Article

How NFIB v. Sebelius Affects the
 Constitutional Gestalt

Lawrence B. Solum
This Essay examines the effects of the Supreme Court‘s decision in National Federation of Independent Business v. Sebelius, in which the Court addressed the constitutionality of the Affordable Care Act. More precisely, what effects will NFIB have on the law—especially constitutional law? We can divide these effects into two general categories, direct and indirect. “Direct legal effects” are those created by and through legal norms. They include the operation of…
Article

Sovereignty Mismatch and the New Administrative Law

David Zaring
In the United States, making international policymaking work with domestic administrative law poses one of the thorniest of modern legal problems—the problem of sovereignty mismatch. Purely domestic regulation, which is a bureaucratic exercise of sovereignty, cannot solve the most challenging issues that regulators now face, and so agencies have started cooperating with their foreign counterparts, which is a negotiated form of sovereignty. But the way they cooperate threatens to undermine…
Article

Taxing Polygamy

Samuel D. Brunson
The tax law treats married and unmarried taxpayers differently in several respects. Married persons, for example, can file and pay their taxes as a unified taxpayer, with rates that are different than those that apply to unmarried taxpayers. This different treatment of married persons has elicited criticism over the years. Some of the more salient criticisms include that married persons do not necessarily function as an economic unit, that joint…
Comment on Recent Decisions

The Proper Meaning of “Proper”:
 Why the Regulation of
Intrastate, Non-Commercial
Species Under the Endangered
 Species Act Is an Invalid Exercise
 of the Commerce Clause

Kevin Simpson
This Note argues that the ESA‘s regulation of purely intrastate, non- commercial species is an invalid exercise of the Commerce Clause. Reviewing courts have reached the opposite conclusion via two doctrinal avenues: (1) by finding that the species in question bore “a substantial relation to interstate commerce” in satisfaction of the Court‘s framework set forth in United States v. Lopez, or (2) by holding that the species was an “essential…
Note

FICA Taxation of Post-Employment
 Benefits: A Statutory Puzzle and
 Sociopolitical Conundrum

Amanda Stein
In the wake of a brief but contentious span that has included a presidential election, fiscal cliff and government shutdown, the probability of a congressional answer to an important question that is sociopolitically confounding—but not operationally urgent—was remote. Instead, it is the Supreme Court that will take up the issue at hand, at its heart a question of statutory interpretation: whether severance payments are “wages” for purposes of the FICA…
Commentary

Salvaging the 2013 Federal Law 
Clerk Hiring Season

Carl Tobias
Ten years ago, the judiciary instituted the Federal Law Clerk Hiring Plan, an employment system meant to regularize hiring in which most circuit and district court jurists voluntarily participated. Throughout the succeeding decade, this process operated effectively for innumerable trial judges, but functioned less well for appellate jurists. In early 2013, the U.S. Court of Appeals for the District of Columbia Circuit revealed that all its members “will hire law…