Generous 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…
Continue ReadingEssay, Protecting Financial Markets: Lessons from the Subprime Morgage Meltdown
By Steven L. Schwarcz. Full text here. Why did the recent subprime mortgage meltdown undermine financial-market stability notwithstanding the protections provided by market norms and financial regulation? This Essay attempts to answer that question by identifying anomalies and obvious protections that failed by examining hypotheses that might explain the anomalies and failures. Although some of the…
Continue ReadingNote: Presuming Innocence: Expanding the Confrontation Clause Analysis to Protect Children and Defendants in Child Sexual Abuse Prosecutions
By Anna Richey-Allen. Full text here. When a child is suspected of being sexually abused, child advocacy centers provide a supportive environment where social workers, doctors, and psychologists may assess the child’s needs. Forensic interviews are a specialty of the centers. The interviews are often video recorded, and the videotape may later be introduced into evidence.…
Continue ReadingNote: Sweetening the Deal: Strengthening Transnational Bribery Laws Through Standard International Corporate Auditing Guidelines
By Timothy W. Schmidt. Full text here. Despite the existence of laws on the books against transnational bribery in most developed nations, prosecution of the crime is oftentimes half hearted. This Note explores a number of options to promote the punishment of corrupt businesses that bribe foreign officials, even when the prosecution of these businesses might…
Continue Reading