Notes

In Türkiye Halk Bankasi A.S. v. United States, the Supreme Court reviewed the Second Circuit’s holding that the passage of the Foreign Sovereign Immunities Act (FSIA) abrogated any immunity from prosecution that foreign sovereigns may have previously enjoyed under the federal common law. The Court reversed, holding that the FSIA is inapplicable in the criminal context and, therefore, left the federal common law of sovereign immunity from prosecution undisturbed. The Court’s reasoning, however, did not explicitly draw upon or elucidate the doctrine of federal common law displacement. It is possible that the Court chose not to engage with this doctrine because its underlying case law has thus far failed to supply a clear, consistent, and administrable standard for federal common law displacement. Recent appellate decisions concerning the federal common law of foreign sovereign immunity illustrate the need for doctrinal reform.

This Note advocates the adoption of a different method for analyzing federal common law displacement disputes, drawing upon an analogy to the better defined and familiar doctrine of state law preemption. Specifically, I argue that statutes may either “expressly displace,” “conflict displace,” or “field displace” the federal common law, categories which I define by reference to express, conflict, and field preemption. I contend that this framework, although never formally endorsed in so many words by any federal court, is already immanent in the Supreme Court’s case law and the scholarly literature. Using Türkiye Halk Bankasi as a case study, I illustrate how the Court could have applied this framework to reach the same result while providing courts and litigants with a more structured approach for future federal common law displacement controversies.

Central banks like the European Central Bank (ECB) have started incorporating climate change considerations into their monetary policy tools. This Note refers to this phenomenon as green monetary policy (GMP). Given the crucial role of central banks and other monetary authorities in bank supervision and regulation, GMP has emerged as a solution to tackle the continued financing of fossil fuels and industries that have accelerated climate change. Among central banks, the ECB has emerged as a leader in GMP. However, the United States Federal Reserve Board (the Fed) has signaled a refusal to engage in any climate policymaking, including GMP. This paper argues that the Fed should follow the ECB by implementing GMP, given the central banks’ similar structure, general tools of monetary policy, and monetary policy-related goals. Although the Fed, unlike the ECB, does not have a secondary mandate to support general economic policies including environmental and climate-related goals, the Fed and the ECB are both mandated to promote price stability and act as a supervisor of financial risk. This Note analyzes the implications of the potential implementation of GMP by the Fed, comparing it to the ECB’s GMP, structure, and statutory mandates. It also explores key concerns and counterarguments in the literature against Fed implementation of GMP, which deal with independence, accountability, and mission creep. Despite these concerns, the Fed should continue to research climate change’s impact on macroeconomic stability and apply climate change considerations in its collateral policy, as the ECB has already done.

The Eighth Amendment to the U.S. Constitution bans “cruel and unusual” punishment. Historically, the Amendment’s protection has limited the use of the death penalty, life without parole sentences for juveniles, and other extreme punishments. The Supreme Court’s Eighth Amendment jurisprudence has been both controversial and unpredictable. Fortunately, every state constitution has an Eighth Amendment analog, and state supreme courts have independent authority to interpret those provisions as they see fit. State constitutions are therefore an alternative avenue for defining what constitutes unconstitutional punishment, and this area of law is a uniquely suitable context for state constitutional decisions to exert influence over the development of federal constitutional doctrine. While state supreme courts have typically followed the Supreme Court’s say-so on cruel and unusual punishments, recent state constitutional decisions may indicate a shifting tide toward more robust development of state constitutional law in this area. This Note argues that the Supreme Court should strongly consider such state constitutional decisions in assessing “evolving standards of decency” under the Eighth Amendment.

Over the past few decades, the Supreme Court of the United States has adopted an exceedingly narrow view of tribal civil jurisdiction, establishing doctrines that restrict the circumstances in which Native Nations can exercise their regulatory and adjudicative powers. While most scholarship in federal Indian law has assessed this judicial trend towards tribal disempowerment by focusing on the Court’s treatment of tribal sovereignty, this Note centers the Court’s manipulation of tribal territory. It argues that the Court has constructed three territorial incongruities—non-Indian fee lands, public access, and loss of “Indian” character—to justify the disallowance of tribal authority over significant portions of tribal reservations. In so doing, the Court relies on a spatial imaginary of territorial sovereignty, or the notion that sovereign power must be commensurate with sovereign domain, to present certain spaces as falling outside of a Native Nation’s territory and, accordingly, as beyond the reach of its jurisdictional power.

By illuminating the spatial imagination of the Supreme Court, this Note identifies a key practice employed by the Court that is central to empires past and present— cartography. The Court superimposes its own imagined legal geography upon the preexisting system of territorial division, redrawing the jurisdictional boundaries that separate states and Native Nations. This practice of spatial manipulation is cartographic in that it allows the Court to determine and limit the territory of tribal rule; to expand the areal authority of state jurisdiction; and to project its particular vision of reservation lands—a vision defined by notions of ownership, accessibility, and character—upon Indian country. These cartographic tactics of territorial acquisition and control are in direct furtherance of the American colonial project. They fragment tribal regulatory regimes, reify Indigenous life, and transfer congressional power to the Court to diminish tribal reservations. These practices of fragmentation, reification, and de facto diminishment are continuations of the repudiated but never-undone federal policy of allotment, although the main perpetrator is now the Court rather than Congress.

By turning to critical legal geography and theories of space and power, this Note reveals a Supreme Court that is highly imaginative, overtly spatial, and problematically cartographic in nature, engaged in a project of colonial expansion across its tribal civil jurisdiction cases.

In this Note I undertake a historical survey of the conceptual predecessors to the Fourteenth Amendment’s Privileges or Immunities Clause, from the sixteenth century through the mid-nineteenth century. By doing so I present a different angle on the potential significance of this provision, which merits revisitation as a clause bearing meaningful judicially cognizable rights, despite its effective foreclosure under the Slaughter-House Cases. Because of the open-ended and adaptive quality of this enigmatic phrase and its preceding variants, it bore a wide range of significances over the centuries. Indeed, as this Note also demonstrates, one can trace critical moments in early American history alongside varying uses of this phrase, further indicating its previously evolutionary quality. In its earliest forms, it implied the British Crown’s support for the development of colonies in the New World, and soon thereafter, it served as a vehicle for establishing individual rights akin to those of the Magna Carta. It also generated newfound rights that provided justification for the American Revolution and was used to advance unity among the states of the new nation, especially for the sake of economic development.

In the decades prior to the Civil War, its meaning was shaped by the pressing issue of slavery. Justice Bushrod Washington’s limiting construction of the Privileges and Immunities Clause in Corfield v. Coryell, I propose, was centrally informed by the debates leading to the Missouri Compromise, in which slaveholding as a protected right under privileges and immunities was a key point of contention. Because Corfield implicitly truncated the basis for asserting a right to slaveholding via privileges and immunities, the Court in Dred Scott, dominated by Southern justices, focused on excluding access to such rights based on immutable characteristics.

The Southern preference for broad rights and narrow access, however, was definitively defeated through war. It is thus uncertain whether a historically informed meaning of the Privileges or Immunities Clause necessarily turns on the disputes in the decades immediately leading to the Fourteenth Amendment’s ratification—which would suggest a fixed and narrow construction aligned with Corfield—or whether the deeper, evolutionary history of privileges and immunities lends a meaningful gloss on the clause, counseling a broader and more expansive interpretation. The Fourteenth Amendment’s legislative history is ambiguous at best, providing fodder for both possible readings.

While confronting these uncertainties, this Note draws from a historical method not previously deployed for the purpose of grasping the fuller meaning of this constitutional provision: It undertakes a longue durée approach, accounting for the variations of this phrase’s significance across time and as affected by a dynamic multiplicity of inputs. Most claims regarding the meaning of this clause tend to pinpoint one or several moments in its long history as the “true” origin point(s). A historical sense of privileges and immunities derived through this method, however, indicates that reaching a determination on the breadth of rights conveyed through this provision entails the resolution of a close call, requiring careful sifting of historical data, perhaps paired with other constitutional principles and policy considerations.

Zoning protest petitions allow landowners representing a percentage of the land
neighboring an area proposed to be rezoned to force the local government to have to
vote by supermajority to approve the rezoning. Only landowners are entitled to file
these petitions, and their “vote” toward the percentage of neighboring land necessary
to trigger the supermajority is allocated according to the proportion of neighboring
land they own. This Note examines the history, statutory construction, and current use
of protest petition laws, which are now on the books in twenty states. It illustrates that
they formed part of the justificatory architecture of racist and classist exclusionary
zoning and Not in My Backyard-ism (NIMBYism), contributing to legal doctrine and
informal political norms that treat an entitlement to block locally unwanted activities
as a “property right” akin to a right against nuisances. Although protest petitions have
historically been rarely used, the political and legal norms of exclusionary zoning
and local control are changing. While governments work to alleviate a nationwide
housing shortage, the political climate is also characterized by the routine use of
procedural hardball in all areas of policy. There are now warning signs that protest
petitions will be increasingly used by NIMBY neighbors to “filibuster” rezonings that
would allow for the construction of needed housing. To head off this increasingly
likely possibility, this Note probes some legal avenues in federal law that might be
explored by housing affordability advocates to invalidate, weaken, or induce the
repeal of protest petition laws in all states that still have them. It explores due process
and One Person, One Vote theories, as well as the idea of using the “affirmatively
furthering” mandate of the Fair Housing Act to induce protest petition laws’ repeal.

Login.gov is America’s new nationwide Digital ID system. In its few years of existence, it is already the only way to access an increasing number of government programs, benefits, and resources. The significance of this development hides behind technical details, confidential contracts, and jargony hyphenates like “single-sign-on” and “duo-authentication.” Yet properly examined, the story of why Login.gov was created, with whose input, and with which governance goals in mind exposes both the promise and pitfalls of infrastructural projects in the digital age.

A central facet of the Login.gov infrastructure is its reliance on a notoriously extractive and inscrutable data broker, LexisNexis. LexisNexis verifies the identities of Login.gov users—often welfare applicants, veterans, and federal employees—by comparing data input by users to a vast array of records scraped from every nook and cranny of the internet. The government’s decision to partner with LexisNexis openly flouted binding privacy and security guidelines set by the government’s own science and technology experts. Moreover, this massive aggregation of personal information, though legal, goes against the best practices for government collection and use of personal data set forth in the Privacy Act of 1974.

As ineffective as the Privacy Act of 1974 is as a data privacy law in the age of online data brokers, the law nevertheless represents a substantial effort by legislators from a bygone era to set principled guidelines for how to build trustworthy, democratically sustainable information systems. By contrast, the early years of America’s first nationwide digital identity credential are characterized by unscrupulous design judgments with dangerous consequences. But it is not too late to design tomorrow’s digital infrastructure to be safer, more equitable, and more trustworthy than what we have today.

Agency delay is a pervasive problem. It occurs in a broad range of policy areas, including environmental protection, healthcare, and financial regulation. The trope of slow and inefficient government agencies has become cliché.

Statutory deadlines are one solution to the problem of agency delay. Attaching a deadline to authorize legislation seems like an obvious way to make agencies act faster. Therefore, scholars and policymakers have urged the use of statutory deadlines to spur agencies to action. They have focused on ways to more vigorously enforce statutory deadlines through negative incentives, such as hammer provisions or mandamus remedies, as well as on the effectiveness and drawbacks of negative approaches.

The current debate neglects positive incentives as another way to encourage agencies to meet deadlines. This Note argues that statutory deadlines can be a superior way of avoiding agency delay when linked to positive incentives (“carrots”) rather than negative incentives (“sticks”). The Note specifically focuses on conditional relaxation of judicial review as a promising mechanism to induce agencies to more appropriately avoid unnecessary delay. Conditional relaxation of judicial review is so promising because it accounts for the costs of litigation and judicial review in a manner that the typical negative incentives do not. This Note will review the relevant current doctrine and debate on enforcement of statutory deadlines, lay out the possible ways to attach positive incentives to statutory deadlines, and in comparing this carrot approach to deadlines to the stick approach, will show the advantages (and limitations) of positive incentives. Ultimately, the carrot approach will be most appropriate where there is a policy need for speed and when an agency faces resource constraints, though such an approach may never be appropriate when there is a strong principal-agent conflict between Congress and the relevant agency.

Human trafficking and forced labor are serious crimes that violate the human rights of millions around the world. They also generate substantial profit for multinational corporations that purchase inputs at forced labor prices. This Note discusses how the Trafficking Victims Protection Reauthorization Act (TVPRA) can be used to establish civil liability for U.S. corporations benefiting from forced labor in their supply chains. Despite excitement in the human rights literature about the TVPRA, recent TVPRA claims involving international supply chains have failed to survive motions for dismissal and summary judgment. This article aims to provide insight into the recent decisions and to determine if they were correctly decided.

While civil liability could help combat global forced labor, recent TVPRA claims have failed because courts interpret the statute narrowly when adjudicating cases involving international supply chains. These restrictive interpretations are incorrect, especially because Congress intended the TVPRA to be a robust response to the global problems of trafficking and forced labor.

Legal scholars have long debated the President’s authority over administrative agencies. However, these narratives have ignored that Presidents have assumed directive control for decades—via the National Security Council. This Note fills that void in two ways. First, it provides a historical account. It reviews available national security directives and assesses their role in instigating administrative action. It reveals that, over time, Presidents have increasingly invoked these directives to mold domestic and economic policy. Second, this Note evaluates national security directives under three models of presidential authority: the unitary executive theory, Justice Elena Kagan’s notion of implied statutory authorization, and Professor Kevin Stack’s requirement of explicit statutory permission. It determines that all three theories sanction the President’s deployment of national security directives to control agencies and shape domestic affairs. This Note concludes that by providing a firm constitutional and statutory footing from which a President can dictate administrative action, national security directives are a powerful and expanding presidential tool.