Notes

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.

Making natural resource management decisions in roadless areas of our national forests has long been a contentious issue. The Forest Service, under President Bush, recently passed a rule allowing states to petition the administration regarding how they wish these roadless areas to be managed. The rule envisions that states will collaborate with all concerned parties in formulating these petitions, but sets no standards ensuring such a process. Given the difficulty of achieving collaboration, the lack of standards makes this purported goal less likely and suggests that the rule may have been an attempt to open roadless areas to development. Nonetheless, this Note urges states and stakeholders to undertake collaboration and argues that the administration should use its oversight to encourage this process rather than unwanted development. In this way, the new rule has the potential to facilitate broadly acceptable management policies and provide valuable experience in the field of collaborative environmental management.

In the wake of several high profile school shootings at the end of the 1990s, school administrators struggled with the question of how to predict and prevent future attacks. They were not alone. Case law reveals that judges, too, have been moved by these events, and they are trying to do their part to curb school violence, often by punishing threats of violence made by student speakers. The Supreme Court has held that “true threats” are not protected by the First Amendment based on three justifications: preventing fear, preventing the disruption that follows from that fear, and diminishing the likelihood that the threatened violence will occur. In this Note, the author challenges the application of the true threat doctrine to student threats on three grounds. First, the doctrine is excessively vague and does not provide judges with sufficient standards, which leads to disparate enforcement across cases. Second, recent evidence suggests that punishing threats as a proxy for punishing or preventing future violence—which is explicitly endorsed by the Court’s true threat jurisprudence—is ineffective in the context of student speech. Third, the author identifies a serious policy concern implicated by any punitive response to student threats. To address these shortcomings, Stanner concludes with a series of recommendations for different courts that are designed to improve both the formulation and the implementation of the true threat doctrine.

What Professor William Eskridge once called “the new textualism” is not so new anymore. Statutory textualism has adherents on the Supreme Court, throughout the federal judiciary, and, increasingly, in academia as well. And almost all of them are politically conservative. Why is that true? This Note contends that it need not be. Taken at face value, textualism serves neither conservative nor liberal ends. However, those most closely identified with textualism—namely, Justice Antonin Scalia and Judge Frank Easterbrook—practice a form of textualism that creates institutional dynamics that tend to reconcile with a preference for limited government. Their textualism, which this Note dubs “clarity-driven textualism,” constrains the functioning of Congress, executive agencies, and judges in ways that make government hard to do: Statutes are hard to write, agencies have tightly circumscribed authority, and judges have few opportunities to exercise discretion. This Note argues that textualism alone will not necessarily produce these outcomes. By identifying how clarity-driven textualism departs from the bare requirements of textualism itself, this Note seeks to rescue textualism’s powerful interpretive approach from its current political entanglements.

In constitutional challenges to juvenile curfews, the “tiers of scrutiny” framework usually relied upon to resolve Equal Protection cases has failed to constrain courts’ analyses. Courts have applied all three tiers of scrutiny, have reached opposite results under each tier, and have explicitly modified various tiers. This result arises from a discord between the problem presented by juvenile curfew laws and the tiers of scrutiny framework itself: Curfew laws impact neither a fully fundamental right nor a fully suspect classification, but nevertheless affect a substantial liberty interest and a vulnerable class of people. This Note argues that courts should bypass the abstract discussion of “tiers” and “fundamental rights” and focus directly on what role courts should play, if any, in shielding juveniles from a democratically enacted curfew. The Note proposes an aggressive form of intermediate balancing similar to the Second Circuit’s approach in Ramos v. Town of Vernon.

State laws regulating aliens are increasing in number and scope. Yet the current doctrinal approaches to assessing the constitutionality of these laws fail to provide a predictable or desirable framework for distinguishing between permissible and impermissible state regulation of aliens. This Note, by analogizing to the Dormant Commerce Clause doctrine, aims to offer another approach to reviewing state laws regulating aliens—one that takes into consideration the state-to-state dimension of the national interests at stake in immigration law and policy, and that may provide a better means of addressing animus-based state laws.

Brady v. Maryland requires prosecutors to disclose to criminal defendants all material, favorable evidence in the government’s possession. Evidence is material if its disclosure would have created a reasonable probability of a different verdict. Though materiality may correctly guide appellate courts in deciding when to reverse convictions, the author contends that it is both impractical and unconstitutional to ask prosecutors to use materiality as the measure of their disclosure obligations before trial. It is impractical because it requires prosecutors convinced of the defendant’s guilt to decide what combination of evidence, if disclosed, would create a reasonable probability of an acquittal at the end of a trial that has yet to begin. It is unconstitutional so long as due process means something other than that which produces the right outcome. This Note suggests that prosecutors should employ a balancing test based on the interaction of Brady disclosure rules and the defendant’s right to a trial by jury to determine when favorable evidence must be disclosed. This balancing test provides prosecutors with a disclosure standard that is simple, constitutional, and compatible with courts’ continued use of the materiality standard after trial.