Notes

The United States Supreme Court currently understands parenting as a constitutionally protected, substantive due process right. Yet the divisive nature of the doctrine of substantive due process has resulted in a confusing cacophony of pluralities, concurrences, and dissents that offer little guidance to lower courts. In this Note, Merry Jean Chan offers a new model with which to understand the Court’s parental rights jurisprudence. Identifying the expressive aspects of both procreation and childrearing, she argues that the constitutional foundation for the protection of parental rights lies in the First Amendment. The First Amendment, however, is only part of the story. The democratic state has a valid interest in children and the continuing production of functioning, diverse citizens. This interest may conflict with parental prerogative. Chan observes that intellectual property law mediates a similar tension between state interests and expressive rights. She proposes the “authorial parent paradigm, ” conceiving exclusive parental rights as an incentive for and reward to those who meaningfully and responsibly contribute to the perpetuation of democracy through reproduction and childrearing. The interplay between the intellectual property analogy and the protections of the First Amendment serves to recognize both the rights of parents and the interests of the state.

Since 1997, several states have enacted legislation to increase patients’ ability to sue their Managed Care Organizations (MCOs) for negligent acts. These statutes address the obstacle imposed by the Employee Retirement Income Security Act (ERISA) preemption clause, which severely limits the exposure of MCOs to tort liability. In this Note, Wendy Silver acknowledges the usefulness of these statutes, but posits that they inadequately address the ERISA preemption problem. Under these statutes, patients may bring suit only if their MCOs negligently denied, delayed, or modified their physicians’ recommended course of treatment. Patients whose MCOs unduly and negligently influenced their physicians’ recommendations, however, cannot seek recourse against their MCOs. Silver argues that this loophole permits MCOs to skirt the liability these statutes provide by altering the way in which MCOs influence doctors. Silver concludes by proposing a statutory scheme that would increase MCOs’ exposure to liability, providing MCOs with sufficient financial incentives to maintain the proper quality of patient care.

In this Note, Robert Alexander Schwartz assesses the state of the debate in the latest chapter of the ever-unfolding law of arbitration. What works for high-value agreements between sophisticated parties in arms-length negotiation may not work for contracts of adhesion between businesses and consumers. Focusing on disputes arising under the Truth in Lending Act (TILA), Schwartz analyzes recent case law upholding arbitration agreements contained in consumer-lending contracts of adhesion, as well as recent scholarship criticizing the courts’ actions. He concludes that both the courts and the scholars have it wrong: Neither arbitration as presently constituted nor class action lawsuits can provide individual justice to TILA plaintiffs. Schwartz suggests an alternative legal framework for attacking unfair arbitration clauses while offering a set of modernizing improvements that might make arbitration a viable tool for the resolution of TILA claims and other consumer agreement disputes.

On three occasions, administrative agencies complied with orders of new Presidents to delay the effective dates of “midnight regulations” promulgated in the final days of the outgoing administration. Although rulemaking pursuant to presidential directives is increasingly common, the agencies’ exclusive reliance on presidential authority in these instances is unusual; the delays thus presented a rare opportunity for judicial review of presidential rulemaking. In this Note, B.J. Sanford argues that the delays were illegal. First, they cannot withstand the traditional “hard look” review of administrative action because they do not contain adequate justifications grounded in the authorizing statute. More importantly, by relying on presidential decree rather than statutory authority, the agencies crossed the thin formal line be- tween legally bounded administrative rulemaking and straightforward legislation, producing a constitutionally unacceptable concentration of arbitrary power. Although the immediate impact of this violation may be small, the consequences of repeated acquiescence to it may be much greater, as even small formal deviations, if not consistently challenged, can threaten the system of dispersed power contemplated by the Constitution.

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.