Notes

In response to September 11, 2001, Congress established a victim compensation fund, charging the Department of Justice with the responsibility for creating and administering the fund regulations. Several months after the Department of Justice announced its final rules, Cantor Fitzgerald publicly alleged that a number of the regulations were contrary to the congressional act governing the fund. Jonathan Melber examines Cantor Fitzgerald’s arguments and shows that they do not hold up under current principles of administrative law because the challenged regulations fall within the range of discretion Congress delegated to the Department of Justice.

Personal jurisdiction proceedings formally focus on the defendant’s liberty interest in avoiding the reach of an overextending court. In this Note, R. D. Rees argues that such an approach may fail to provide the plaintiff due process. The laws of various jurisdictions convert a single set of underlying facts into distinct causes of action, and the Supreme Court understands these statutory programs to create property interests. Although a plaintiff may not have a substantive right to a cause of action in a given jurisdiction, she does have the procedural right to have her interests considered before dismissal for lack of jurisdiction finally destroys her property claim. Since the defendant-centered nature of the “minimum contacts” test does not appear to allow for such consideration, Rees proposes a modest adjustment to the current test that would weigh plaintiff interests among the totality of the circumstances.

A Business Improvement District, or BID, is a territorial subdivision within a municipality. Within a BID, local property and business owners pay district-specific assessments to fund local improvements such as enhanced security, sanitation, marketing, and infrastructure. Because BIDs are often managed by private entities controlled principally by local property or business owners, critics have charged that BIDs are undemocratic and insufficiently accountable. In this Note, Brian Hochleutner argues that BIDs are both democratic and accountable, at least to the BID’s most likely stakeholders and to the extent that those stakeholders are likely to be affected by the BID’s activities. As Hochleutner demonstrates, a BID’s small size and limited purpose work to limit accountability concerns generally. Further, a BID’s size and purpose also work with other aspects of the BID model—such as substantial oversight by local government officials and the BID’s own corporate governance mechanisms—to ensure that BIDs are not only particularly responsive to the interests of local property and business owners, but also sufficiently accountable to the interests of local residents. Hochleutner concludes that the BID model provides a way of governing sublocal commercial districts and downtown areas that is more fair and accountable to those actually governed than any obvious alternative.

Only one rule of criminal procedure applies to the trial of alleged petty offenders in federal court. This rule establishes a baseline for the trial of petty offenders. However, district courts implement that baseline in many diverse ways. The procedures vary dramatically, and there is little or no information available to defendants in order to prepare them for court. Court-appointed counsel is provided in very few cases. In this Note, Mary Warner examines the systemic problems with the current procedures governing the trial of alleged petty offenders. With the limited information available on how petty offenses are tried in various districts, she first surveys district court procedures. Based on the application of procedural rules in the various district courts, she then analyzes how current practices fall short of constitutional norms and efficient best practices.

Currently there is no broadly applicable international legal instrument that protects ongoing contact between noncustodial parents and their children across national borders. Although the Hague Convention on the Civil Aspects of International Child Abduction provides strong protection for rights of custody, it grants relatively weak protection for rights of contact. This absence of protection for rights of contact both undermines the goal of preventing abduction and leaves unresolved the question of how to ensure the continuity of relationships between noncustodial parents and their children. In particular, parents and courts involved in relocation cases have no assurance that orders for visitation and other forms of parent-child contact will be fully recognized and enforced once the residence parent and child have relocated. In this Note, Marguerite C. Walter argues that a protocol providing for the recognition and enforcement of contact decisions by states adhering to the Abduction Convention would provide a relatively simple and immediate solution to the problem. Such a protocol would provide for the automatic recognition and enforcement of contact decisions when certain criteria are met. The most important of those criteria would be that the order emanate from the authorities of the child’s habitual residence no earlier than six months to one year prior to the recognition request, and that all parties have been given the opportunity to be heard in the original proceeding. In addition, the protocol should provide for interjudicial communication, a strictly construed emergency exception to mandatory recognition and enforcement, and specific sanctions for failure to recognize and enforce a contact decision meeting the criteria set forth.

To date, no international criminal tribunal has seriously considered using a jury trial. In the International Criminal Court (ICC), for example, a panel of judges appointed by the Assembly of States Parties acts as the fact finder. In this Note, Amy Powell examines the theoretical justifications for a jury in the context of international criminal adjudication. She concludes that the use of a jury–or, at a minimum, the integration of the important values underpinning the institution of the jury–would greatly benefit the ICC by protecting important principles of justice.

The National Environmental Policy Act (NEPA), the nation’s seminal environmental-protection legislation, has affected tremendously the course of executive-agency decisionmaking. Its broad, ambiguous mandate that agencies consider the potential environmental impact of agency decisions has been interpreted aggressively to require thorough analysis of environmental factors and also that those considerations guide the ultimate conclusions of the decisionmaking process. The demanding analytic requirements, such as the environmental impact statement and the environmental assessment, are recognized to be a significant burden on the resources of executive agencies. Consequently, the agency charged with administrating NEPA has urged executive agencies to promulgate categorical exclusions–categories of actions that are exempted from traditional NEPA analysis due to their repetitive nature and the predictability of their limited environmental impact. This NEPA exception has steadily broadened and invited agency abuse to avoid the burdens of NEPA requirements and the scrutiny of environmental advocacy groups. The resulting litigation brought by advocacy groups to hold these agencies accountable has been expensive and time-consuming. In this Note, Kevin Moriarty explores the history of categorical exclusions and discusses past efforts to remedy potential abuses of agency discretion. The most recent incarnation of categorical exclusions includes a set of burdensome analytic requirements designed to counteract potential abuses that could result from the increased discretion provided in modern categorical-exclusions regulations. In this Note, Moriarty argues that if categorical exclusions were limited to their original form, fewer actions would be excluded, but the actions actually excluded would be protected from challenges through litigation. This Note concludes that the resulting loss of agency discretion through use of broad categorical exclusions would likely increase overall efficiency in agency decisionmaking.

In response to a perceived increase in the incidence of predatory lending, several states have recently enacted laws designed to protect vulnerable borrowers from abusive lenders. Earlier this year, however, the Office of the Comptroller of the Currency (OCC) determined that the new laws conflicted with the National Bank Act and issued a regulation preempting them. This Note argues that the OCC overstepped its congressionally delegated authority when it promulgated the regulation, and that courts should consequently invalidate it in order to allow states to continue to develop novel legislative responses to the growing problem of abusive lending. The Note proceeds in two stages. First, after canvassing the unsettled case law on the issue, it argues that courts should not categorically defer to agency decisions to preempt state laws. Because of the relative ease with which administrative agencies can preempt state laws and the real threat that preemption orders pose to state legislative independence, the judiciary should scrutinize agency preemption decisions to ensure that they are at the very least reasonable. Second, the Note turns to the substance of the OCC order, contending that it reflects an unwarranted, unnecessary, and unwise effort to meddle in states’ purely internal affairs. Because the predatory lending laws only minimally affect national bank lending powers, do not impose costs on the national banking system, and do not generate spillover effects, they do not interfere with national banks in a way that can justify the OCC’s wholesale preemption.

This Note asserts that the key to preventing reversion to violence in postconflict societies lies in the development of a civic culture among the citizenry. Civic culture is understood as the social internalization of democratic practices, which include political participation and public contestation. Accordingly, the field of transitional justice should include mechanisms that engage the members of postconflict societies directly in processes engendering civic behavior. To illustrate the foregoing thesis, this Note examines Rwanda’s traditional, community-based restorative justice institution–Gacaca–and demonstrates how it helps to promote participation and contestation. First, the Gacaca process encourages the Rwandese people to voice their concerns openly and to begin to question authority, thereby weakening the authoritarian government’s monopoly on power. Second, the Gacaca process channels the people’s discord through a peaceful dispute-resolution process rather than through violence, thus demonstrating the potential for democratic contestation to serve as an alternative to violent conflict.

This Note provides a critical analysis of the United Nations International Law Commission’s treatment of the legal interest in the Draft Articles on Responsibility of States for Internationally Wrongful Acts (Articles). It focuses on two decisions that the International Law Commission (ILC) made during the drafting process: 1) the decision to use a narrow definition of “injured state,” excluding states that suffer a breach of an obligation owed to them solely as members of the international community; and 2) the decision to replace a provision recognizing and regulating the practice of collective countermeasures with a savings clause that provides no guidance for the use of collective countermeasures, leaving the legality of such actions uncertain.

This Note argues that, although the ILC was correct to weigh the risks of allowing states broad discretion to act in the name of collective interests, the development of the law of state responsibility would have been better served had the ILC taken a more progressive approach to recognizing the interests of the international community in enforcing state responsibility. First, the ILC should have more broadly defined “injured state” to include states that suffer a breach of an obligation owed to them solely as members of the international community, but should also have limited the types of actions such states would be permitted to take in response to a breach. Second, the ILC should have adopted Special Rapporteur James Crawford’s proposal that the Articles specifically allow and regulate the practice of collective countermeasures in response to a gross and well-attested breach of certain fundamental obligations. This approach strikes a better balance between the potential value of collective countermeasures as a tool to help those without direct access to the international legal system and the risk that collective countermeasures will be abused by powerful states seeking to further their own interests.