Notes

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.

In this Note, the author offers a broad-based critique of the statutory scheme that governs how the federal government must safeguard data on its information systems. Examining two illustrative case studies from major federal agencies, the author identifies serious structural flaws in the design and implementation of the relevant legislation. Through the lens of bureaucratic and organizational theory, he explains why the legislation is not well-suited to achieving comprehensive information security-and why the federal government’s track record in this area has been so poor. Finally, the author proposes five concrete reforms Congress should enact to address these shortcomings.

In the war on terror, the Executive, through the Central Intelligence Agency (CIA), has detained, mistreated, and tortured suspected “enemy combatants” in secret prisons around the world. Shocking evidence of torture and denial of due process has provoked widespread condemnation. Yet, the Executive continues to deny that its agencies-in particular the CIA-are prohibited by law from engaging in such activities. Scholars have argued that the Executive’s actions violate both international treaties and domestic statutes prohibiting torture. This Note takes a different approach and contends that, even in the absence of treaty or statutory law, the Constitution limits the authority of an executive agency like the CIA to act against foreigners abroad. The author relies on Supreme Court case law on the extraterritorial application of the Constitution, which holds that certain fundamental constitutional provisions limit the government’s actions wherever and against whomever it acts. She also highlights references to the fundamental rights approach in recent war on terror cases. She then argues that such fundamental rights include, at minimum, prohibitions against indefinite detention and torture under the Fifth Amendment Due Process and Self-Incrimination Clauses and the Eighth Amendment. Ultimately, she concludes that the Constitution simply does not permit the United States to engage in indefinite detention or torture-regardless of the end, the place, or the victim.

The International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda adopted Rule 92 bis-Proof of Facts Other than by Oral Evidence-as a good faith attempt to hone the rules of evidentiary admissibility and provide a better balance between fairness and efficiency. While Rule 92 bis provides certain benefits, this Note argues that because of the unique nature and purpose of the Tribunals, this Rule is not the optimal framework within which to determine the admissibility of deceased witness statements. Applying Rule 92 bis to prior statements of deceased witnesses needlessly reinforces existing incentives to kill important witnesses before they can testify in person at the Tribunals and unnecessarily limits the admissibility of testimony of classes of victims that survived the initial crimes but did not live long enough to testify in person in front of the Tribunals. This Note presents two ways that the Tribunals could admit written statements of deceased witnesses while maintaining many of the important benefits of Rule 92 bis, and consequently, provide a better balance between fairness and efficiency than is currently achieved under Rule 92 bis.

Recent settlements in the United States and France of human rights litigations against oil companies Unocal and Total have made it clear that litigation is a viable tool for holding companies to account for their involvement in human rights abuses abroad. This Note argues, however, that the Unocal and Total settlements inadequately reflect the public importance of the cases, which sought to force Unocalnamely, the prospective intervention in ongoing situations of injustice and the articulation of public norms. Instead, by channeling much of the settlement funds into community development projects unrelated to the human rights abuses, and by failing to demand any fundamental changes in the defendant companies’ conduct, the settlements replicate a pernicious element of contemporary “corporate social responsibility” efforts: the characterization of good corporate behavior as a matter of charity rather than as a matter of right.

This Note argues that future settlements of human rights cases against corporations can—perhaps more effectively than fully litigated cases—better reflect the promise of public law litigation by setting up legally binding systems to monitor corporate conduct. Such systems could effectively prevent the type of human rights-threatening behavior transnational corporations are most likely to commit. Furthermore, such monitoring systems would be norm-producing, insofar as they would continually elucidate how corporations threaten human rights, and would generate an evolving repertoire of ways to address such threats. In so doing, monitoring systems could serve as bases for NGOs’ international human rights campaigns and as models for replication outside of the litigation context, thus further disseminating norms of appropriate corporate conduct.