Notes

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.

Like many other transitional democracies, South Africa has chosen to run its two national postapartheid elections by an independent electoral commission, not by the existing government. Although the results were widely considered legitimate, the perception of legitimacy was due in large part to the public’s low expectations. To keep the public confidence, and to avoid the sorts of large-scale breakdowns in the electoral process that might undermine it, the current Electoral Commission must embrace major reforms. One of the Electoral Commission’s most pressing problems is the fact that opposition parties believe it is strongly biased in favor of the ruling political party, the African National Congress. The Electoral Commission also has failed to devolve meaningful power to provincial officials, increasing the risk that it will botch the details of election management. The author proposes several measures to help resolve these concerns.

In this Note, Anastasia Crosswhite examines land ownership of elite women in early modern England. Studying property disputes within two of the richest aristocratic families in early modern England, the Manners and the Talbots, Crosswhite fills a gap in English historical literature and also complicates the common scholarly view that the early modern English legal and social systems rendered female control and ownership of land a rarity. Although finding that the legal system generally discouraged female property ownership, Crosswhite also discovers that the women of the Manners and Talbot families did own, manage, and control land. In addition, the legal system itself provided the opportunity to do so, for it routinely placed the control, albeit often temporary, of land in women’s hands. Yet these opportunities had to be exploited by individual historical actors, and Crosswhite concludes that the men and women of the Manners and Talbot families, being able manipulators of legal and social structures, did so to the benefit of themselves and their families.

In the course of enforcing laws against child pornography, law enforcement agents often engage in undercover operations that involve mailing child pornography to suspected consumers. In this Note, Howard Anglin argues that Congress and the Supreme and circuit courts have clearly established that children portrayed in pornography are harmed every time the pornographic images are viewed. The current law enforcement practice of mailing child pornography therefore injures children each time it is carried out. Under the doctrine formulated in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, this injury is actionable by the children involved and may lead to monetary damage awards against the agents who choose to send pornography to criminal suspects. Thus, law enforcement agencies should alter their practices to avoid Bivens liability and adhere to Congressional admonitions not to injure the innocent in order to catch the guilty.

The infusion of women into the workforce in the 1960s brought great freedom but also great difficulty. Without women at home to tend to the sick, raise children, care for the elderly, and manage households, workers of both sexes (but particularly women) struggle to balance this “care work” with outside wage work Laws which prohibit discrimination against employees because of their status as parents purport to solve this problem by allowing parents to perform child care without workplace conflict. In this Note, P.K. Runkles-Pearson argues that these laws are an incomplete and potentially dangerous solution to the tension between work and family, because they ignore the diverse care work needs of employees who do not parent. Ignoring non-parents leads to inefficient labor markets, leaves all groups including children-with less than optimal care, discourages reproductive choice, and provides an unbalanced discrimination remedy that contravenes the very nature of American antidiscrimination laws. Instead of the current system, Runkles- Pearson proposes antidiscrimination laws that protect both parents and nonparents from discrimination on the basis of their parental status.