Notes

The City of Moscow continues to enforce a restrictive residence registration regime similar to the propiska system that prevailed in the Soviet era-despite constitutional guarantees of the freedom of movement, federal statutory provisions implementing that right, and Constitutional Court rulings that such restrictions are unconstitutional. In this Note, Damian Schaible argues that the continued restrictions represent more than simply an ongoing violation of the human rights of Moscow’s illegal residents; they are also an indicator of Russia’s imperfect transition to the rule of law and a practical obstacle to the success of that transition.

Parents or caretakers may be charged with a form of criminal or civil penalty called “failure to protect” when they do not prevent another person from abusing the children in their care. Although couched in gender-neutral terms, defendants charged with failure to protect are almost exclusively female. In this Note, Jeanne Fugate suggests that the unequal numbers of women facing such charges can be explained by the higher expectations that women face in the realm of parenting and child care. She then offers several changes that should be made to the content and enforcement of failure-to-protect statutes. First, she argues that, to ensure that recent expansions of the duty do not implicate unfairly women, laws and courts should define clearly what actions establish a duty to protect children. Second, to avoid unfair expectations of women’s responses to child abuse, failure-to-protect laws should delineate the steps persons must take when they become aware of abuse. Finally, Fugate concludes that every state should adopt an affirmative defense to excuse persons who fear for their safety or the safety of abused children.

A number of claims brought in federal courts across the United States document stories of working mothers who have encountered workplace discrimination directed at their breastfeeding status. Federal courts considering these claims uniformly have agreed that sex discrimination based on breastfeeding is not actionable under Title VII as amended by the Pregnancy Discrimination Act (PDA). In this Note, Diana Kasdan argues that this jurisprudence fails to consider the intent of the PDA and instead revives the flawed and rejected analysis of General Electric Co. v. Gilbert, which, prior to enactment of the PDA, wrongly held that discrimination directed at a gender-specific condition such as pregnancy was not Title VII sex discrimination. In critiquing these cases, Kasdan suggests that they ignore the gender-specific nature of breastfeeding, thereby improperly foreclosing the application of Title VII to breastfeeding-based claims. She argues that the statutory language, legislative intent, and Supreme Court interpretation of the PDA support an interpretation that includes breastfeeding within the scope of Title VII’s antidiscrimination protections. Finally, Kasdan concludes that such an interpretation of the PDA is essential to preserving the integrity of Title VII law and ensuring the advancement of women in the workforce and public life.

In this Note, Daniel J. Schwartz explores the connections between voter turnout, interest group mobilization, and the standards by which courts assess the constitutional validity of legislative enactments. As traditionally conceived, democracies only function properly when citizen participation in government is widespread and knowledgeable. Since the 1960s, however, few citizens have voted in American congressional elections and fewer still have been aware of the issues at stake. While political scientists attribute this situation to various causes, they agree that an important factor is a lack of electoral mobilization—that is, the process by which interest groups and others stimulate citizens to go to the polls. Drawing from public choice theory, which posits that interest groups use political contributions and electoral support to buy rent-seeking laws from legislatures, Schwartz suggests that groups engage in little electoral mobilization because they successfully obtain the rents they seek through other means, such as lobbying and litigation. He argues that courts reinforce this state of affairs by reviewing the constitutionality of most legislation with a very deferential standard, thereby protecting the value of lobbying and litigation as means of cementing legislative bargains. Schwartz thus proposes that the deferential review of a statute should be contingent on a showing of fifty-percent turnout in the two elections prior to its enactment. He argues that such a condition would decrease the value of lobbying and litigation relative to that of mobilization, which, in turn, would furnish interest groups with the right incentives to turn out voters at election time.

Recent elections show that more than just good ideas are needed to win: Candidates also need money. More than thirty years ago, Congress sought to limit the amount of money that flowed in and out of federal campaigns through a comprehensive set of amendments to the Federal Election Campaign Act (FECA) of 1971. In Buckley v. Valeo, the U.S. Supreme Court held that only campaign legislation that regulated a vague category of activity called “express advocacy” would be tolerated under the First Amendment. Since that decision, candidates have sought to identify themselves with particular issues and, in particular, the tax-exempt groups who propagate those issues. Not only are these tax-exempt groups exempt from income ta, but they also have been used to avoid the restrictions of the FECA. The most recent incarnation of loophole generating tax-exempt organizations elected tax-exempt status under section 527 of the Internal Revenue Code (the Code). These so-called “stealth PACs” successfully avoided most federal regulation, including federal disclosure requirements under the FECA. That same year, Congress put an end to the practice by mandating that such groups disclose the sources of their funding. In this Note, David S. Karp addresses some of the problems raised by these disclosure amendments. Karp argues that the persistent use of the Code to remedy loopholes in the campaign-finance law is dangerous because it traps otherwise law-abiding tax-exempt organizations between two separate regimes, with different goals in mind, regulating the same subject matter. After canvassing the history of the involvement of tax-exempt organizations in politics since Buckley, Karp concludes by arguing that the problem of the “stealth PACs” could be solved by limiting section 527 status to organizations that engage in express advocacy.

Over the last three decades, different criticisms have emerged in response to the “war on drugs.” One strain of argument relies on a pragmatic analysis of the costs and benefits to society as a whole of using criminal sanctions. Although the costs associated with drug-related harms and drug enforcement disproportionately burden poor communities, their relationship with poverty has attracted little systematic analysis. In this Note, Keith Donoghue focuses on the particular costs and benefits of the drug war for the poor as a class. Relying on social-scientific theories of drug abuse and criminal law enforcement, he analyzes the effects of the two major drug-enforcement strategies: “top-down,” which seeks to intercept the leaders of drug operations, and “bottom-up,” whose objective is to apprehend retail purchasers of drugs. Donoghue argues that these strategies have imposed unique injuries on the poor, such as more violent crime in poor communities and greater drug abuse among the poor. He concludes that the impact of drug prohibition on the poor is more multifaceted than commonly has been recognized.

Even as the law has become an instrument for combating sex discrimination, it has continued to impose a rigid, binary sex-classification system where fundamental legal rights and protections depend on one being labeled “male” or “female.” In this Note, Jerry Dasti examines how this binary system of sexual identification has created a vicious Catch-22 for the small yet significant population of transgender people whose chosen sex and gender diverge from their sex at birth. While the law’s conception of gender identity is inconsistent and ad hoc, one theme emerges: Courts will not recognize a transgender person’s chosen sex or gender without successful completion of sex-reassignment surgery. Because the costs of the procedure, including pre- and postoperative treatment, are prohibitively high, many transsexual individuals are forced to seek coverage through Medicaid. Medicaid, however, only covers those procedures deemed “medically necessary,” which, for transsexuals, means they must first be diagnosed with a gender identity disorder that can only be cured by sex-reassignment surgery. Therefore, in order to establish a legal identity, transsexuals have to pathologize their social identity, which explains the backlash from many transgender groups against the coverage of sex-reassignment surgery under Medicaid. The law’s sex-classification system not only creates tension for the person seeking surgery but also puts the interests of individual transsexuals at odds with the interests of the transgender community as a whole. This Note argues for a broader conception of medical necessity—one that recognizes the legal and social necessity of the surgery to transsexuals’ full participation in society but does not simultaneously stigmatize gender variance as a “disease” that must be “cured. “

The Antiterrorism and Effective Death Penalty Act (AEDPA), enacted in 1996
changed both federal habeas procedure and the relationship between federal and state courts. A new provision, § 2254(d), requires federal courts to defer to the legal conclusions of state courts unless those conclusions are “contrary to, or involved an unreasonable application of clearly established federal law.” This deferential schema becomes problematic when, as often happens, a prisoner presents a federal constitutional claim to the state courts, but the state court opinions denying relief do not mention the federal claim. How can federal courts assess the reasonableness of a decision that may not exist? The circuit courts have proposed widely variant solutions to this problem, ranging from de novo review to an extreme deference to state court results. In this Note, Claudia Wilner argues that a federal court should not defer to a state court decision unless it is accompanied by an opinion that actually discusses the federal claim. After considering and rejecting the various circuit approaches to reviewing silent state court opinions, she proposes a new approach that balances Congressional intent, Supreme Court precedent, federalism concerns, and the interest of the prisoner seeking review.

In this Note, Margaret Lewis revisits the Chinese-American air-crash incident of 2001 to evaluate the claims made by each nation that the other acted in violation of international law. After assembling the relevant laws that would have been applied if the matter were resolved in an international tribunal, Lewis concludes that the United States was not in contravention of any of them. She does, however, suggest that it would be best if the two countries formulated “rules of the road” to reduce the probability of repeat accidents and to avoid protracted disputes over international law like those witnessed in the instant case.

In the 1990s, in the wake of large-scale massacres, the United Nations Security Council established the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR). The statutes of these courts adopted the definition of genocide from the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), which requires an “intent [by the accused] to destroy, in whole or in part, a national, ethnical, racial or religious group” to prove genocide. In practice, the tribunals have struggled to apply the intent requirement. The ICTR, in its first genocide conviction, ruled that intent may be inferred from certain presumptions of fact, including the general context of the acts in question and the nature and scale of atrocities. Later, the ICTY applied a “quantitative criterion” by ruling that any inference of genocidal intent requires that the accused’s actions affect a great number of people. In this Note, David Alonzo-Maizlish argues that, as a threshold for genocidal intent, the “quantitative criterion” contradicts the object and purpose of the definition of genocide in the Genocide Convention. By reviewing the theory and history of group rights and the Genocide Convention, Alonzo-Maizlish demonstrates that the quantitative element is incompatible with the group-held right to exist on which the concept of genocide is premised He concludes that the “quantitative criterion” is an obstacle to the development of a meaningful intent standard.