The Northwestern Law Review Colloquy is running an interesting-so-far series on United States v. Windsor. The first two parts of the series are up, and both discuss post-DOMA choice of law issues.
First is DOMA’s Ghost, an essay by Brad Greenberg on copyright reversionary interests. The Copyright Act is one of the few federal statutes that contains an explicit marital choice-of-law rule — one that looks to the author’s domicile at the time of his/her death.
Greenberg notes that this rule is inconsistent with the Obama Administration’s general approach to the post-DOMA choice-of-law problem, which is to use the state of celebration wherever possible. He also argues that it would be better to have a rule whose scope would be known at the time of authorship (like the place-of-celebration rule). He suggests statutory reform. While we’re at it, I’d suggest statutory reform of the social-security choice of law rule. Even better would be if Congress would just propose a uniform marital choice-of-law standard for federal law generally . . .
Second is The Moonscape of Tax Equality, by Anthony Infanti, a paper on post-DOMA tax issues. Tax marital law is complicated, and attentive readers will recall that I posted some (partly skeptical) thoughts about the IRS’s marital choice of law guidance, which says that marriages will be recognized “as long as they were married in a state whose laws authorize the marriage of two individuals of the same sex,” regardless of where they move later. Infanti also has some criticisms, that overlap partly (but not entirely) with mine.
— For one thing, Infanti worries that the IRS guidance is vague about so-called “evasive” marriages — marriages where the couple lives in an anti-same-sex marriage state but travels to a permissive state to get married. He says “The [...]