Notes

The dramatic increase in the number of people leaving the nation’s prisons and jails has contributed to a renewed interest in safe community reentry strategies. While issues surrounding housing, employment, and recidivism have dominated the scholarly landscape in this area, far less attention has been paid to those collateral consequences which affect ex-offender access to credit and financial services. For example, government financial assistance agencies and the private lenders that participate in government-sponsored lending programs routinely inquire into borrowers’ criminal histories, and one federal court has held that criminal exposure bears a direct relationship to creditworthiness. In this Note, the author weaves fair lending principles (as expressed in the Equal Credit Opportunity Act) with the goals of effective reentry policies and argues that despite the possible existence of a correlation between criminal exposure and likelihood of default, the use of criminal history in any determination of creditworthiness should be prohibited or at least curtailed. Given the practice’s serious implications for both the ability of individual ex-offenders to reenter society effectively, as well as for the ability of receiving communities to effectuate crime prevention and community development initiatives, the author argues that the federal government ought to take the lead in developing statutory and administrative solutions that effectively fill the “advocacy gap” in credit and financial services where recourse to the courts is not available.

Margaret Jane Radin’s personality theory of ownership posits that property that is bound up with the identity of its holder deserves the highest level of protection, so long as there is an objective moral consensus that the holder’s attachment to the property is healthy. In recent years scholars have relied on Radin’s theory to claim that objects like the Parthenon Marbles are so tied to the identity of a particular cultural community that group ownership of them is justified. Furthermore, they argue that the group whose identity is bound up with an object has a stronger claim to it than a rival with no such connection or a rival whose connection has been deemed unhealthy by an objective moral consensus. Yet neither Radin nor scholars extending her theory to the cultural property context have explained how to determine when such an objective moral consensus exists. This Note argues that jus cogens norms of customary international law should be considered a source of “objective moral consensus” for the purpose of distinguishing healthy from unhealthy group property claims under Radin’s theory. Jus cogens norms are valued by so many people across different cultures that there is an objective moral consensus—or the closest thing to it—that violating them is wrong. If an object is bound up with the identity of a cultural group in a way that violates one of these norms, promotes practices that violate one of these norms, or purposefully expresses adherence to contrary beliefs, then that claim to the property is unhealthy and should not be protected against the healthy claims of other groups.

A court’s method of decisionmaking regarding interstate choice of law affects forum shopping and class action strategy. Rather than read vaguely worded state statutes with the expectation of discovering a legislative intent with respect to extraterritorial application, as the Restatement (Second) of Conflict of Laws suggests, courts should employ a rebuttable presumption that the legislature has not considered the choice of law issue. When a court is faced with an interstate choice of law question in which one potentially applicable law is a statute of the forum state, in the absence of explicit statutory language regarding how a choice of law analysis should be conducted for the forum statute in question, the court should decide which law to apply not by attempting to divine some nonexistent legislative intent but by resorting to the general choice of law principles utilized in the forum state.

A New Test for the Locally Inapplicable Standard

Ever since Puerto Rico was acquired by the United States following the Spanish-American War, Congress and the courts have struggled with applying federal law to the island. Puerto Rico has been treated alternately as a state, territory, or something in between for purposes of federal law since the island became a commonwealth in 1952. In this Note, Elizabeth Vicens argues that in determining whether a federal statute should apply to Puerto Rico, in the absence of a clear statement by Congress, courts should inquire whether the law contradicts an overriding local interest. This test is based on the language of the Puerto Rican Federal Relations Act, which states that federal laws that are “not locally inapplicable” shall be applied to the island. After supporting the proposed model of statutory interpretation, Vicens applies the test to a recent controversial application of federal law to Puerto Rico: the application of the Federal Death Penalty Act. Vicens argues that under her model, the First Circuit should not have applied the Federal Death Penalty Act in United States v. Acosta-Martinez. The Note concludes that this test will aid Congress and the courts in a murky area of law, as well as help to improve U.S.-Puerto Rican relations.

Coalitional Districts, Party Primaries and Manageable Vote Dilution Claims

In the past two decades, minority plaintiffs claiming unlawful vote dilution under section 2 of the 1965 Voting Rights Act have been required to pass the three-pronged test elaborated by the Supreme Court in Thornburg v. Gingles. In light of a recent Supreme Court case extolling coalitional districts, the future of the first prong requiring the minority bloc to demonstrate it is sufficiently large and compact to comprise a majority of a single-member district is uncertain. These districts, eluding easy classification but understood to possess significant minority voting power without the minority bloc comprising a majority of the district, have been identified as shields against section 2 and section 5 suits challenging redistricting maps that reduced the number of majority-minority districts. In this Note, Luke McLoughlin addresses how courts should approach section 2 claims by minority blocs claiming dilution of a coalitional district itself. Arguing that Gingles‘s framework of bright lines must be respected in any reconsideration of the first prong, McLoughlin identifies the ability of the minority bloc to comprise a numerical majority of a party primary as a potential criterion for defining coalitional districts and a potential benchmark for considering section 2 claims. As McLoughlin shows, however, such a criterionwould be difficult to apply in practice,as internal party rules and state ballot access laws may thwart the creation of a viable coalition. Accuracy requires a fact-based inquiry into the coalition, while Gingles urges a bright-line approach. Eschewing a wholesale renovation of the Gingles framework, McLoughlin concludes that the two countervailing concerns are best reconciled by relying on Gingles‘s latter two prongs and examining population within the primary, while remaining skeptical at the totality-of-the-circumstances stage of whether a true coalition has been formed. If courts alter the first Gingles prong to permit claims by minority blocs unable to comprise a majority in a district, McLoughlin concludes that courts must retain a corresponding alertness to the interstitial role of parties, which are capable of both facilitating and obstructing coalition politics.

A New Judicial Remedy for Defective Agency Rulemakings

Once the D.C. Circuit has concluded that a rule promulgated by an agency is in some way arbitrary or capricious, the court has at least two options: It can either vacate the rule, or remand it to the agency without vacating it. In the latter case, the agency can continue to implement the challenged rule while revising its explanation to address the defects identified by the court. This Note analyzes the D.C. Circuit’s application of the remand-without-vacatur (RWV) remedy during the decade since the court articulated a generic test for its use. This Note argues that RWV is most justified in cases where the costs of vacating agency rules are particularly high, and where the benefits in terms of improving the agency’s decisionmaking process are minimal or nonexistent. Based on a survey of the rulemaking cases in which the court has applied RWV, this Note argues that while the test that the D.C. Circuit uses to determine the appropriateness of RWV is consistent with the theoretical underpinnings justifying the remedy, the court’s application of that test is frequently flawed. This Note also documents a response to RWV that is less than ideal; agencies generally respond slowly to RWV judgments, and occasionally do not respond at all. The Note concludes that, while the D.C. Circuit possesses adequate tools to counteract agencies’ tendency to ignore judicial decisions in individual cases, it has employed them too sparingly in recent years. This Note then develops a revised approach that would promote the remedy’s beneficial aspects while limiting its negative effects.

The Red Cross, War Correspondents, and Evidentiary Privileges in International Criminal Tribunals

The International Committee of the Red Cross operates according to a policy of confidentiality, which it claims is necessary for it to carryout its humanitarian mandate successfully. The International Criminal Tribunal for the former Yugoslavia found that, as a matter of customary international law, the Red Cross is permitted to maintain its confidentiality policy at all times. This means that delegates of the Red Cross cannot be called to testify in any international criminal tribunal unless the Red Cross waives its privilege. Based on similar arguments about their need for confidentiality, however, war correspondents were granted a much more qualified privilege against testifying. In this Note, Emily Berman argues that Red Cross delegates and war correspondents are more similarly situated than it initially might seem. The Note uses a comparison of the two as a case study to illustrate that conferring absolute privilege on the Red Cross is unnecessary in the pursuit of humanitarian accountability. Therefore, international criminal tribunals should articulate a narrow, uniform test for privilege that applies to both the Red Cross and war correspondents. Under this test, in which the court retains the final decisionmaking power over who must testify, reluctant witnesses from both groups would be required to present confidential materialto the court when the information in their possession both goes to a core issue in the case and is not available from any other source.

Every year, police officers conduct thousands of searches without search warrants, relying instead on individuals’ consent as authority for these searches. If an individual later denies that his consent was given voluntarily, the trial court must review his claim and determine whether to suppress evidence obtained during the consent search. The question of voluntariness is difficult to assess, however, despite attempts by appellate courts to provide guidepost factors for trial court analysis. For this Note, the author gathered consent search cases and used statistical methods to analyze whether a correlation exists between a federal district court’s decision to suppress evidence and various factors relating to the voluntariness of consent. The study shows a statistically significant correlation between the suppression of evidence and factors related to police misconduct, and the absence of correlation for factors not related to police misconduct. Drawing on these statistical findings, this Note concludes that the voluntariness requirement is a legal fiction serving to balance the needs of effective law enforcement against the rights of suspects.

Over the past several decades, Congress has turned increasingly to tax expenditures rather than to direct outlay programs to implement social welfare programs. Such a trend creates economic distortions and has proven disadvantageous to taxpayers in lower socioeconomic classes. The newest twist is in the area of disaster relief. Unprecedented before 2001, tax relief targeted to a disaster in a specific geographic region has now been established on two occasions-in the wake of the 9/11 attacks and in the aftermath of Hurricane Katrina. This Note argues that, in a disaster, both the vulnerability of lower-income taxpayers and the weaknesses of the Internal Revenue Code as an instrument for social programs are amplified. This problem was particularly acute after Hurricane Katrina. Congress should therefore reconsider the current trend toward using tax expenditures rather than direct relief in such situations, or alternately structure other relief to correct for its shortcomings.

When qualified mental health evaluators’ recommendations for the involuntary civil commitment of state-dependent minors complement a state’s judicially recognized interests in promoting heterosexual behavior among state-dependent minors while controlling state-dependent girls’ heightened heterosexual behaviors, the courts are unlikely to serve as watchdogs of mental health evaluators’ vast discretionary powers. The contemporary resonance between the courts’ and the mental health community’s discourses on adolescent sex facilitates the civil commitment of state-dependent heterosexual girls and nonheterosexual boys, solely on the basis of their sexual behaviors. This powerful resonance threatens the personal autonomy of healthy state-dependent heterosexual girls and nonheterosexual boys. In light of this threat, Morey proposes that before qualified evaluators can recommend adolescent wards of the state to psychiatric hospitals for sexualized behaviors, they should be required to express in writing how the adolescent’s behavior is a direct symptom of an emotional disturbance from past sexual abuse. Otherwise, qualified evaluators’ ability to rely on gender-based stereotypes of what constitutes appropriate or risky sexual behavior among state-dependent minors will remain largely unchecked.