VOLUME 167, ISSUE 4 march 2019

Articles

To overcome congressional gridlock, lawmakers have developed devices that, under certain conditions, provide easier paths to policy change. Procedural mechanisms may eliminate the threat of filibuster and other barriers to legislating. Laws may prompt Congress to act through sunset dates, penalties like sequestration, or other undesirable policy outcomes. Alternatively, the legislative product itself may spontaneously update without further action by Congress, a category I label “dynamic legislation.” For instance, during consideration of recent tax legislation, lawmakers proposed that certain tax cuts be automatically ratcheted down if the bill failed to generate sufficient economic growth and that delayed tax increases not go into effect if revenue hurdles were met.

Of these various tools, I argue that dynamic legislation has the most potential to combat legislative inertia while also meeting the challenges of the democratic process. Specifically, dynamic legislation outperforms the other tools because it leverages the resources of the administrative state without succumbing to excessive deference, it does not impermissibly entrench the current majority, and it is not as susceptible to the pathologies of the political economy and budget processes. Dynamic legislation also provides a mechanism by which Congress can evaluate itself, automatically adjusting laws depending on how well they are performing. Dynamic legislation holds particular promise in areas, like fiscal policy, where these concerns are acute, and where its design is not too costly.

Once upon a time, there existed a clear nexus between property and privacy. Protection of property rights was an important safeguard against intrusions of the privacy interests of owners both by the government and by private actors. Gradually, however, the symbiotic relationship between privacy and property has been forgotten by scholars and policymakers and fallen into oblivion.

In this Article, we seek to restore the centrality of privacy in property law by making two novel contributions—one descriptive and one normative. Descriptively, we show that concerns for privacy inform, at times implicitly, many important property doctrines. Indeed, we show that privacy provides an indispensable compass for understanding and uniting diverse and seemingly unrelated property rules. Second, we propose how privacy concerns can be better and more explicitly incorporated into property law and policy. We show that attention to privacy can reinvigorate scholarly thinking about property and lead to new solutions to longstanding problems.

Individuals should have the option to waive their Second Amendment rights to keep and bear arms by adding their names to the National Instant Criminal Background Check System. Every year, over 20,000 Americans kill themselves with firearms. We present a low‐cost and constitutional system that could, in just a few years, easily save thousands of lives as people with mental health or other recurring problems, during moments of clarity, rationally opt to restrain their future selves. Moreover, our system, which includes the option of providing email notifications of an individual’s waiver to third parties, can promote a marketplace of informed association.

Just as Heller emphasizes the Second Amendment right to keep and bear arms as furthering the “core” individual right to self‐defense, credibly communicated waiver of Second Amendment rights can facilitate the self‐defense choices of individuals to limit association with those who may possess weapons. Forcing Second Amendment interests to contend with First Amendment associational interests can thus enhance the joint liberty of those seeking to best defend themselves. We provide the results of two surveys showing that close to a third of the general population and more than forty percent of those with previously diagnosed mental health concerns indicated that they would be willing to add their name to a “No Guns” list.

Comments

In the celebrated decision of Obergefell v. Hodges, the Supreme Court held that same‐sex couples have a constitutional right to marry that cannot be infringed by state law bans on marriage equality. Post‐Obergefell, states around the country are grappling with what the mandate means for parentage and how their family law regimes should be adjusted in light of the increasing diversity in today’s family structures. Variation in whether states presume both partners in a same‐sex relationship to be the legal parents of their child and, if not, whether a second‐parent adoption is available to establish the parentage of the nonbiological parent implicates significant uncertainty for these couples. Entitling the parentage of same‐sex couples as reflected in the birth certificate of the child to interstate recognition on the basis that the birth certificate is a “record” within the ambit of the Full Faith and Credit Clause would provide greater protection of their legal status.

The birth certificate solution is both easily implementable and doctrinally supportable in light of various principles reflected in the Supreme Court’s recent family law jurisprudence. The interests at stake are significant for both the same‐sex couple and their child, and entitling the parentage listed in the birth certificate to full faith and credit recognition would provide greater immediate protection to the legal status of these couples.

In TC Heartland v. Kraft Foods Group Brands, the Supreme Court reaffirmed the principle that no part of the general venue statute, 28 U.S.C. § 1391, could supplement the patent venue statute, 28 U.S.C. § 1400(b). Yet, in Brunette Machine Works v. Kockum Industries, the Court nevertheless held that former § 1391(d), which allowed suits against aliens in any district, applied in patent cases because aliens simply lacked all venue defenses. But then, in 2011, Congress passed the Venue Clarification Act, amending § 1391 to affirmatively give a venue defense to permanent resident aliens.

This entangled trifecta of venue law sources leaves open several important questions about the current state of patent venue: Does Brunette contravene TC Heartland? Does the Venue Clarification Act overrule Brunette? Does TC Heartland forbid applying the Venue Clarification Act to patent suits? This Comment reconciles these sources of law and extricates them from their current mire. Ultimately, this Comment argues that Brunette and TC Heartland do not conflict, that Brunette must be tweaked to accommodate the Venue Clarification Act, and that select provisions of the Venue Clarification Act do, in fact, apply to the patent venue statute.

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