Notes

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.

The Equal Pay Act of 1963, though initially considered a victory for working women, has proven unsuccessful for women executives, administrative personnel, and professionals. This Note argues that plaintiffs bringing Equal Pay Act claims have faced courts whose interpretation of the law has effectively excluded women in higher level positions. Through an examination of the Act’s history and the history of similar exemptions in New Deal legislation, this Note argues that ideas about work, imported from early conceptions of managers, executives, and professionals in New Deal legislation, continue to influence courts’ interpretation of the Act. This Note offers two alternative solutions to this problem: The first prescription is to reexamine the history surrounding the Equal Pay Act with the aim of including workers who effectively have been excluded by judicial interpretation. The second is to reinstate in the Equal Pay Act the exemption as originally enacted so that the apparent inclusion of the these groups does not discourage legislative attempts to correct the problem.

For more than three decades, observers have vigorously debated the desirability of judicial federalism–the practice of state courts interpreting their state constitutions to provide greater protections for individual rights than does the U.S. Constitution. This Note first discusses the recent history of judicial federalism and the theoretical debate concerning it. The Note then uses two current areas of legal struggle, same-sex marriage and government funding of religious education, to illustrate the effect on judicial federalism of two important structural limitations: the greater likelihood that state constitutions will be amended to overturn politically unpopular court decisions and the supremacy of federal law. The Note concludes that, although those structural features make it less likely that state courts will aggressively expand individual rights, they also serve to legitimate judicial federalism by alleviating its potentially negative aspects and mitigating the countermajoritarian difficulty that plagues federal constitutional decisions. Thus, although state courts engaging in judicial federalism generally will not attempt to fly too high as did the mythological Icarus, nor will they remain flightless like the ostrich. Rather, judicial federalism will continue to serve as a useful means for incremental legal change in a healthy, dynamic federal system.

Every year, hundreds of thousands of passengers arrive at their local airport to discover that their flight is overbooked. Unbeknownst to most travelers, their damages for the airlines’ breach of contract are governed by federal regulation. Since 1978, 14 C.F.R § 250.5 has set a statutory cap of four hundred dollars for all passengers bumped from domestic flights. In this Note, Elliott Blanchard examines the effects of this provision on passenger and airline behavior by applying modern contract theory to the problem of airline overbooking. He begins by examining the economic forces that led airlines to overbook flights and the subsequent federal government regulatory response in the 1970s. He observes that while a uniform system of compensation for all passengers made sense during the period of airline regulation, increased heterogeneity in both carriers and passengers now make such a system inefficient. While the market for airline travel has changed dramatically since the end of regulation, the statutory ceiling on damages has remained constant. The author argues that this cap undercompensates passengers for breach by the airlines, and rewards the carriers that overbook aggressively. Given the information asymmetries regarding the likelihood of being bumped, airlines have the opportunity to exploit passengers who cannot accurately discount an airline’s probability of performance. As a solution, the author suggests a repeal of the maximum damage amount coupled with increased disclosure of airline overbooking rates, which would encourage airlines to compete on performance as well as price.

The Supreme Court’s decisions in the Turner Broadcasting cases ushered in a new era of rigorous judicial oversight of regulations aimed at shaping the economic structure of the media industry. The Turner decisions, and especially their application by lower courts, have expanded the range of regulations subject to heightened First Amendment scrutiny, consistently granted lower levels of deference to legislative and administrative judgments, and applied a degree of economic scrutiny of regulatory choices unseen since the Lochner era. In this Note, Michael Burstein argues that such scrutiny is inappropriate in light of the quickening pace of technological and economic change that marks the modern information environment. He observes that the technological balkanization of First Amendment jurisprudence has outlived its usefulness and that applying a unitary standard to all activities of a particular type of media fails to focus judicial attention on the entity’s core speech activities. Instead, Burstein proposes that courts draw a distinction between regulations that impact content production or editorial choices and those which aim to structure the distribution of information. The former remain deserving of heightened scrutiny, but the latter implicate a long tradition of allowing government regulation to improve the information order. Because government necessarily must make choices among competing instrumental arrangements, none of which implicates a particular normative theory of the First Amendment, such choices are entitled to judicial deference. As technology blurs the lines between different media outlets, this framework should provide the needed flexibility to protect the First Amendment interests of both media entities and the public they serve.