Usury Law, Payday Loans, and Statutory Sleight of Hand: Salience Distortion in American Credit Pricing Limits
By Christopher L. Peterson. Full text here. In the Western intellectual tradition usury law has historically been the foremost bulwark shielding consumers from harsh credit practices. In the past, the United States commitment to usury law has been deep and consistent. However, the recent rapid growth of the “payday” loan industry belies this longstanding American tradition.…
Continue ReadingAmending the Exceptions Clause
By Joseph Blocher. Full text here. Jurisdiction stripping is the new constitutional amendment, and the Exceptions Clause is the new Article V. But despite legal academia’s long-running obsessions with the meaning of constitutional amendment and the limits (if any) on Congress’s power to control federal jurisdiction, we still lack even a basic understanding of how these…
Continue ReadingThe Legacy of Bryan v. Itasca County: How an Erroneous $147 County Tax Notice Helped Bring Tribes $200 Billion in Indian Gaming Revenue
By Kevin K. Washburn. Full text here. The Supreme Court’s landmark 1976 decision in Bryan v. Itasca County is known within Indian law academia for the story Professors Philip Frickey and William Eskridge tell about the case: it reflects the dynamic and pragmatic interpretation of a termination-era statute to limit termination’s harmful legacy during a more…
Continue ReadingNote: Modernizing Medicare: Protecting America's Most Vulnerable Patients from Predatory Health Care Marketing Through Accessible Legal Remedies
By Elizabeth C. Borer. Full text here. Increasingly, senior citizens throughout the United States are victimized by aggressive and fraudulent health care marketing practices. Medicare Advantage and Part D prescription drug plans are health-benefit options approved by the federal government but sold and administered by private insurance companies. The programs were created as part of the…
Continue ReadingNote: How the Presumption Against Extraterritoriality Has Created a Gap in Environmental Protection at the 49th Parallel
By João C. J. G. de Medeiros. Full text here. Harmful pollutants are crossing the United States-Canada border as actors on either side of the boundary export environmental risk and harm through transboundary rivers. However, public international law has been unable to provide a remedy for the problem. Furthermore, efforts to address the problem in national…
Continue ReadingNote: No Free Parking: Obtaining Relief from Trademark-Infringing Domain Name Parking
By Elizabeth M. Flanagan. Full text here. Trademarks are indispensable tools for businesses and consumers. Although the Internet serves as an efficient means for distributing trademark-related information, it nevertheless provides a platform that can reduce the value of trademarks. In particular, commercial domain name parking—the practice of registering domain names and setting up placeholder websites filled…
Continue ReadingA New Vision of Public Enforcement
By Michael Waterstone. Full text here. Civil rights laws are not self-enforcing. Enforcement mechanisms, therefore, need to be studied as part of the larger debate on the form and direction of civil rights law. The current decline of the ability of the private attorney general to fairly and consistently enforce our civil rights laws strengthens the…
Continue ReadingJudicial Interpretation in the Cost-Benefit Crucible
By Jonathan R. Siegel. Full text here. Professor Adrian Vermeule’s new book, Judging Under Uncertainty, argues that while no one can empirically determine whether any net benefits arise from judicial use of legislative history or other interpretive methods that go beyond simple enforcement of plain text, such interpretive methods do impose substantial costs. Vermeule concludes,…
Continue ReadingState Habeas Relief for Federal Extrajudicial Detainees
By Todd E. Pettys. Full text here. Nearly 150 years ago, the United States Supreme Court rebuffed efforts by the Wisconsin Supreme Court to free an abolitionist and an unhappy teenaged soldier from federal confinement. Since that point in history, it has been widely understood that state courts lack the power to grant habeas relief to…
Continue ReadingNote: Toward a Robust Separation of Powers: Recapturing the Judiciary's Role at Sentencing
By Hans H. Grong. Full text here. Twenty years ago, Congress fundamentally changed the procedure for sentencing criminal defendants in the federal system by creating the United States Sentencing Commission to promulgate the Federal Sentencing Guidelines. The Guidelines were an attempt to increase transparency and decrease disparities in criminal sentences. Unfortunately, as the Supreme Court recognized…
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