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Technically Important: The Essential Role of Technical Corrections and How Congress Can Revive Them
Get PDFDrafting mistakes are an inevitable part of legislation being written by human institutions. In the context of tax, the complex and nuanced field is rife with opportunities for unintended glitches and mistakes to find their way into legislation. What happens when these mistakes result in the law not properly reflecting the intent of the drafters? In recognition of this reality, specifically in the realm of tax, Congress uses technical corrections to bring the letter of the law into line with the original drafter’s intent post-enactment. Technical corrections are meant to be uncontroversial, bipartisan, and revenue neutral. They are not intended to effect policy change, but instead allow policy that was already debated on and passed to function. Since tax is so complex, there is always a need for technical corrections following any type of large-scale tax bill. However, there is significant lag time between when these problems are identified and when technical corrections are enacted. Often, technical corrections are hijacked by lobbyists or other partisan interest as an opportunity for a second bite at the tax reform apple. This complicates their path through Congress significantly. This Note reviews three tools used to address post-enactments drafting errors: subregulatory guidance, scrivener’s error doctrine, and technical corrections. It then examines the impact of the political environment on the ability for technical corrections to be passed following three major tax bills: the 1986 Tax Reform Act, the Tax Cuts and Jobs Act, and the CARES Act. Based on these case studies, this Note asserts that partisan politics is a significant barrier to implementing technical corrections in a timely manner. This Note advances the procedure for passage of technical corrections should be better insulated from partisanship through use of streamline procedures. A viable technical correction process is an essential component in ensuring effective and productive tax administration
Protecting the Public Interest Through Intellectual Property Law: The Creative Approach of Chinese Judges
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A National International Affair: The Long Jurisdictional Reach of In re Irving H. Picard, Tr. For Liquidation of Bernard L. Madoff Investment
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Unsexing Breastfeeding
Get PDFFor half a century, constitutional sex equality doctrine has been combating harmful sex stereotypes by invalidating laws that treat women as caregivers and men as breadwinners. Yet decades after the constitutional sex equality revolution unsexed parenting roles, one area of parenting has escaped this doctrine’s exacting gaze: breastfeeding. In the wake of public health efforts in the 1990s to promote breastfeeding, a raft of laws were enacted—from insurance coverage mandates under the Affordable Care Act to workplace accommodations under the Fair Labor Standards Act—that provide substantial breastfeeding protections and benefits, but only to women. Although the sexed law of breastfeeding exists in stark contrast with the unsexed law of parenting, it has not been challenged or even noticed. This Article makes visible the sexed law of breastfeeding, exposes the tension it creates in the law of sex equality, and considers how to resolve this tension. Courts, lawmakers, and commentators assume that breastfeeding entails only the physical fact of lactation, and thus likewise assume that it affects only women. As an initial matter, transgender men and nonbinary persons can lactate, and thus it is questionable whether even laws that regulate lactation should be sexed. Still further, breastfeeding—a method of nutrition for eighty-five percent of infants at birth and sixty percent of infants at six months—encompasses a host of care work that does not turn on lactation. Fathers can, for example, buy a breastpump, take a breastfeeding class, choose a lactation consultant, or feed a baby a bottle of breastmilk. Because much breastfeeding care work can be separated from sex, the legal assignment of this care work to women is premised in sex stereotypes. Sexed breastfeeding law thus wrongly pigeonholes women for care and men for career in just the way that sex equality law has long tried to counter in other areas of parenting. After surfacing sex equality law’s distinct treatment of breastfeeding, this Article considers how to cohere the law’s treatment of breastfeeding with its treatment of the rest of parenting. The answer can be found in existing Supreme Court precedents teaching that sex-based rules must be carefully scrutinized, even in the presence of relevant physical sex differences, to ensure that the reliance on sex extends no further than necessary. Applying this jurisprudence to breastfeeding can promote not only equality between men and women, but also the equality of lesbian, gay, transgender, and nonbinary parents
Nonexclusive Functions and Separation of Powers Law
Get PDFThe Constitution’s text, structure, and history suggest that some governmental functions strictly and exclusively appertain to a particular branch, and to the exercise of a single vested power. Many governmental functions, however, are nonexclusive: their exercise has some combination of legislative, executive, and judicial characteristics and, as a result, can be exercised by different branches exercising different vested powers. This Article proposes to reorient our thinking around exclusive and nonexclusive governmental functions, and demonstrates how doing so clarifies many existing doctrines and debates in administrative and separation of powers law. This approach differs in important respects from standard functionalist and formalist accounts. If functionalism is concerned with identifying the “core” functions of the three branches, the reorientation proposed here would require identifying “exclusive” functions. The central question, however, is not “balance” or “aggrandizement” but whether an exercise of governmental power falls exclusively within a single vested power as a matter of text, structure, and history. And this approach rejects the proposition—often associated with formalism—that government functions must always be categorized as either legislative, executive, or judicial, and that there is little functional overlap among the three vested powers. To be sure, the Founders paid little attention to the functional overlap among the vested powers of government; but the idea of functionally overlapping government powers accurately reflects the nature of those powers and follows from the Constitution’s text, structure, and history. Although some scholars and judges have hinted at similar ideas, functional overlap has not been their focus, and conflation of powers and functions continues to plague judicial opinions and the scholarly literature. This Article seeks to reorient separation of powers law systematically toward exclusive and nonexclusive functions. Doing so clarifies many doctrinal puzzles, from the nature of legislative rules and judicial deference to “quasi” powers and nondelegation. Other insights also emerge, for example, with respect to James Madison’s suggestion that the Comptroller of the Treasury was neither executive nor judicial but “rather distinct from both, though it partakes of each,” and to the recently contested question of whether the Supreme Court can hear direct appeals from military courts