Recent Commentary from Inter Alia

Proposed Rule 37(e) of the Federal Rules of Civil Procedure is the latest effort to respond to the tendency of large data producers to over-preserve electronic information as a protection against the common law of spoliation sanctions and procedural rules regarding electronic discovery. The proposed rule’s failure to properly differentiate a breach of the duty to preserve from bad faith, however, threatens to negate its otherwise promising reforms.

This article suggests that the federal government can use its taxing power to make it more expensive to build personal arsenals. Specifically, I argue for an incremental excise tax, which would be imposed on each successive gun after the initial purchase, which would be tax-free. I believe this approach would offer two advantages.  First, given the current constitutional landscape, such a tax would be much harder to challenge than a restriction on gun ownership, which directly implicates the Second Amendment. Second, an incremental tax would distribute the costs of arsenals in proportion to the public safety risk created by each individual gun owner. A tax could be implemented with the adoption of universal background checks without limiting an individual’s choice to own multiple weapons.

In the wake of the Supreme Court’s decision in Shelby County, voting rights advocates should be cautiously optimistic that the Voting Rights Act’s “bail-in” process, left intact by that decision, can fill the void left open by the Court’s rejection of the preclearance coverage formula. Although statutory change may still be possible and desirable immediate attention should be paid to provisions currently in effect and capable of instant application. The bail-in provision satisfies the constitutional requirements laid out by the Shelby County Court, is immediately available, and, if utilized, represents the remedial option closest to the previously utilized § 5 preclearance structure.