Volume 162, Issue 2 
January 2014
Articles

Selling State Borders

Joseph Blocher

The relationship between state sovereignty and state territory in the United States is more complex, interesting, and unstable than the reassuring familiarity of an American map might suggest. State borders move as a result of wandering rivers, interstate border compacts, and even newly discovered surveying errors. States and the federal government also buy and sell proprietary interests in vast tracts of public land, while effectively leasing their sovereign functions to private parties. This Article argues that those threads—mobile state borders and active markets for public land and sovereign functions—can and should be woven together to create an interstate market for sovereign territory.

The absence of a market for state borders is puzzling for many reasons: the market has a historical pedigree, would not face insurmountable legal barriers, and could help solve a variety of pressing problems. Among other things, such a market might facilitate the resolution of interstate border disputes, which remain surprisingly common. North and South Carolina, for example, are currently adjusting their border southward to correct a two hundred-year-old surveying error. This change will be costly for the thirty affected households, whose residents will have to pay new taxes, change car insurance and schools, and might well find it harder to dance the shag with tar on their heels.8 Simple Coasean bargaining suggests that if such costs outweigh the benefits of correcting the surveying error, then the Old North State should simply sell the equivalent of a quitclaim, thus leaving the border where it has always been in practice.

Other utility-enhancing deals are not hard to imagine. States facing bankruptcy could raise revenue by selling territory to wealthier neighbors— an idea that has already been floated at the international level—while others might capture gains in metropolitan areas that straddle state borders but could be more efficiently administered by a single state. One scholar has suggested that Camden and Philadelphia be joined; a side payment to or from New Jersey could help bring that about. Even holding aside the financial gains, an active interstate market for sovereign territory could encourage useful competition between states by allowing the “laboratories” to come to the people, rather than requiring the people to go to the laboratories. The next time Killington, Vermont, votes to join New Hampshire because it prefers the latter’s tax system, or Martha’s Vineyard votes overwhelmingly to leave Massachusetts in response to unfavorable redistricting in the state legislature, compensation could facilitate the moves (or forestall them, depending on which state is willing to pay). Sales of state borders could even strengthen state identity in areas where residents’ identities are more closely tied to a state other than the one in which they live. If, for example, wealthy residents of Greenwich, Connecticut—many of whom earned their fortunes in Manhattan—would prefer to be New Yorkers, why not let them buy their way out?


The First Disestablishment: Limits on Church Power and Property Before the Civil War

Sarah Barringer Gordon

The rights and responsibilities of religious institutions are hotly debated in the early twenty-first century. Liberal separationists argue that religious organizations should be subject to secular laws regarding labor, health care (including access to birth control), child protection, and more. Their opponents counter that the ideals of “church autonomy” or “the freedom of the church” exempt religious organizations from legal, administrative, or legislative oversight. The standoff is exacerbated by the opposing interpretations of history on offer. Former presidential candidate, talk show host (and historian) Newt Gingrich has called the Affordable Care Act’s requirement that all secular employers—regardless of their owners’ religious affiliations and convictions—provide birth control insurance coverage for employees “the most outrageous assault on religious freedom in American history” and asserted that “every time you turn around the secular govern- ment is shrinking the rights of religious institutions in America.”

From the other side of the spectrum, the invocation of history is equally strident. For example, Americans United for Separation of Church and State has battled against the claim that the government has undermined church autonomy. From this group’s perspective, strict separation of church and state is “good for America” and “good for religion” because it prohibits government involvement with religious organizations. American history, they argue, demonstrates that Presidents and right-thinking Americans alike have always supported their interpretation of disestablishment.

This back-and-forth highlights the sharply differing views among activists, scholars, and politicians regarding the tradition of special deference (or lack thereof) given to religious organizations. The Hobby Lobby case, set for argument at the Supreme Court in early spring 2014, is just the latest incarnation of these battles. The question is as old as the nation, however. The rights of individuals versus organizational rights have been essential to the development of the law of religion in America. The place of religious organizations was keenly debated as a key component of disestablishment. Yet we know almost nothing about the experience of such organizations in our nation’s history.


The Next Generation Communications Privacy Act

Orin S. Kerr

In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to regulate government access to Internet communications and records. ECPA is widely regarded as outdated, and ECPA reform is now on the Congressional agenda. At the same time, existing reform proposals retain the structure of the 1986 Act and merely tinker with a few small aspects of the statute. This Article offers a thought experiment about what might happen if Congress were to repeal ECPA and enact a new privacy statute to replace it.

The new statute would look quite different from ECPA because overlooked changes in Internet technology have dramatically altered the assumptions on which the 1986 Act was based. ECPA was designed for a network world with high storage costs and only local network access. Its design reflects the privacy threats of such a network, including high privacy protection for real-time wiretapping, little protection for noncontent records, and no attention to particularity or jurisdiction. Today’s Internet reverses all of these assumptions. Storage costs have plummeted, leading to a reality of almost total storage. Even U.S.-based services now serve a predominantly foreign customer base. A new statute would need to account for these changes.

This Article contends that a next generation privacy act should contain four features. First, it should impose the same requirement on access to all contents. Second, it should impose particularity requirements on the scope of disclosed metadata. Third, it should impose minimization rules on all accessed content. And fourth, it should impose a two-part territoriality regime with a mandatory rule structure for U.S.-based users and a permissive regime for users located abroad.


Comments

Read My Lipsky: Reliance on Consent Orders in Pleadings

Kevin Levenberg

Consent orders are used to resolve government enforcement actions through a court-approved settlement. Although consent orders often include detailed factual and legal findings, defendants typically deny or neither admit nor deny those findings. Nevertheless, some private plaintiffs have relied extensively on findings from consent orders to plead claims that piggyback off of enforcement actions. Whether private plaintiffs may properly rely on consent orders in their pleadings is the subject of this Comment.

Many district courts cite a Second Circuit opinion from 1976, Lipsky v. Commonwealth United Corp., for the proposition that allegations derived from consent orders must be struck as “immaterial” under Rule 12(f) of the Federal Rules of Civil Procedure. Other courts have also held that plaintiffs cannot satisfy the duty of independent investigation under Rule 11(b)(3) if they rely on only consent orders as sources of information. More recently, however, some courts have challenged the reasoning of Lipsky and permitted plaintiffs to derive allegations from consent orders.

This Comment clarifies existing law governing reliance on consent orders. It argues that Rules 11(b)(3) and 12(f)—and even the Lipsky decision if properly construed—permit plaintiffs to rely on consent orders as sources of factual information. By relying on consent orders to allege facts, plaintiffs appropriately signal that they believe the allegations are true and that admissible evidence in support of the allegations will likely be found after further investigation or discovery.

The rule proposed in this Comment, however, may unsettle regulatory policy that favors negotiated settlements of enforcement actions. If courts uniformly permit private plaintiffs to rely on consent orders, then defendants may have fewer incentives to settle enforcement actions. This Comment invites further discussion regarding the policy implications of that rule.


Patent Nonuse and Technology Suppression: The Use of Compulsory Licensing to Promote Progress

Neil Tyler

The U.S. Supreme Court has consistently and adamantly held that patents do not require patentees to use or commercialize their inventions. Rather, patents simply grant inventors the right to exclude others from using or producing their inventions. That exclusive right, once granted, cannot be taken away because of a right holder’s failure to work the patent. Great societal harm results, however, when patentees fail to commercialize their patents or deliberately and strategically suppress technologies purely for financial gain.

This Comment argues that utilizing compulsory licensing to combat patent nonuse and technology suppression can help to better achieve the primary goal of the Intellectual Property Clause of the U.S. Constitution. Compulsory licensing that compensates inventors through reasonable and marketplace-based royalty rates will ensure that inventors continue to develop and disclose their research and discoveries to the public. Furthermore, by weakening intellectual property rights on a limited scale, Congress can ensure that patents are made available to the highest-value users who can best use these patents to achieve efficient societal innovation and progress. This Comment therefore questions why patentees are not required to at least make good faith efforts to practice their patents.


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