Over the past two decades, credit cards have become increasingly available to low-income families as credit-card issuers have extended credit to riskier customers. Families that would not have been able to obtain credit cards as recently as a decade ago now receive a deluge of preapproved offers in the mail. The question of whether to reimpose usury restrictions lies at the heart of the debates over consumer credit regulation.
Debate over this question has continued for more than two decades, but until now no one has asked the affected families for their views about access to credit or what safety features they would welcome. In order to obtain a new perspective, Angela Littwin conducted in-depth interviews, supplemented by documental materials, with fifty low-income women. This Article presents original data from her study suggesting that usury regulation is an unnecessarily blunt instrument to provide protection for low-income families because low-income families themselves can identify credit-protection devices that would be more nuanced and more useful. This study suggests that there is indeed a problem of overconsumption, one of borrowers whose short-term spending exceeds that which they themselves would prefer in the long run. However, careful consideration of the perspectives of low-income consumers can better inform credit policies that are neither punitive nor paternalistic, but that instead enable borrowers to better resist the “temptation” many associate with credit cards and thereby better effectuate the low-income consumers’ long-term borrowing preferences.
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Trademark dilution is a cause of action for interfering with the uniqueness of a trademark. However, even while legislatures have enacted more dilution laws over the past half century, many courts have been reluctant to enforce these new laws because although trademark owners think dilution is harmful, they have had difficulty explaining why. Courts and commentators have now begun to use psychological theories, drawing on associationist models of cognition, to explain how a trademark can be harmed by the existence of similar marks even when consumers can readily distinguish the marks from one another.
Tushnet argues, however, that even though the cognitive theory of dilution is internally consistent and appeals to the authority of science, it does not rest on sufficient empirical evidence to justify its adoption. Moreover, she argues that the harms it identifies do not generally come from commercial competitors but from free speech about trademarked products. As a result, even a limited dilution law, in her view, should be held unconstitutional under current First Amendment commercial-speech doctrine. In the absence of constitutional invalidation, this Article argues that the cognitive explanation of dilution is likely to change the law for the worse, and that given the empirical and normative flaws in the cognitive theory, using it to fill dilution’s theoretical vacuum would be a mistake.
Torture has become a topic of pressing national concern. Legal and moral prohibitions against torture focus attention on institutional commitments to fundamental human dignity and liberty. In the eyes of some, engaging in torture, and its descriptively milder forms of cruel, inhuman, and degrading treatment, would be justified under conditions of national necessity. Two recent contributions to the growing literature on the supposed clash between civil liberties and national security, Eric Posner and Adrian Vermeule’s Terror in the Balance and Richard Posner’s Not a Suicide Pact, eschew the practice of principle, articulating instead consequentialist apologies on behalf of official actions ranging from the suppression of dissent to the practice of torture.
In their hands, constitutionally protected civil liberties become luxuries to be upheld only when conditions are thought normal but are to be substantially ignored when security threats are perceived as high. Each of these projects provides apologies on behalf of torture. Each of these projects also presents powerful arguments in favor of unilateral executive action in the face of national-security emergencies, but neither reflects the considered judgments of our constitutional tradition, which views with suspicion unchecked and unbalanced exercises of power.
Crocker argues that their arguments for abandoning principle in favor of consequences are misguided, and their proposed renewed emphasis on executive balancing has all the dangers of authoritarianism with none of the advantages of pragmatic institutional design. According to Crocker, what is presented as a fair-minded act of balancing, designed to provide an optimal equilibrium of liberty and security, under closer scrutiny becomes a rhetorical trope that obscures the underlying purpose of advancing security interests at the expense not only of civil rights and liberties, but of our constitutional tradition. Crocker takes the position that we should abandon the image of balancing security against something so broad as “civil liberties,” take seriously our constitutional tradition’s institutional design of checks, balances, and suspicion of unilateral action, and encourage the widest possible discussion of ways of harnessing both our pragmatist and constitutional traditions to create lasting structural solutions to the twin goals of fostering liberty and providing security.
Is it possible to use constitutional rights to protect the intrinsic value of nature? This Note looks at this question and argues why environmental rights should protect nature’s biodiversity and how this goal can be accomplished within a workable constitutional-rights framework.
Incorporating biodiversity protection into constitutional environmental rights will ensure that the rights will actually guarantee a truly healthy environment for present and future generations. This Note emphasizes the importance of biodiversity law in environmental protection, explains why a constitutional environmental right should be part of a comprehensive environmental protection regime, and outlines how an effective environmental right should be written to guarantee that it provides biodiversity protection while remaining individually enforceable. The Note goes on to present a framework for how courts, using current environmental-rights provisions, could incorporate biodiversity protection into current environmental-rights jurisprudence. The author concludes by arguing that current constitutional provisions on environmental rights should and can protect biodiversity and thus, albeit indirectly, protect the intrinsic value of the natural world in which we all live.
The Federal Trade Commission has become increasingly concerned that pharmaceutical companies owning patents that cover popular and expensive drugs are entering anticompetitive agreements with generic manufacturers who seek to produce generic versions of these drugs. In settlement agreements between branded- and generic-pharmaceutical firms, the branded-pharmaceutical company may agree to pay the generic manufacturer a sum of money in order to avoid litigation and delay or prevent the marketing of the generic product—agreements known as reverse-payment settlements.
Because the availability of generic substitutes for popular and expensive drugs decreases the cost of health care, the Senate Judiciary Committee has responded to the reverse-payment trend by considering the Preserve Access to Affordable Generics Act. While reverse-payment settlement agreements have the potential to be anticompetitive and harmful to consumers, this Note aims to demonstrate why the absolute ban on reverse payments introduced in the Senate Judiciary Committee is not the appropriate response. Namely, this Note addresses the reasons why an absolute ban on reverse payments is inappropriate in the context of pharmaceutical patents and may not improve consumer access to generic products.
