Note: The Gift That Keeps on Taking: How Federal Banking Laws Prevent States from Enforcing Gift Card Laws
By Y. Angela Lam. Full text here. Every year, consumers purchase about $80 billion in gift cards, only to lose $8 billion loaded on those cards because of expiration dates and service fees that deplete the value of the cards. State legislators have tried to protect consumers by passing laws that would prohibit or limit the…
Continue ReadingNote: Gagging on the First Amendment: Assessing Challenges to the Reauthorization Act's Nondisclosure Provision
By Kyle Hawkins. Full text here. In September, 2007, a federal court struck down the nondisclosure provisions of the Electronic Communications Privacy Act (ECPA), which governed the use of national security letters (NSLs). While civil liberties groups praised the decision, the FBI mourned the loss of a crucial tool in its antiterrorism investigations. Indeed, the FBI…
Continue ReadingThe Quiet Revolution Revived: Sustainable Design, Land Use Regulation, and the States
By Sara C. Bronin. Full text here. Thirty-seven years ago, a book called The Quiet Revolution in Land Use Control argued that states would soon take over localities’ long-held power over land use regulation. In the authors’ view, this quiet revolution would occur when policymakers and the public recognized that certain problems—like environmental destruction—were too big…
Continue ReadingGenerous to a Fault? Fair Shares and Charitable Giving
By Miranda Perry Fleischer. Full text here. Charities play a vital role in our society. In addition to enhancing pluralism, they meet many societal needs more efficiently, creatively, and effectively than government alone. Charities aid our poor, teach our youth, improve our health, comfort us spiritually, and enrich our cultural lives. Given the charitable sector’s importance…
Continue ReadingFighting Women: The Military, Sex, and Extrajudicial Constitutional Change
By Jill Elaine Hasday. Full text here. The Supreme Court in Rostker v. Goldberg (1981) upheld male-only military registration, and endorsed male-only conscription and combat positions. Few cases have challenged restrictions on women’s military service since Rostker, and none have reached the Supreme Court. Federal statutes continue to exclude women from military registration and draft eligibility,…
Continue ReadingThe Rules Enabling Act and the Procedural-Substantive Tension: A Lesson in Statutory Interpretation
By Martin H. Redish & Dennis Murashko. Full text here. For more than seven decades since the passage of the Rules Enabling Act, courts and commentators have struggled to define the boundaries of what rules the Supreme Court can and cannot promulgate. We undertake here to explain that lack of success and at the same time…
Continue ReadingEssay: The Constitution in the National Surveillance State
By Jack M. Balkin. Full text here. During the last part of the twentieth century the United States began developing a new form of governance that features the collection, collation, and analysis of information about populations both in the United States and around the world. This new form of governance is the National Surveillance State. In…
Continue ReadingNote: When the Invention Is an Inventor: Revitalizing Patentable Subject Matter to Exclude Unpredictable Processes
By Peter M. Kohlhepp. Full text here. Abstract inventions continue to confound the patent system. Several recent Federal Circuit decisions have only added to the uncertainty surrounding limitations on the type of inventions that may be patented. Computer algorithms capable of independent, artificial creativity provide a useful case study, revealing weaknesses in the law governing patentable…
Continue ReadingThe Mythical Divide Between Collateral and Direct Consequences of Criminal Convictions: Involuntary Commitment of "Sexually Violent Predators"
By Jenny Roberts. Full text here. For many people convicted of crimes, the case does not end when the sentence is over. Instead, it follows them out of the courthouse or prison doors in the guise of “collateral,” or non-penal, sanctions. The last several decades have seen unprecedented expansion in the number and severity of the…
Continue ReadingHorizontal Federalism
By Allan Erbsen. Full text here. This Article constructs frameworks for analyzing federalism’s undertheorized horizontal dimension. Discussions of federalism generally focus on the hierarchical (or vertical) allocation of power between the national and state governments while overlooking the horizontal allocation of power among coequal states. Models of federal-state relations tend to treat the fifty states as…
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