Notes

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.

The Israeli-Arab conflict remains one of the longest running disputes in history. The cycle of battle and negotiation has strewn the landscape with failed attempts at peace and generated decades of discussion. Much of this discussion has focused on the concern over human rights violations, overshadowing analysis of potential political and legal resolutions to the conflict. At the center of the human rights discussion stands the Fourth Geneva Convention, an international agreement codifying certain rules of war designed to protect civilians caught in the midst of conflict. The bulk of the literature calls for Israel’s application of the Fourth Geneva Convention and hones in on methods for Convention enforcement. In this Note, however, David John Ball argues that the Final Record of the Diplomatic Conference from the drafting of the Fourth Geneva Convention, or the travaux prdparatoires, makes clear that the Convention does not apply to nonstates. The Note undertakes a close reading of the travaux and finds that the widely accepted interpretation of the Fourth Geneva Convention contained in the Pictet Commentary cannot justify its application in the Middle East context. Specifically, the travaux reflects that the drafting states’ concerns over sovereign rights following World War II led to a disconnect between the Convention’s allegedly humanitarian aim of protecting civilians above all else and its capability to do so in all situations. Instead, the drafting states neither intended nor created a treaty capable of application to the complex situation existing in the Middle East. The unique history and prolonged occupation of the region, given the statements contained in the travaux, reveals that the Fourth Geneva Convention is not applicable to the conflict between Israel and the nonstate entity commonly known as “Palestine.” This Note concludes that eliminating incorrect assumptions about the applicability of the Fourth Geneva Convention is crucial to making progress toward political and legal resolutions to the conflict.

In the postcolonial world, many developing nations struggle to manage significant populations of different ethnic groups, religions, and nationalities within their borders. There has been a concentrated effort on the part of many nations to provide protection for cultural groups, even to the extent of allowing cultural and religious groups to define the personal law that will govern their members. Often, however, the effort to provide freedom for cultural groups to practice their beliefs conflicts with the ideals of equality and choice for women that are central to the liberal feminist movement. In this Note, Catherine Hardee surveys the theoretical literature surrounding the debate between multiculturalism and feminism and advocates for the use of a middle-ground approach that balances the rights both of cultural groups and women-giving minority groups protection from the law of the majority if and only if, their practices do not interfere with the rights of individuals within that culture to fully participate in society. Hardee then examines Kenyan marital law to see how that balance is struck. She finds that the multiple types of marriages available to Kenyan women create something of a market in marriage with the potential to amplify women’s voices through choice. Practical problems, however, lead to inefficiencies in the market that threaten women’s rights. To adequately protect women’s interests these inefficiencies must be addressed to ensure that market outcomes accurately reflect the preferences of women within the cultural group.

This Note reinterprets and recontextualizes the pronouncement in Employment Division v. Smith (Smith II) that exemptions from generally applicable laws will not be granted unless claims of free exercise are accompanied by the assertion of another constitutional right. It argues that when Arab American Muslims, and others who are of minority race and religion, bring claims for exemption from generally applicable laws on the basis of free exercise and equal protection principles, they ought to be able to invoke Smith II‘s hybridity exception, thus meriting heightened judicial scrutiny and increased solicitude from courts.

The jurisdiction of the Court of Appeals for the Federal Circuit is governed by the well-pleaded complaint rule. In Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., the Supreme Court held that counterclaims-permissive or compulsory-cannot operate to create jurisdiction under the rule. The Holmes decision has been the target of numerous commentators because of its effect on patent law. The crux of the criticism is that the policies supporting the decision only make sense with respect to the well-pleaded complaint rule as applied to federal question jurisdiction. Further, the decision is alleged to promote forum shopping in patent law and threaten the very goals behind the creation of the Federal Circuit. In this Note, Ravi Sitwala rejects the criticism of the Holmes decision. He begins by examining the decision and the policies supposedly contravened by it and then shows that the harm to these policies is overstated greatly. Holmes increases only slightly the ability of litigants to engage in forum shopping,and would allow only a minimal number of patent cases to reach regional circuit courts or state courts. Sitwala goes on to demonstratet he importance of the policies behind the decision, as it protects plaintiffs’ mastery over their cases. Although concluding that the decision should not be overruled-legislatively or otherwise-he recognizes that some issues of patent law may come before regional circuit or state courts. Accordingly, he proposes a model for these courts to adjudicate patent law issues. This model analogizes the problem to the one faced by federal courts when deciding state law issues, and recommends that courts follow Federal Circuit law. Thus, when available, precedent should be followed, and when unavailable, courts should either predict the law or certify the questions to the Federal Circuit, much like in the Erie context.