Public Laws and Private Lawmakers

Kimberly N. Brown
The Obama Administration’s “Clean Power Plan” for addressing industrial carbon emissions is controversial as a matter of environmental policy. It also has important constitutional implications. The rule was initially crafted not by officers or employees of the Environmental Protection Agency, but by two private lawyers and a scientist with industry ties. Private parties operate extra-constitutionally, and no existing legal doctrine tethers constitutional scrutiny to the nature of the power delegated…

Reframing Similarity Analysis in Copyright

Kevin J. Hickey
Copyright law lacks a coherent method to determine non-literal infringement. The core inquiry, “substantial similarity,” purports to assess whether two works are so alike that an accused work infringes the original. Substantial similarity is a fundamental limit on the scope of copyright, but it is plagued by confusion and governed by a series of arcane tests that differ in each circuit. Even more troubling, courts lack a consistent method to…

Pension De-risking

Brendan S. Maher and Paul M. Secunda
The United States is facing a retirement crisis, in significant part because defined benefit pension plans have been replaced by defined contribution retirement plans that, whatever their theoretical merit, have left significant numbers of workers unprepared for retirement. A troubling example of the continuing movement away from defined benefit plans is a new phenomenon euphemistically called “pension de-risking.” Recent years have been marked by high-profile companies engaging in various actions…

The Declining Allure of Being “American” and the Proliferation of Corporate Tax Inversions: A Critical Analysis of Regulatory Efforts to Curtail the Inversion Trend

John C. Hamlett
In the realm of tax policy, within which there is rarely broad-based consensus, there are few topics as polarizing as corporate tax inversions. An inversion is a paper transaction in which a US corporation reincorporates abroad to realize strategic tax benefits, without actually transplanting its operations overseas. These transactions necessarily reduce the US corporate income tax base, because although an inverted corporation is still taxed the same amount on income…

The Praetorians: An Analysis of U.S. Border Patrol Checkpoints Following Martinez-Fuerte

Jesus A. Osete
In the late seventies, the United States Supreme Court held in United States v. Martinez-Fuerte that the United States Customs and Border Protection (“CBP”) could constitutionally operate checkpoints within the United States for the purpose of conducting brief, routine questioning in order to verify a person’s citizenship and immigration status. The case was fueled by efforts to curtail the flow of undocumented immigrants into the United States from Mexico. Some…

Gay Marriage and the Problem of Property

Andrea B. Carroll and Christopher K. Odinet
The Supreme Court’s gay marriage decision in Obergefell has been hailed in almost all corners as a milestone in American jurisprudence. From topics as varied as adoption and taxes, a myriad of rights have now descended upon gay couples as a result of the Court’s ruling. In this Commentary, we explore the little discussed downsides of the decision when it comes to the property rights and debts of the spouses.…