: The Israeli-Arab Tragedy. New York: Oxford University Press, 2006.
• Ben-Eliezer, Uri. The Making of Israeli Militarism, 1936-1956. Bloomington, IN: Indiana University Press, 1998.
• Benvenisti, Eyal. Legal Dualism: The Absorption of the Occupied Territories into Israel. Boulder, CO: Westview Press, 1990.
• Benvenisti, Eyal. The International Law of Occupation. Princeton, NJ: Princeton University Press, 1993.
• Benvenisti, Meron. Intimate Enemies: Jews and Arabs in a Shared Land. Berkeley, CA: University of California Press, 1995.
• Bernstein, Deborah S. Constructing Boundaries: Jewish and Arab Workers in Mandatory Palestine. Albany, NY: State University of New York Press, 2000.
• Bisharat, Geroge. Palestinian Lawyers and Israeli Rule: Law and Disorder in the West Bank. Austin, TX: University of Texas Press, 1989.
• Black, Edwin. The Transfer Agreement: The Dramatic Story of the Pact Between the Third Reich and Jewish Palestine. New York: Basic Books, 2001. ed.
• Black, Ian and Benny Morris. Israel’s Secret Wars: The Untold History of Israeli Intelligence. London: Hamish Manilton, 1991.
• Bowen, Stephen, ed. Human Rights, Self-Determination, and Political Change in the Occupied Territories. The Hague: Kluwer Law International, 1997.
• Boyle, Francis A. Palestine, Palestinians, and International Law. Atlanta, GA: Clarity Press, 2003.
• Brand, Laurie. Palestinians in the Arab World: Institution Building and the Search for a State. New York: Columbia University Press, 1988.
• Brenner, Lenni. The Iron Wall: Zionist Revisionism from Jabotinsky to Shamir. London: Zed Books, 1984.
• Bröning, Michael. The Politics of Change in Palestine: State-Building and Nonviolent Resistance. London: Pluto Press, 2011.
• Budeiri, Musa. The Palestine Communist Party, 1919-1948: Arab and Jew in the Struggle for Internationalism. London: Ithaca, 1979.
• Brynen, Rex, ed. Echoes of the Intifada: Regional Repercussions of the Palestinian-Israeli Conflict. Boulder, CO: Westview Press, 1991.

CFP: Institute for Global Law & Policy Conference at HLS

The Institute for Global Law & Policy (IGLP) at Harvard Law School announces its first biannual international conference, "New Directions in Global Thought," to be held in Boston on June 3-4, 2013.  According to its website, IGLP "is a collaborative faculty effort to nurture innovative approaches to global policy in the face of a legal and institutional architecture manifestly ill-equipped to address our most urgent global challenges." Panel and paper proposals on governance, inequality, conflict, and the rule of law are invited. More information is available here.

(The conference is scheduled to occur immediately after the 2013 Law & Society meeting in Boston, which I blogged about here.) 

Conference Announcement: Intercountry Adoption

A slightly edited version of an email that I received yesterday:

In February, the Herbert and Elinor Nootbaar Institute for Law, Religion and Ethics at the Pepperdine School of Law will host its 10^th annual conference.  This year we will explore the complexities of intercountry adoption from legal, social, and religious perspectives.  The Nootbaar Institute now welcomes proposals addressing this topic.

If you would like to present a paper or organize a panel of 3-4 presenters, please submit your proposal by October 8, 2012 to dana.zacharia@pepperdine.edu.

If you have questions about the substance of the conference, contact Bob Cochran at robert.cochran@pepperdine.edu or Jay Milbrandt at jay.milbrandt@pepperdine.edu. For questions about the details of the conference, contact Dana Zacharia by email dana.zacharia@pepperdine.edu or by phone (310) 506-6978.

For more information on the Nootbaar Institute and to view details of past conferences, please visit: http://law.pepperdine.edu/nootbaar.

Laplante on 'Negotiating Reparations Rights'

Lisa J. Laplante of the University of Connecticut School of Law has a new paper, "Negotiating Reparation Rights: The Participatory and Symbolic Quotients," up on ssrn.  Laplant's important article reminds me yet again how much new and excellent work is being done on reparations -- a topic that was almost abandoned by legal scholars there for a few years.  Laplante's interested in several problems -- beginning with the sad fact that there are insufficient funds to repair for past gross injustices.  Her laboratory is Peru, which emerging from an oppressive regime.  She focuses on two issues -- the right of victims to participate in the new government and also to receive something in the way of symbolic reparations.  (I'm rather skeptical of rights of participation -- I seem them as the democracy version of transparency -- necessary but far from sufficient; and also often rather over-rated as focal points of relief.)  Yet, these are important starting points; and one must recognize that they may be all that's available -- if they are even available.

Live Blogging "Critical Perspectives on Tax Policy" Conference at Emory Law - Part 3

The second and final day of the "Critical Perspectives on Tax Policy" Conference at Emory is under way.  

This morning, Tony Infanti (Pitt) presented "A Critical Perspective on International Equity." In that paper, he argues that tax issues are embedded in larger foreign policy and development issues.

Sarah Webber (Business, Dayton) presented "Earned Income Tax Alternatives: A Comparative Look at Other Developed Nations' Response to Working Poor Assistance."  She examines the tax benefits provided by G8 countries, as well as Norway, Australia and New Zealand, for families and low-income workers.  Professor Webber looks at the extent to which other countries have adopted aspects of the U.S. EITC program, and considers alternatives to a U.S. model.

Devin Fergus (History, Hunter College) spoke on "Reagan's Tax Eaters: College Students and the Origins of Today's Student Debt Crisis."  He is at work on a book and a documentary film on the subject.  I was captivated by Professor Fergus's explanation of how federal law, rates of inflation, the rise of conservatism in America - among other factors - have contributed to a true economic crisis in the financing of higher education.

The current project of Palma J. Strand (Creighton) is "Give the Kids a Break: Using Tax Policy to Support Care for Children."  She investigates poverty and economic inequality experienced by women and children.  Professor Strand argues for tax benefits for care-providers.

Camille Walsh (Interdisciplinary Studies, U. of Washington Bothell) spoke on "Racial Consciousness and 'Taxpayer Citizenship' in 20th Century School Funding Debates."  This is the topic of her book manuscript, Racial Taxation: School Finance and "Taxpayer Citizenship," 1869-1973, in which she argues that the historic disaggregation of racial and class identities in education-related litigation arose, in part, out of an interconnected set of ideas about property tax, citizenship, and a right to education. 

After lunch, Nancy Knauer (Temple) will offer reflections on and lead a discussion about "Critical Tax Theory: Earning a Place at the Table."

The conference is a great size -- 19 participants -- which has allowed for ample discussion.  The schedule also has included several unhurried breaks and meals, which has encouraged informal interaction.  Sometimes conferences can be too big or too programmed, but conference organizer Dorothy Brown (Emory) struck the right balance (and knows how to pick a great restaurant!).  

Law School Hiring: Loyola University (Chicago)

Loyola University (Chicago) seeks nominations and applications for an endowed chair in international law.  Additional info here. 

FCPA

My friend Mike Koehler has a "new and improved" website for his blog devoted to the Foreign Corrupt Practices Act.  Here's the link.

Permanent versus Temporary

Bridget's post about Texas got me  thinking about perpetuity.

I spend most of my time thinking about land conservation these days. In particular, I have been obsessed with intrigued by conservation easements.

Conservation easements are like those restrictive covenants and easements we muddled through in our property classes. Although the details differentiating them are unimportant here, one key selling point of conservation easement is that they can be (and in many cases must be) perpetual. One of the more controversial arguments I have made recently is that conservation easements should not last forever. While I have no intention or need to reopen  that debate here, I was surprised to stumble across an a recent article from the journal Biological Conservation. In Temporary Conservation for Urban Biodiversity, the authors argue against prioritizing brown fields for redevelopment. Specifically, they argue that leaving sites vacant temporarily (their study suggests 15 years) will increase urban biodiversity.

There are a lot of caveats here of course. Their case study is from Bremen, Germany where land-use planning laws and paradigms differ. They are only talking about what to do with brownfields, not benefits that may or may not accrue from greenfield conservation. And yet, I am still fascinated by this article. Land conservationists generally argue that brownfields should be developed instead of greenfields and that when we do preserve land, we should preserve it for as long as possible (preferably forever). This article challenges those assumptions.

Buchheit & Gulati On The Greek End Game

A year ago, I blogged about the Buchheit and Gulati paper, How To Restructure Greek Debt.  In contrast to the complete disinterest with which the downloading blogosphere greets attempts to promote my own papers, an exasperating cascade of SSRN downloads followed. 

Savvy Loungers know that Greece did not, in fact, restructure.  Instead, it concluded an agreement with the Eurozone member states, with the backing of the IMF, for access to a €110 billion facility that was judged at that time sufficient to repay all Greek public-sector debts maturing during the three-year IMF program period and to cover anticipated budget deficits during that period. The European Central Bank also embarked on a program of open market purchases of Greek and other Eurozone periphery debt and is thought now to own €40-50 billion of Greek sovereign bonds purchased in the secondary market.  And last month, the Greek Finance Minister said publicly that even the €110 billion EU/IMF facility might not be enough to tide Greece over until 2013. 

So what now?  That is, in the words of Buchheit and Gulati, what are the possible endgame scenarios regarding Greek debt?  According to Buchheit and Gulati there are three:

(i) Greece goes the distance with the current IMF/EU program and a debt restructuring is avoided altogether – Greece re-enters the public debt market in 2013 to refinance maturing debt and EU/IMF loans,

(ii) a debt restructuring of some kind becomes unavoidable after June 2013 when the EU’s “read my lips -- no restructuring until 2013” promise lapses by its terms, and

(iii) a liability management transaction [Lawyer-speak for “restructuring” IMHO, the authors’ linguistic gymnastics, notwithstanding – KDK] affecting some or all of the Greek debt stock is launched before 2013.

Buchheit and Gulati are irritatingly even-handed, at least superficially, in their treatment of the “go the distance” scenarios.  For example, by their own account, the Greek public sector debt in 2013 will represent 150-170% of GDP and half of that debt will be held by official sector creditors (the EU, ECB, and IMF). At least one of these actors claims preferred creditor status for itself.  And Greece will have just emerged from three years of IMF-imposed austerity measures that inhibit economic growth.  And yet Greece is still able to retap the public debt markets in 2013 under Scenario One? 

Of the post-2013 scenarios, Buchheit and Gulati envision three involving a restructuring of Greek debt and one involving Greece as a ward of the official sector for some indefinite period.  Needless to say, the “ward of state” option would be unacceptable to Greece (and not too attractive to the official sector either).  And any scenario involving an official sector hit (that is, the EU, ECB, and IMF, which will by that time own ½ to 2/3 of outstanding Greek debt) in order to repay commercial creditors is, according to the authors, nearly inconceivable.  Thus leaving, in reality, only two post-2013 options, both of which entail costs and risks. 

Thus, by their own terms, Buchheit and Gulati seem to suggest – without ever saying so -- that the pre-2013 restructuring scenarios are the ones that make the most sense.  For the details of those proposals, read the whole paper here. 

In the words of the inimitable Larry Solum, download it while it’s hot!

Icelanders Vote No In Weekend Referendum

Icelanders have rejected a deal to settle claims by Britain and the Netherlands stemming from the 2008 collapse of Icelandic banks.  The British and Dutch governments are now expected to sue Iceland in an attempt to recoup billions paid to depositors after the Icelandic bank failure.

The deal, which would have settled the dispute on favorable terms (though, apparently, not favorable enough for Icelanders), was negotiated by Clearly Gottlieb lawyer, Lee Buchheit, a frequent guest Lounger, whose role in the deal was praised last year by the Icelandic press. 

An interesting turn of events, indeed.  Hopefully when all is settled Buchheit can be persuaded back to the Lounge for a return stint to discuss the affair.

Who Needs a Pick-Me-Up?

As if the UCC itself didn't provide a sufficient buzz, now comes ... UCC coffee!

(Hat tip to Bob Lawless at Credit Slips.)

Withdrawing from Customary International Law

I've been following for a while now the controversy that my neighbors Mitu Gulati and Curtis Bradley have stirred with their article, "Withdrawing from Custom," which appeared in the Yale Law Journal last year.

It's a sign of the importance of their project that the Yale Law Journal on-line now has four responses up --by Carlos M. Vázquez , Leah Brilmayer and Isaias Yemane Tesfalidet, William S. Dodge, and David Luban.  Gulati and Bradley now have a response to the responses up on ssrn, "Mandatory versus Default Rules: How Can Customary International Be Improved?"

As I've said before, this is really outside of my area of expertise and knowledge -- except the part that relates to nineteenth century US history.  And what sort of surprises me about the debate is the extent to which history, particularly the pre-Civil War history, has become a battle ground.  As I see this, the pre-Civil War history is on Mitu's and Curtis' side -- that is, there was a sense that states were weak and that the equal dignity of states, as well as practical reality, required a weak system of international law.  This is one of the reasons why pre-Civil War southerners were so enamoured of Vattel and why they so frequently returned to international law as a model for Constitutional practice within the United States.  

Given this history -- and the fact that historical practice is so frequently on the side of conservativism -- I'm not surprised that Curtis and Mitu turn to it.  It provides an important model for the world they want, of weak enforcement of international law.  What surprises me, though, is that people who respond to Mitu and Curtis are returning to that world.  I would have thought that they'd have labeled the era of Vattel and the pre-Civil War as the bad old days and instead focus on the post-Civil War story and say that we're in a different and more enlightened world now.  At least if I were responding to Curtis and Mitu, that's what I would have argued.  

All of this is most interesting, to see how history is wielded as part of advocacy.  And on that I hope to have some more thoughts at a later point.

Genocide and Political Groups

Readers who are following the ongoing political violence in Libya may be interested to know that Genocide and Political Groups was published late last year by Oxford University Press.  Its author is David Nersessian, currently a Visiting Assistant Professor at Boston University School of Law.  From OUP's website:

Genocide and Political Groups provides a comprehensive examination of the crime of genocide in connection with political groups.  It offers a detailed empirical study of the current status of political groups under customary international law, as well as a comprehensive theoretical analysis of whether political genocide should be recognized as a separate crime by the international community.

The book discusses whether a stand-alone crime of political genocide should be recognized under international law.  It begins by examining the historical development of genocide and critically assessing the unique requirements of the crime.  It then demonstrates that other international offences - notably crimes against humanity and war crimes - are not workable substitutes for a specific offence that protects political groups.

This is followed by an analytical study of the protection of human groups under international law.  The book proposes a new theory that links the protection of groups to individual rights of a certain character that give rise to the group's existence.  It then applies that theory in evaluating whether political groups are legitimate candidates for specific protection from physical and biological destruction 'as such'.

The writing includes an exhaustive analysis of state practice and opinio juris on the treatment of political groups.  It empirically refutes claims that political groups are protected already from genocide by virtue of post-Convention developments in customary international law.  In response to this legal reality, however, the book analyses the theoretical and public policy justifications for international criminal law and demonstrates that the international community would be well served by creating a separate international crime to address political genocide.

Related links of possible interest include:

A full chapter (detailing the new genocide theory);

A podcast of an interview with Nersessian about political genocide; and

A prior article by Nersessian on the distinctions between genocide and crimes against humanity (which David tells me is now part of the ICC prosecutor's investigation in Libya).

Truth, Reconciliation and the Bank Bailouts?

Dr. Jaime Malamud Goti is the former Solicitor General of Argentina.  During his tenure, he was responsible for the trials of Argentine junta members for human rights violations against the people of Argentina. I have just read Dr. Malamud Goti 's essay A Turbulent Past and a Problem with Memory, published last year in Oxford's International Journal of Transitional Justice.  He writes with beautiful honesty about blame, memory and justice-seeking.  He says:

As much as I believe that some acts are unquestionably abominable, I reject the notion that they presuppose an evil agent, that is, some radically evil being who does terrible and causally inexplicable things to others....I do believe ... that the circumstances of a violent political conflict justify forgoing punishment, despite its strong communicative power concerning what is right and wrong. My stance is based on my endorsement of two central notions: what I label ‘rationality skepticism,’ which I have just sketched, and a very ample understanding of luck, which affects the way our plans arise and how our lives shake out.

Dr. Malamud Goti's essay is at one level an analysis of the different goals of a criminal prosecution versus a truth and reconciliation commission, and the necessary preconditions for the success of either project.  At another level, the essay is a personal (and humane) rumination on human nature.  We are all deeply flawed, and but for some "accidents" of circumstance, any one of us might be in the position of the accused wrongdoer or the alleged victim. 

Might a truth-and-reconciliation approach work outside the transitional justice context?  Is there a private law application for a similar framework? Imagine if Elizabeth Warren were the head of a Consumer Credit Truth and Reconciliation Commission, not an Assistant to the President and Special Advisor to the Secretary of the Treasury on the Consumer Financial Protection Bureau.  How about  a Truth and Reconciliation Committee for tax evaders? (As a tax lawyer, I can't see that one working very well.)   Other suggestions?

 

Counter-Terrorism

As part of its Concise Hornbook Series, West has just published Principles of Counter-Terrorism Law, co-authored by my South Texas colleague, Geoff Corn, and Notre Dame law professor Jimmy Gurule.  Here's a description:

The book examines the military and law enforcement responses to international terrorism. Subjects include the legal authority to use military force; determining when the law of armed conflict comes into force; the law of targeting and how this authority is applied to terrorist operatives; preventive detention; prosecution of terrorists by military commission; the legal framework for gathering counter-terrorism intelligence information; prosecuting terrorists and their sponsors; freezing terrorist assets; and civil liability for personal injury or death caused by acts of international terrorism.

With a copyright date of 2011, this has to be one of the first arrivals of the New Year.   Congrats to both parents co-authors!

Lee Buchheit, Icelandic Hero

Frequent Guest Lounger Lee Buchheit was in the news this week for his role in negotiating what may, or may not, be a final resolution to the Icelandic banking crisis – recall that Icelanders defeated the last proposal in a referendum last March.  Wow, doesn’t the Icelandic crisis seem like a million years ago? This BBC article and this Wikipedia page provide a refresher – the case is really quite fascinating.

From Icenews:

Iceland, the Netherlands and the UK have completed the latest draft of a deal to settle the ongoing Icesave dispute. Initial reaction to the deal is largely positive, although the Icelandic parliament has yet to vote on it.

The leader of the Icelandic negotiators, the American lawyer Lee Buchheit, began his introduction to the deal by saying that the main question the negotiators faced was how to make a payment contract for a debt if one will not know the final amount for several years. . . .

Initial reaction to the contract in Iceland seems to be positive and there is little doubt that the deal is better than the one rejected by voters this March. Credit for the new deal will inevitably be split. Some will laud President Olafur Ragnar Grimsson for vetoing the last contract and forcing the countries back to the negotiating table. Finance Minister Steingrimur J. Sigfusson will have reason to be proud of himself if the deal comes into force, as his position on Icesave has been consistent throughout and the time and patience he has invested in the dispute could well come to symbolise his political career. Finally there is Lee Buchheit, the American lawyer appointed by Sigfusson to lead the Icelandic delegation in the latest round of talks. His rational and hard-headed attitude have likely been seminal in the creation of the latest draft. (emphasis mine)

The deal is also discussed in Reuters, Businessweek, and other news sources.

 

Hyperlinking and Defamation in Canada

(Cross-posted from Madisonian.net)

With thanks to one of my Canadian students for forwarding this to me, it appears that the the Supreme Court of Canada will soon be deciding a case which will determine whether hyperlinks may constitute publication for the purposes of defamation law, such that a person who publishes a hyperlink would be potentially liable in defamation for defamatory content on the site to which she has linked.  Story here.

One interesting thing about the news report (that I hyper-linked to!) is that it notes that in the United States "hyperlinking is not considered publication".  I'm actually not aware that any American case has expressly decided this yet, although I'm not a defamation expert.  I know in cases like Perfect 10 v Google, courts have held that hyperlinking does not amount to copying content for the purposes of copyright law.  But does this answer the publication question in the defamation context?  It may be that the question is moot in the United States because many of those who hyperlink could be potentially covered by section 230 of the CDA if they are not regarded as being the "content provider" of the relevant information, although this analysis may have its limits depending on the facts.

Looking forward the Canadian decision on this one.

Liu Xiaobo

 

 

 

    In Absentia

 

 

 

photo credit: MSNBC

FCPA: The Video

My friend Mike Koehler (a/k/a "the FCPA Professor") was one of several witnesses who testified at yesterday's Congressional hearing on the enforcement of the Foreign Corrupt Practices Act.  Readers interested in the testimony can find the C-Span video here.  And newcomers to the topic may wish to bookmark Mike's blog.

Sally Struthers, Uncle Sam and Tax Discrimination Against International Adoptions

Sally Struthers (of Archie Bunker fame) used to urge U.S. television viewers to sponsor a deserving child in another part of the world.  For a few dollars per month, a child could receive crucial healthcare! Food for the entire family! A new lease on life!  The sponsor would receive a photo of a sponsored child or perhaps even a letter from time to time.  It was, however, a decidedly distance relationship – i.e., sponsorship, not adoption.  Furthermore, the “sponsorship” of “a child” was not earmarked for any one particular individual, but rather for a charitable organization, so transfers qualified for an income tax deduction.

For Americans who adopt (not sponsor) children born outside the United States, some form of tax benefit has been available since 1997.  In 2010, the Patient Protection and Affordable Care Act (HR 3590) and the companion Health Care and Education Reconciliation Act of 2010 (HR 4872) made massive changes to the health care law and tweaked the adoption tax credit. For tax years 2010 and 2011, the adoption tax credit is $13,170.  It’s refundable, too.

Those bills became law in March, but I hadn’t focused on the changes to the adoption tax credit (changes to the tax law can be sneaky like that, popping up in all sorts of bills).  Until I taught tax credits in my basic Federal Income Tax class this semester, I hadn’t realized that adoptions of children who are U.S. citizens or residents are treated more favorably for income tax purposes than are adoptions of non-U.S. citizens or residents. 

Over-simply stated, a tax credit is available for expenses related to an international adoption only if the adoption becomes final, but the same finality rule does not apply to expenses for a U.S. adoption. 

What might be the policy reasons for this tax discrimination?  Is it because significant tax revenue is at stake?  According to U.S. State Department figures (see here), the number of international adoptions has increased steadily.  In 1999, there were 167,369.  In 2000, there were 18,477.  In 2001, there were 19,237.  (See here.)  If there were a correlation between completed adoptions and failed adoptions, one could make a rough estimate of the number of taxpayers who could have benefitted from an adoption tax credit, but for the fact they could not or did not finalize their international adoption.

Alternately, is the different tax treatment of U.S. and international adoptions just one more example of attempts to influence social policy through the tax laws?  Maybe, but I wonder whether tax credits factor significantly into a decision to adopt a U.S. citizen versus a non-U.S. citizen.