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Over half a century ago, the Puerto Rico legislature legalized casino gambling in an effort to promote tourism to the island.' To help ensure that the local population would not overindulge in this particular vice, however, the legislature at the same time provided that "[n]o gambling room shall be permitted to advertise or other- wise offer their facilities to the public of Puerto Rico."' Thirty years later a casino operator challenged the statutory advertising ban and its implementing regulations as violating the freedom of speech guaranteed by the First Amendment. Although the Superior Court of Puerto Rico agreed with the casino that the regulations-which, among other things, had barred the use of the word "casino" on matchbooks and even interoffice or external correspondence-were "capricious, arbitrary, erroneous and unreasonable, and ha[d] produced absurd results which are contrary to law," it refused to in- validate the statutory advertising ban. Instead, it issued narrowing constructions of the statute and regulations to prohibit "advertisements . . . in the local publicity media addressed to inviting the residents of Puerto Rico to visit the casinos.' The Puerto Rico Supreme Court upheld the lower court and the casino appealed to the U.S. Supreme Court. In Posadas de Puerto Rico Associates v. Tourism Co., the Supreme Court affirmed the Puerto Rico courts by a 5-4 decision written by then-Justice Rehnquist. First applying the mid-level scrutiny for regulations of commercial speech that it had announced in its Central Hudson decision six years earlier, the majority determined that the regulations, as narrowed by the Puerto Rico courts, passed muster because they directly advanced a substantial governmental interest in reducing demand for casino gambling by the residents of Puerto Rico and were no more extensive than necessary to serve that interest. Second, and seemingly in the alternative, the majority explained that "the greater power to completely ban casino gambling necessarily includes the lesser ...

In its Florida Prepaid and College Savings Bank decisions of two terms ago, the Supreme Court raised significant barriers to Congress's ability to subject the states to damages liability in federal intellectual property suits. These decisions provoked extensive academic commentary and have also sparked efforts in Congress and at the U.S. Patent and Trademark Office to amend the federal intellectual property laws to ensure that state governments will remain accountable for violations of federal rights. This article explores how such legislation might best be shaped in order to withstand constitutional challenge. Satisfactory treatment of the issue requires examination of a diverse array of difficult questions, ranging from murky corners of procedural due process and takings jurisprudence, to qualified immunity, the unconstitutional conditions doctrine, and U.S. obligations under international treaties and trade agreements. Very broadly, the article advances three broad conclusions. First, notwithstanding the Court's rejection in Florida Prepaid of one particular statute purporting to abrogate state sovereign immunity in patent disputes, a more limited abrogation strategy might yet succeed. In particular, we conclude that Congress could very probably restrict abrogation to cases of non-negligent state infringements of intellectual property rights in circumstances where the state can be shown to provide inadequate remedies. We also observe, however, that such an approach is unlikely to accomplish much of what Florida Prepaid's critics would like. Second, a much-discussed proposal that states be required to waive all of their sovereign immunity from intellectual property suits in order to receive any federal protection for their own works and inventions is unlikely to pass constitutional muster, although if Congress remains attracted to a conditional waiver strategy, it might have some avenues open to it. Third, given the continuing availability of injunctive relief, the United States may presently be in substantial compliance with its international treaty obligations notwithstanding the Court's decisions. But if Congress wishes to provide foreign intellectual property holders with damages remedies against the states, attempts to ground abrogation on the Treaty Power or via qui tam suits will probably prove unconstitutional.