Current Issue

  • Volume 64,
  • Number 1 -
  • October 2014


Choosing Not to Choose
Cass R. Sunstein

Choice can be an extraordinary benefit or an immense burden. In some contexts, people choose not to choose, or would do so if they were asked. In part because of limitations of “bandwidth,” and in part because of awareness of their own lack of information and potential biases, people sometimes want other people to choose for them. For example, many people prefer not to make choices about their health or retirement plans; they want to delegate those choices to a private or public institution that they trust (and may well be willing to pay a considerable amount to those who are willing to accept such delegations). This point suggests that however well accepted, the line between active choosing and paternalism is often illusory. When private or public institutions override people’s desire not to choose and insist on active choosing, they may well be behaving paternalistically, through a form of choice-requiring paternalism. Active choosing can be seen as a form of libertarian paternalism, and a frequently attractive one, if people are permitted to opt out of choosing in favor of a default (and in that sense permitted not to choose); it is a form of nonlibertarian paternalism insofar as people are required to choose. For both ordinary people and private or public institutions, the ultimate judgment in favor of active choosing, or in favor of choosing not to choose, depends largely on the costs of decisions and the costs of errors.


Windsor and Its Discontents: State Income Tax Implications for Same-Sex Couples
Haniya H. Mir

In United States v. Windsor, the Supreme Court struck down section three of the federal Defense of Marriage Act. Shortly thereafter, the Internal Revenue Service issued a ruling under which all married same-sex couples will be treated as married for federal tax purposes. The IRS Ruling raised a host of state taxation issues for lawfully married same-sex taxpayers residing in nonrecognition states, given that nearly all states conform to the federal tax system to some degree so as to minimize taxpayers’ calculations, record-keeping, and compliance burdens.

This Note explores the impact of the post-Windsor IRS Ruling on the taxation of same-sex couples in states that do not recognize same-sex marriage yet require taxpayers to reference their federal tax returns when completing their state tax returns. It details the tax filing approaches adopted by affected states and the disparate state and federal tax treatments faced by the majority of married same-sex couples domiciled in a nonrecognition state. Finally, this Note concludes with a discussion of the constitutional- and administrative-law challenges that married same-sex taxpayers can raise against state tax policies that result in discriminatory treatment of same-sex marriage at the state level.

First Rejection, Then Dismissal: Reconsidering American Pipe Tolling for Securities Class Actions
Christine E. Turner

In American Pipe & Construction Co. v. Utah, the Supreme Court created a class action tolling rule, which halted the running of a statute of limitations for all asserted class members of an antitrust suit during the court’s certification of the class. Although the Court focused its analysis on the policy behind Federal Rule of Civil Procedure 23, courts purporting to apply the tolling rule have since extended their analyses to such issues as whether the tolling rule is equitable or legal in nature and whether the tolling rule also applies to statutes of repose. Most recently, the Second Circuit held in Police & Fire Retirement System of Detroit v. IndyMac MBS, Inc. that the statute of repose of § 13 of the Securities Act cannot be tolled.

This Note examines the Supreme Court’s reasoning in American Pipe and the distinct policies behind statutes of repose, arguing that the policies motivating § 13’s statute of repose are not disserved if the American Pipe tolling rule is extended to circumstances factually similar to those faced by the plaintiffs in IndyMac. Rather, tolling under this limited circumstance is supported by the reasoning in American Pipe, the policies behind Rule 23, and the private-securities-litigation framework more generally.