The Fair Credit Reporting Act and the Consumer Credit Information System: Why Errors Persist and Furnishers Should Play a Greater Role in Ensuring Accuracy

By Paul T. Lyons

The consumer credit reporting system touches the lives of hundreds of millions of Americans. Indeed, it is difficult for an American consumer to avoid becoming the subject of a credit report. Unless consumers are very wealthy, they will need to access credit to buy a house, attend college, or simply finance everyday purchases through a credit card. Any of these transactions will begin to generate a credit history and enter the consumer into the credit information system. Consumers’ credit histories then follow them throughout their public and economic lives, affecting the availability of credit and the terms on which it is extended for home loans, car loans, credit cards, and other consumer financial products. Credit history may also impact the availability of employment opportunities, insurance policies, and housing. A negative credit evaluation can cause consumers to be excluded from economic and social opportunities. Specifically, about one in twenty consumers are affected by an error that substantially interferes with their ability to access credit, as will be discussed infra in Section I.C. Additionally, while the effects on other consumers might be marginal, they are nevertheless significant, especially when considered in the aggregate. Negative credit histories raise the cost of acquiring money, resulting in greater overall debt burdens for consumers seeking financial products…

Constitutional Challenges to Voter Registration Deadlines: State Constitutions as a Tool for Voting Reform

By Dylan O’Sullivan

In twenty-nine states, residents are denied the right to vote on Election Day if they fail to preregister days—or even weeks—before the election. Such denials are the result of state-imposed voter registration deadlines, which, by one estimate, prevented 3 to 4 million eligible voters from registering for the 2012 presidential election. In many instances, disenfranchisement was the purpose of these policies—designed to keep Black, poor, and immigrant voters from participating in the democratic process. Purposeful or not, the negative impact on voter participation is significant: voter registration deadlines unnecessarily impede millions of eligible voters from exercising the most fundamental right in a democratic society. Eliminating these deadlines and allowing voters to register at the polls on Election Day is one of the most effective ways to improve voter participation. Not only is Election Day registration a good policy, but the texts of many state constitutions compel it…

The Supreme Court Reinforces Barriers to Court Access: Cases from the 2019–2020 Term

By Jane Perkins, Sarah Somers & Abigail Coursolle

As it did worldwide, the COVID-19 pandemic left its mark on the Supreme Court’s 2019–2020 Term. In March and April of 2020, the Court canceled scheduled oral arguments, something it had not done since the influenza pandemic in October of 1919. For the first time in its history, the Court heard cases by telephone conference call, rather than in-person, and allowed live audio broadcasts of those arguments. Already known for deciding relatively few cases under Chief Justice Roberts’s leadership, the Court issued only fifty-three signed opinions after briefing and oral argument, the fewest since 1862. The presence of two Justices loomed over the Term—that of the Chief Justice, who voted with the majority in ninety-seven percent of all the decisions and dissented only twice; and that of Justice Ginsburg, whose illness prevented her from participating in some of the arguments during this, her last, Term . . .

One Nation, Two Teams: The U.S. Women's National Team's Fight for Equal Pay

By Sarah Pack, Thomas A. Baker III, & Bob Heere

The United States Women’s National Team (USWNT) has achieved unprecedented success in women’s soccer. Winners of four (out of only eight total) Fédération Internationale de Football Association (FIFA) Women’s World Cups and four (out of only six total) Olympic gold medals, the USWNT has consistently performed at the most elite levels of the sport while garnering significant interest from a country whose population is relatively ambivalent towards the world’s most popular sport. The United States Men’s National Team (USMNT), on the other hand, has never won a World Cup. While the team has enjoyed a strong run of qualification and tournament play, often advancing to the knockout rounds, the USMNT failed to qualify for Russia 2018, the tournament’s most recent iteration. The relative on-field success of the USWNT has also benefited the bottom line of the United States Soccer Federation (USSF, the “Federation,” or “U.S. Soccer”)…

The War Powers Resolution and the Concept of Hostilities

By Erica H. Ma

These steps that Congress took are significant. A provision of the War Powers Resolution of 1973 (WPR) allows Congress to direct the President to remove U.S. armed forces from “hostilities,” and the Iran resolution marks only the second time in history that measures invoking the WPR to limit the President’s authority to use force have passed both the House and Senate. The first instance occurred in April 2019, only a year prior, when the House and Senate passed resolutions calling for an end to U.S. support for the Saudi-led coalition in Yemen’s bloody civil war. U.S. involvement at the time had included arms sales, military advisers, intelligence, and mid-air refueling of Saudi aircraft. The Trump Administration, maintaining that U.S. troops were not involved in “hostilities” in Yemen, argued that the WPR did not require the withdrawal of troops. Ultimately, Congress was unable to muster two-thirds majority support, and the resolution died after Trump’s veto…

Rot and Renewal: The 2020 Election in the Cycles of Constitutional Time

By Jack M. Balkin

In The Cycles of Constitutional Time, I describe the American constitutional system in terms of cycles of expansion and contraction, rise and fall, decay and renewal. By speaking in terms of cycles, I do not mean to suggest exact repetition, nor do I mean to suggest covering laws of history. Things will not happen the same way that they happened in the past, but, as Mark Twain is supposed to have said, although history may not repeat itself, it often does rhyme…

Pandemic Preemption: Limits on Local Control Over Public Health

By David Gartner

As COVID-19 silently spread across the globe, the earliest effective responses in the United States were driven by localities. However, as the pandemic progressed, many of the most impacted cities were barred from taking comprehensive action in response to the pandemic. The broader trend of state preemption of local public health interventions accelerated as a result of COVID-19 and left many localities effectively defenseless against an invisible enemy…

Lawyering in the Age of Lynching

By Brigitte Meyer

Lawyers concerned with justice must confront the social environment in which their legal decisions are made. This was never clearer than in the case of those tasked with defending Black men accused of capital crimes in the lynching-era South. There, formal law stood in tension with what some have termed underlaw: the belief that the benefits of law and the social contract belong only to some, namely white “persons,” and that those benefits depend on the subordination of others, particularly Black “subpersons.” Under this concept, Black racial subjugation stands not in opposition to America’s law, social contract, or ideals but as their necessary foundation. As formal law began to step away from explicit racial subordination by the early twentieth century, the requirements of law and the demands of underlaw diverged. Fearful that law would no longer ensure Black racial subjugation, whites often resorted to public acts of torture and murder as a means of reinforcing the “subpersonhood” and subjugation of Black persons. Even where formal legal proceedings took place, underlaw often infected the process…

Constitutional Spirals

By Jeremy Paul

As I complete this essay, only days remain before the 2020 election. As a professor of constitutional law, as an American, and as a father, I am terrified. From my vantage point, the nation is in the grip of leaders, especially President Trump, who, if given the chance, will crush the democratic and legal traditions that have made the United States the long-time leader of “the free world.” During his first term, President Trump has openly solicited foreign assistance in his efforts to win re-election, brazenly exploited racial divisions by making rhetorical peace with white supremacy, politicized the Department of Justice and the intelligence community, personally profited by steering government and campaign funds to his business interests from which he should have divested himself, manipulated the security clearance process in pursuit of nepotistic hiring, demolished the line between governing and politics by holding his convention speech on the White House lawn, openly celebrated the extrajudicial killing of an alleged criminal, withdrawn the nation from crucial international cooperative efforts (such as the Paris Climate Accords, the nuclear treaty agreement with Iran, and the World Health Organization), and repeatedly lied to the American people while attacking the press as the enemy of the people. Despite these corrosive actions, leading members of the Republican Party in the Senate and the House supported him every step of the way. The overwhelming majority of GOP elected officials presumably concluded that confirmation of conservative federal judges and tax cuts for corporate America and the nation’s wealthiest individuals outweighed any risks Trump’s volatile presidency entailed. We can only imagine how much further the nation will sink should voters grant Trump an Electoral College victory again…

Hamstringing the Health Technology Response to COVID-19: The Burdens of Exclusivity and Policy Solutions

By Professor Brook K. Baker

The world was unprepared for COVID-19 despite other recent coronavirus outbreaks and despite multiple warnings from the World Health Organization (WHO) and others. Although there was an initial sharing of research among scientists and an unleashing of significant public, charitable, and private funding to develop, test, and expand manufacturing capacity of new COVID-19-related medicines, vaccines, and diagnostics, the status quo of exclusive rights ownership and commercial control by the multinational biopharmaceutical industry continues unabated. Existing intellectual property rules that allow private entities to maintain monopoly rights over the development, clinical testing, regulatory approval, pricing, supply, and distribution of essential medical products have not been altered. And the determination of rich countries to secure preferential and disproportionate access to proven and promising vaccines, medicines, diagnostics, and personal protective equipment remains unchanged. In place of open science and coordinated clinical trials, scientific rigor in regulatory assessment and broad regulatory approval, low-cost pricing and rational expansion of manufacturing capacity, and equitable global access to all needed COVID-19 health products, we have needlessly high prices, inadequate supplies, and nationalistic hoarding, especially, but not exclusively, by the Global North…

The Cycles of Constitutional Time: Some Skeptical Questions

William G. Mayer

Though regular readers of law journals may not be aware of it, there is a burgeoning subfield in political science known as American political development. In general terms, American political development may be described as history with a distinctly political science spin. It examines the ways that American political institutions and practices have changed over the course of our nation’s history, with a focus less on simple narrative description than on how such changes have affected the operations and outputs of the political system. To date, almost all of this work has focused on Congress, the presidency, the bureaucracy, political parties, and voting behavior. Jack Balkin’s The Cycles of Constitutional Time is one of the first major attempts to apply such an approach to the judiciary, particularly the Supreme Court. For that reason alone, I suspect it will attract a wide readership. The remarkable range of Balkin’s analysis is also quite impressive. In the pages that follow, I will raise a number of questions and put forward a few criticisms, but that in itself is a kind of back-handed compliment. Provocative, wide-ranging books invariably raise as many questions as they answer…