Notes

The federal circuit courts are divided on the question of whether the federal courts’ supplemental jurisdiction power encompasses permissive state law counterclaims that lack an independent basis of federal jurisdiction. By analyzing the arguments set forth in various circuit court decisions, this Note develops a new approach for assessing the availability of supplemental jurisdiction over permissive state law counterclaims. It argues that the federal courts may assert jurisdiction over state law counterclaims only when the federal interest supports hearing those state law claims.

The Office of Foreign Assets Control (OFAC) is charged with administering the United States’ trade sanctions programs. These programs conflict with the First Amendment when they prevent publishers and editors from working with authors from sanctioned countries. This Note highlights the shortcomings of OFAC’s pub- lishing regulations. It focuses on the agency’s exclusion of foreign government officials (“the government exception”) from the First Amendment protections given to those who engage in publishing-related activities. The Note argues that the government exception amounts to an improper prior restraint under the First Amendment and creates the potential for censorship. The Note then challenges and critiques national security– and economic-based justifications for the government exception. Lastly, it proposes regulatory and policy-based reforms to ensure that sanctions programs can function without sacrificing the rights and protections to which publishers, authors, and editors are entitled under the First Amendment.

This Note argues for a compensation mechanism in cases where United Nations peacekeepers have violated the rights of those whom they should be protecting, focusing in particular on cases of sexual abuse. In light of the current absence of clear mechanisms for accountability, the United Nations must take action to compensate victims in order to preserve its organizational immunity and its discretion in waiving the immunity of peacekeepers. This Note examines the current legal regime and current responses by the United Nations, reviews the pressing need for greater victim compensation, and evaluates theories of employer liability and state responsibility as they apply in the peacekeeping context. It concludes that current international law supports a compensation mechanism that is normatively (if not legally) required.

Though the jurisdiction of US courts is broad enough to give many foreign plaintiffs the ability to file suit here, the doctrine of forum non conveniens (FNC) enables a court to dismiss a case because another forum—typically the plaintiff’s home forum—would be more convenient for it. FNC dismissal is warranted only if the alternative forum is adequate, available, and more convenient for the case. Often, the alternative forum’s availability is a nonissue. However, many Latin American countries subscribe to a system of preemptive jurisdiction, which extinguishes their courts’ jurisdiction once a case is filed elsewhere. This system would seem to block the use of FNC by making the alternative forum unavailable, but U.S. courts have not treated this issue consistently. Some courts have reached divergent results using the same evidence, and some have avoided the inquiry altogether by making dismissals conditional. This Note analyzes and explains courts’ inconsistent treatment of Latin American rules of preemptive jurisdiction by illustrating certain subtle but crucial doctrinal missteps. The Note argues that FNC doctrine requires courts to analyze a foreign forum’s availability from that forum’s perspective while also paying heed to the movant’s burden of persuasion. Yet this doctrinally honest approach could preclude courts from using FNC to mediate between important policy concerns, as is usually possible. This Note identifies these competing concerns and proposes a possible solution.

In 1996, South Africa’s transformative Constitution inspired human rights activists worldwide by incorporating justiciable economic and social rights (ESRs), including rights to housing, health care, food, water, social security, and basic education. Yet over the past twelve years, problems related to separation of powers considerations, vagueness concerns, and enforcement costs have impeded the South African judiciary’s efforts to enforce these crucial rights meaningfully. After surveying these obstacles, this Note offers a two-step proposal for change: increased use of the structural interdict remedy and an enhanced, collaborative role for the South African Human Rights Commission. Used in tandem, these measures can improve judicial enforcement of ESRs in South Africa—and perhaps set a concrete example for the rest of the world.

One of the tools the Department of Justice has used in the War on Terror is 18 U.S.C. § 2339B, which makes it a crime to donate material support knowingly to Foreign Terrorist Organizations. The statute has raised several constitutional questions, including whether it violates the Due Process Clause’s principle of “personal guilt”—a principle the Supreme Court announced nearly fifty years ago in Scales v. United States—because it does not require the government to prove a defendant’s specific intent. Thus far, there has been little analysis of this due process question; this Note aims to help fill that gap. First, this Note argues that although issues of personal guilt are similar to those found in First Amendment expressive association cases, the due process test is an independent analysis. Yet, cleaving the due process and First Amendment questions leaves a problem: how to give content to the Scales principle of personal guilt. Second, this Note argues that courts should look to extant substantive criminal law—in particular, the doctrines of conspiracy and complicity—for analogies that shed light on just how Scales bears on § 2339B.

In deciding First Amendment cases, courts generally attempt to find distinctions between speech and nonspeech (or between speech and conduct) in order to determine whether government limitations on speech are appropriate. This analysis, however, is misguided, because whether such limitations are or are not upheld nearly always depends upon whether the conduct does or does not do harm. Recognizing this—and the inherent arbitrariness of speech-nonspeech line-drawing—this Note proposes that attempts at making such distinctions be abandoned. This Note addresses the impact of adopting the harm principle for the criminal law system, and further contends—given the principles underlying our system of civil law—that including so-called moral harms in the list of legitimate bases for state action is untenable.

Damages litigation against public officials implicates social costs that ordinary civil litigation between private parties does not. Litigation against public officials costs taxpayers money, may inhibit officials in the performance of their duties, and has the potential to reveal privileged information and decisionmaking processes. The doctrine of qualified immunity—that public officials are generally immune from civil liability for their official actions unless they have unreasonably violated a clearly established federal right—is designed to address these risks. The doctrine, however, demands an application of law to facts that, as a practical matter, requires substantial pretrial discovery. Federal courts have responded with a variety of novel procedural devices. This Note critiques those devices and suggests that courts confronted with a claim of qualified immunity should view their principal task as narrowing the universe of the plaintiff’s claims, thus facilitating a discovery process structured around dispositive legal issues.

In recent years, a number of states have passed comprehensive land use reform bills.1 Many of these statutes have appeared in response to the phenomenon of urban sprawl—a pattern of haphazard, automobile-dependent development on the fringes of existing cities. With rising personal incomes and persistent consumer demand for single-family homes on large lots in ethnically and physically homogeneous jurisdictions, urban sprawl has boomed. Fearful of the myriad costs of sprawl—which many commentators have chronicled—some states have acted to prevent it altogether. The most egregious costs of sprawl include the abandonment of urban centers, severe air and water pollution, and the loss of open green spaces. In economic terms, sprawl also vastly increases transportation costs for residents and workers who must travel greater distances to reach their homes, their jobs, and other destinations. Without statewide coordination, sprawl is difficult to prevent. For example, if one county prohibits the subdivision of its farmland into low-density residential lots, a neighboring county will not necessarily do the same. In fact, precisely because the restrictive county has stifled consumer demand, its neighbor may have greater incentives (in the form of spillover demand) to permit sprawling development. In addition, neither county is likely to be particularly well attuned to the negative effects of sprawl, which are often geographically and temporally dispersed and thus less salient for many local politicians. To combat these structural and political problems, some states have addressed sprawl as a matter of statewide, rather than local, concern.

This Note seeks to show that the state has an interest not only in preventing voting fraud, but also in preventing the appearance of voting fraud. Drawing an analogy to campaign finance law, this Note argues that if the state has an interest in preventing the appearance of corruption in election financing, then courts should also recognize such an interest in preventing the appearance of voting fraud in elections. The state has this interest in elections for the same reason it does in campaign finance law: Voters who perceive fraud may lose faith in the democratic process and consequently drop out of that process. Borrowing from the standard of proof courts have used in the campaign finance context, this Note analyzes popular opinion, media reports, and legislators’ statements to determine that the appearance of voting fraud exists—and thus concludes that the state should be permitted to act on its interest in combating that appearance. Photo identification requirements have attracted particular controversy as a method of combating voting fraud. This Note analyzes photo identification requirements as an example of antifraud laws which might not be constitutional if the state’s only interest were in preventing the actual fraud, but might be constitutionally permissible if the appearance-of-corruption interest is considered.