Notes

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.

Ensuring Minimal Deliberation Through Judicial Review of Congressional Processes

Federal statutes are enacted that, in whole or in part, have failed to receive even minimal attention from Congress. Because the most obvious solution to this problem-procedura lreform of Congress’s internal legislative rules-has not been forthcoming, Victor Goldfeld attempts to put forth the strongest possible case for a judicial approach to addressing this problem. Drawing on recent Supreme Court decisions, Goldfeld outlines “legislative due process”-a form of judicial review in which courts would examine the legislative process by which federal statutory provisions are enacted to ensure that such provisions received at least a minimal level of congressional deliberation. This would improve the quality of congressional policymaking, and help minimize the ability of special interest groups to game the legislative process. He eschews coming to a firm conclusion on whether legislative due process is a viable model of judicial review, instead providing the reader with a framework for approaching that question.

Minority and City Schools in Education Finance Reform Litigation

This Note’s primary purpose is to test Professor James Ryan’s assertion that at least two extra legal factors-the predominant race and setting of plaintiff school disricts-have an influence on the outcome of education finance reform litigation. Although the subject matter of this Note is education finance reform litigation, its findings may be significant to readers who have an interest in judicial decisionmaking as well. Yohance C. Edwards and Jennifer Ahern conduct a quantitative study that surveys the education finance reform litigation that has reached the respective state supreme courts of forty-one states. After analyzing the various factors that have been evaluated in previous quantitative studies of education finance reform litigation, the authors conclude that none of these factors explains why minority and city school districts fare poorly in this litigation. This Note is the first quantitative study of education finance reform litigation to include the number of plaintiff school districts as a variable. The authors find that along with race and school district setting, this variable does have an association with outcome. The authors conclude by discussing how the results of their study suggest that multiracial coalition building may be beneficial for all potential education finance litigation plaintiffs.

Since 1976, the California Coastal Commission has been charged with protecting California’s 1100-mile shoreline. The Commission has been both celebrated for protecting California’s coastal resources and denounced for exerting totalitarian control over private property rights and commercial development. Recently, a California appellate court found the Commission in violation of the state constitution’s separation-of-powers doctrine because of the California legislature’s ability to appoint and remove at will two-thirds of the Commission’s twelve members. In a special assembly, the legislature rushed to amend the Commission’s composition and provide the legislative appointees with fixed terms. The California Supreme Court must now determine whether the ad hoc response alleviates the constitutional concerns.

In this Note, David R. Carpenter argues that the California Supreme Court still should find the Commission unconstitutional because of the legislature’s continued ability to appoint two-thirds of the commissioners. Examining two recent California Supreme Court decisions, the Note identifies two approaches to the separation-of-powers inquiry. One approach asks whether the legislature’s appointment power defeats or materially impairs the governor’s inherent authority to supervise the Commission’s executive powers. The second approach, and that taken by this Note, frames the issue primarily in terms of limitations on legislative power and the problems created when legislators operate beyond their statutory role. This Note argues that appointment power enables and encourages legislators to impose arbitrary influence while abdicating their responsibility to make good law. Utilizing principles from public choice theory, this Note argues that separation of powers should guard against “the twin problems” of faction and governmental self-interest. Those concerns are heightened in this case by the scope of the Commission’s authority and jurisdiction,along with the powerful interests it regulates. Instead of minimizing political influence over Commission actions, the appointment structure has had the opposite effect. By enforcing the separation-of- powers doctrine,the California Supreme Court would take an important and principled action that would not destroy the Commission, but rather potentially would improve its integrity and independence.

In November 2001, after delaying the release of President Reagan’s presidential papers, President Bush issued Executive Order 13,233, which limits the ability of the public to access presidential documents by giving the sitting president and former presidents an effective veto over the release of their records. In this Note, Stephen H. Yuhan argues that Executive Order 13,233 is an impermissible aggrandizement of presidential power at the expense of Congress, the National Archives, and the public. In an effort to find the outer limits of the President’s power to issue executive orders, Yuhan looks first to the watershed case of Youngstown Sheet & Tube Co. v. Sawyer. Finding that Youngstown fails to yield any definitive answers, Yuhan then draws on case law and legal scholarship on the President’s appointment and removal powers. Yuhan contends that preventing arbitrary decisionmakinginterested considerations rather than the public good, Yuhan concludes, the executive order violates separation of powers.