Notes

Almost twenty years ago, the Supreme Court’s decision in Tanner v. United States established that under Federal Rule of Evidence 606(b) juror intoxication was an “internal” influence to which jurors were incompetent to testify. Since that decision, many states have discarded their diverse approaches regarding the admissibility of juror testimony on juror misconduct in favor of Tanner’s external/internal framework.

This Note demonstrates why the policy considerations justifying restrictions on juror testimony are not well served by Tanner’s external/internal framework. The Note offers states an alternative approach to the issue of juror misconduct which would better protect both jurors and litigants.

Forestry certification seeks to lessen the environmental impacts of private forestry management practices by providing information to consumers. Certified producers attach a uniform label to their wood products to assure buyers that the products were produced in a sustainable manner. In the United States, forestry certification has existed for more than a decade, yet industry participation in such programs remains low. This Note argues that low industry participation results from a lack of consumer demand for certified forestry products and the failure of certification stakeholders to address this lack of demand. While there are many obstacles to increasing consumer demand, this Note suggests that brand management concepts taken from the field of marketing can help tackle these challenges and, in turn, help increase market acceptance of forestry certification in the United States.

Why does the race of judges matter? This Note argues that racial diversity in the judiciary improves legal decisions about political morality. Judges play a substantial role in regulating our political morality; at the same time, race and ethnicity influence public views on such issues. In cases that involve difficult legal questions of political morality, judges should seriously consider all moral conceptions as potential answers. Racial and ethnic diversity is likely to improve the judiciary’s institutional capacity for openness to alternative views—not because judges of any given race will “represent” a monolithic viewpoint, but because of the likelihood that judges of a particular race or ethnicity will be better positioned to understand and take seriously views held within their own racial or ethnic communities. Judicial dialogue, taking place within appellate panels and across courts, serves to diffuse alternative viewpoints more broadly. Greater judicial willingness to consider disparate moral views should ultimately result in better decisions regarding political morality. Specifically, the judiciary may fashion new compromises to resolve political-moral dilemmas, judges and society may better understand the contours of such dilemmas, and the public may even arrive at new conclusions regarding basic questions of political morality.

The 2004 federal elections witnessed an unprecedented rise in activity by independent political organizations called “527s.” The current campaign finance regime limits how much individuals and groups may contribute to candidates, parties, and political committees, but leaves 527s virtually unregulated. As a result, wealthy donors were able to circumvent federal contribution limits by giving large amounts to 527 groups. In 2004, these groups raised millions of dollars, which they spent on highly influential advertisements and voter mobilization campaigns. The groups were so successful that they are expected to play a significant role in the 2006 and 2008 elections, and both Congress and the Federal Election Commission (FEC) have considered regulating the groups more closely.

This Note examines the role of 527 organizations in the 2004 election and proposes ways to prevent future circumvention of the campaign finance regime. It argues that Congress should address the 527 problem by passing legislation regulating coordination between outside groups and political campaigns. A statute regulating coordination presents several benefits over current proposals for 527 reform. First, it is more likely to satisfy the constitutional limits on campaign finance regulation. Second, it provides a long-term solution that is not dependent on how a group is classified under tax or campaign finance law. Third, it will encourage donors seeking to buy influence over candidates to give smaller, “hard money” contributions. Finally, congressional legislation will avoid the delay and confusion seen in recent FEC efforts to regulate coordination.

Although stare decisis is a firmly established doctrine tracing its roots to fifteenthcentury English common law, the Rehnquist Court developed it in remarkable ways. The Court’s decisions effectively made liberty considerations an important stare decisis factor in constitutional cases. Where prior decisions took an expansive view of the liberty protections of the Constitution, they were more likely to be upheld, and vice versa. This Note analyzes this development, perhaps best exemplified by the differing outcomes in Casey and Lawrence, as well as its implications for the future jurisprudence of the Supreme Court.

Despite a broad commitment to the liberalization of trade in goods and services, Member States of the World Trade Organization (WTO) retain legal authority to impose trade-restrictive measures “necessary to protect public morals.” As a matter of first impression under WTO law, in April 2005 the WTO Appellate Body interpreted the term “public morals” as it is found in the General Agreement on Trade in Services (GATS). The Appellate Body held that certain U.S. laws prohibiting the cross-border provision of Internet gambling services, alleged by the United States to be necessary to protect U.S. public morals, were inconsistent with U.S. obligations under GATS. This Note argues that the test adopted by the Appellate Body to determine whether a given trade-restrictive measure is “necessary to protect public morals” improperly impinges on the autonomy of WTO Member States. The Note proposes an alternative doctrinal framework which would better protect Member State autonomy while guarding against potential protectionist abuses and trade-regulatory inefficiencies. The increasing likelihood that trade-morality conflicts will arise in a heterogeneous WTO, the extensive employment of public morals clauses in trade practice worldwide, and the potential relevance of the public morals clause to the integration of international economic law and human rights suggest the growing importance of this emerging area of international economic law.

This Note grows out of two recent efforts by the Bush administration to shape media coverage of its programs: secret payments to columnists and the dissemination of fake press reports. It explores the little-studied history of such covert news management tactics and shows that, contrary to the prevailing wisdom, such attempts to manage the media by stealth did not originate with the Bush administration. Though these tactics may be time-honored, they have continually sparked criticism that they compromise the independence of the media. This Note further analyzes the treatment of government news management under current law. After showing why the regulatory regime is irredeemably flawed, this Note contends that judicial intervention is necessary to address core constitutional concerns. Specifically, it concludes that news management tactics that conceal the government’s role as a source are unconstitutional forms of viewpoint discrimination that violate the First Amendment.

Recent crises stemming from diminishing groundwater resources highlight the failure of existing water allocation agreements to account for changing circumstances. This note focuses on two case studies—a dispute over the All-American Canal between the United States and Mexico and a decade-long litigation between Kansas and Colorado regarding the Arkansas River Compact. Domestic and international issues stem from the same challenges of highly technical decisions, changing circumstances, and historical sensitivity of water rights. This Note argues that domestic and international water agreements place too much emphasis on onetime allocations despite warnings that imposing hard and fast rules unnecessarily burdens the ability to adapt to future changes in water conditions. These two case studies further demonstrate that traditional ex post dispute and litigation mechanisms are no longer adequate. After considering challenges to reform, this Note argues that the increasing urgency of water crises around the world have made conditions ripe for institutional change. As a solution, this Note proposes creating joint management institutions that provide ongoing expert administration for the changing dynamic of water resource crises.

“Cruelty-free” labeling claims are presently unregulated, resulting in market failure. Consumers make purchasing decisions with incomplete and misleading information and are therefore unable to encourage manufacturers to follow consumer preferences and alter their animal testing practices. Building on scholarship in reflexive law, this Note outlines a strategy for remedying the proliferation of misleading “cruelty-free” claims through standardization. Winders argues that standardization can most effectively and efficiently be achieved through a voluntary, third-party certification program that sets a labeling standard and then monitors labeling claims, buttressed by traditional false advertising law.

This Note argues that customary international law (CIL) requires states of first refuge to integrate long-term refugees living within their borders. First, it discusses the methods that courts and tribunals use to identify principles of CIL and explains the requirements of state practice and opinio juris. Next, it applies these methods to the principle of long-term refugee integration, demonstrating that the community of nations generally integrates refugees within a single generation and widely acknowledges a legal obligation to do so. Then, after concluding that the principle of longterm refugee integration is binding under CIL, this Note evaluates the extent to which host states for Palestinian refugees have fulfilled their duty to integrate refugees residing within their borders.