Notes

In 2007, the International Court of Justice defined the scope of state responsibility under the Genocide Convention for the very first time when it reached the merits in the Genocide Case, a case arising from the violent breakup of the former Yugoslavia. The opinion immediately spurred extensive academic commentary, much of which was critical of the Court’s ultimate holding that Serbia had not committed genocide despite its well-documented role in the Srebrenica massacre. While the Genocide Case can be read as a disappointment, and the Court’s analysis is vulnerable to normative critique, this Note argues that it was nonetheless an important victory in the movement toward greater state accountability for genocide, especially considering the context in which the Court acts and the limitations imposed on its independence by the practical need for legitimacy. Although the Court raised onerous evidentiary hurdles for establishing state responsibility for the direct commission of genocide, it managed simultaneously to impose upon states a clear duty to rein in non-state actors over whom they exercise influence by interpreting the state obligation to prevent genocide broadly. This broad duty to rein in non-state actors has important implications not only for the Court’s own jurisprudence but also extrajudiciously within the customary framework of state responsibility, by empowering the general international community to enforce states’ obligations to curb genocidal actors within their reach.

In the United States’ early history, state legislatures often formally instructed their federal representatives on particular votes. This practice flourished for a century but then died out—a change that many scholars attribute to the Seventeenth Amendment. This Note argues that previous scholars have ignored other, more important, reasons for the demise of instructions.

The six-year term length for U.S. senators, combined with the increasingly rapid turnover in state legislatures, prevented binding instructions from becoming permanently entrenched. Instructions were held in place after the Founding only by constitutional culture, but even this did not last. After Southern Democrats vigorously used instructions to purge Whigs from the Senate in the 1840s and 1850s, the use of instructions was indelibly linked to the South. Not surprisingly, the doctrine of instructions was one of the casualties of the Civil War. Following the War, the roles were reversed: The states—especially the Southern states—were taking instructions from the federal government. Today, instructions still exist but as nonbinding “requests” for action. This new conception of instructions returns us full circle to James Madison’s conception of the proper role of instructions: a right of “the people . . . to express and communicate their wishes” to their representatives.

This Note argues against the use of the prudential political question doctrine (PPQD), as exemplified by the Vieth v. Jubelirer plurality opinion. In Vieth, the Supreme Court avoided formulating a standard for adjudicating the constitutionality of partisan gerrymandering due to a claimed lack of a “discernible and manageable standard.” This meant, according to the plurality, that no proposed doctrinal test was both concrete enough to be workably deployed by lower courts and discernible enough in the constitutional text, history, and structure, inter alia. Although the Vieth plurality opinion presents itself as based on universally applicable metadoctrine determining what is and is not a discernible and manageable doctrinal test, this Note argues the Court’s use of the PPQD is ultimately based on a gestalt prudential judgment about the wisdom of intervention in the particular area of partisan gerrymandering.

This Note then argues that the PPQD leads to negative consequences for future litigants and judicial legitimacy. The PPQD sends litigants on a wild goose chase for a perfect doctrinal standard, when it seems clear that no standard will satisfy the Vieth plurality. It also invites litigants to argue about what a discernible and manageable doctrinal test is in the abstract, rather than to address the particular legal issue at hand. These diversions insulate the judiciary from legitimate criticism of the grounds of its decisions. This Note then compares the PPQD to another option for judicial avoidance: a merits standard that is almost impossible for plaintiffs to meet in practice, such as rational basis review. This Note concludes that a stringent merits standard is a superior mechanism for judicial avoidance because it does not carry the same high costs for litigants and judicial legitimacy as the PPQD. Additionally, it allows the Court to exit from active adjudication of an issue while still preserving its ability to intervene in egregious cases.

First and Fourth Amendment Limits on National Security Letters

Congress’s passage of the Patriot Act after 9/11 expanded the Federal Bureau of Investigation’s (FBI) information-gathering authority to issue national security letters (NSL). Without any judicial review, the FBI issues NSLs to telecommunications providers to obtain customer subscriber information, including sources of payment, records of Internet activity, addressees and subject lines of emails, websites visited, and search queries. Because a subscriber has voluntarily given the data to a third party, the NSL is not considered a “search” for Fourth Amendment purposes, under the so-called “third-party doctrine.” To overcome this constitutional shortcoming, commentators have argued that the chilling effect NSLs have on the exercise of free speech makes such investigations suspect under the First Amendment.

Despite the appeal of the First Amendment argument, this Note argues that a subscriber’s free speech claim against an NSL faces more significant doctrinal hurdles than scholars have recognized: The First Amendment does not directly protect privacy, making a chilling effect claim hard to sustain. Furthermore, the standard of review in First Amendment cases may be too deferential to the government because the Patriot Act does not directly target speech, only data related to communicative activity. Instead, this Note proposes statutory reform for more enhanced judicial review and considers how the First Amendment could be used, not as an independent challenge, but rather as a basis for modifying the third-party doctrine. The Note concludes that the concern for chilling free speech is valid, and although First Amendment doctrine may not provide the means to defeat an NSL, concern for free speech interests could provide courts with a rationale for finding a reasonable expectation of privacy in Internet data, thus strengthening our currently impoverished Fourth Amendment safeguards.

Scholars have argued that the malpractice system would be better off if patients had the option of waiving the right to sue for malpractice in exchange for a lower fee. Some doctors have tried to follow this advice by having their patients sign medical malpractice exculpatory agreements, but courts usually have refused to enforce these agreements, invoking a void-for-public-policy rationale. This Note argues that a doctor could maximize the odds that a court would enforce her medical malpractice exculpatory agreement by somehow ensuring that she will never find out whether her patient decided to sign. A case study of the law in New York highlights the ambiguity in the void-for-public-policy rationale as to whether the simple fact that the doctor-patient relationship is implicated in a medical malpractice contract is fatal to enforcement, or whether such a contract could be enforced if it were nonadhesive and clearly worded. A behavioral-economic analysis of the patient’s decision to sign a medical malpractice exculpatory agreement reveals a reason why the agreements may be categorically barred: Some patients might unwillingly agree to sign for fear of signaling distrust or litigiousness to their doctors. A confidential contract—in which the offeror never knew whether the offeree had accepted or not—would avoid this signaling effect. A provider using such a contract could distinguish those cases in which the doctor-patient relationship alone seemed to justify nonenforcement as not involving this prophylactic measure.

In the renowned pair of higher education cases decided in 2003, Gratz v. Bollinger and Grutter v. Bollinger, the Supreme Court affirmed the value of diversity as a compelling state interest in the higher education context, while placing careful limits on the means through which a university may utilize admissions to achieve diversity within its student body. As the challenge of creating a narrowly tailored diversity plan has grown, universities have devised a variety of ways to attract, admit, and retain a racially diverse student body, recognizing the unique challenges and frustrations that minority students may face in higher education. Schools such as the City University of New York, the University of Maryland, and the Massachusetts Institute of Technology have utilized scholarships, targeted classes and academic programs during the summer and school year, mentoring, and other student support programs in an effort to raise the low numbers of minority students enrolling in, and graduating from, their institutions. This Note applies the Supreme Court’s affirmative action jurisprudence to such programs, and proposes a framework for analyzing the programs that will allow them to meet the high standards of equal protection analysis. The Note concludes that, though many colleges have ended their programs or opened them to students of all races, such drastic measures are unwarranted.

This Note examines the current doctrinal difficulties with student Internet speech. Student speech was traditionally protected from school authority when it was performed off campus—it received full First Amendment protection as opposed to the lower level of protection that on-campus speech received. However, the emergence of the Internet as a dominant form of communication has complicated this framework by blurring the line between off-campus and on-campus. As reflected in the Supreme Court jurisprudence, the question of the standard of protection to apply highlights the educational and constitutional issues at stake in student speech. While some courts seem willing to subject all youth speech to the lower constitutional standard, I propose a more nuanced approach. My approach, which I dub the “relational approach,” reframes the debate by reference to the role schools play in our society. The relational approach forces judges to examine the context in which the speech takes place and determine whether society expects such context to be governed by institutional educational authority. By adopting my approach, a more honest and reasonable jurisprudence can emerge.

A new approach to national interpretations of international law suggests that, to be successful, national courts must engage in flexible, culturally conscious translations of international norms. Transitional justice projects, however, pose a challenge to this approach. This Note proposes that when criminal prosecutions function as truth-seeking processes, the ability of domestic groups to influence how national courts interpret international law is heightened. In these instances, nonstate actors understandably attempt to capitalize on courts’ awareness of the critical role legal judgments play in engendering national reconciliation in order to secure favorable legal outcomes. Accordingly, courts have the challenge of adjudicating egregious human rights violations while also complying with the strict limitations of international criminal law. This Note suggests that the exigencies of transitional justice may lead national courts to issue interpretations that deviate from the existing body of international law. It examines this thesis through the lens of recent criminal prosecutions in Argentina for massive human rights violations during the Dirty War, in which a federal court greatly expanded the legal definition of genocide, contradicting long-standing international jurisprudence.

In 2005, Congress passed the Class Action Fairness Act (CAFA), which gave federal courts jurisdiction over class actions with both minimal diversity and an amount in controversy exceeding $5 million. In the wake of CAFA, federal courts have struggled to formulate appropriate standards of proof when the defendant removes a class action to federal court and the plaintiff seeks to remand the case to state court. This Note argues that if a defendant looks to remove such a class action, it should have to demonstrate that the amount in controversy is met by a preponderance of the evidence—regardless of whether the plaintiff’s complaint requests a specific amount of damages. In addition, if a plaintiff wants to utilize either of CAFA’s “federalism exceptions” to federal jurisdiction, it should have the benefit of a rebuttable presumption that a class member’s state of residence is her state of citizenship. This two-part approach comes closest to effectuating the “balanced diversity” that Congress intended in CAFA.

In recent decades, states have exhibited remarkable leadership in environmental policy. This leadership is threatened by federal ceiling preemption, which prevents states from adopting regulations that exceed federal standards. While environmental law scholars have argued that the rise in federal ceiling preemption will undermine environmental policy, these critics have failed to take the arguments in favor of preemption seriously. Specifically, they have not addressed the risk that states may adopt tough environmental regulations because they can externalize costs to other states, or that a single, large, pro-regulatory state like California could effectively dictate excessively stringent national standards. This Note presents a more principled case against federal ceiling preemption in environmental law and contends that the cost-externalization argument’s practical application is limited. It illustrates this primarily through an extended case study of California’s regulation of greenhouse gas emissions from motor vehicles. The Note argues that state regulations that provide manufacturers with sufficient flexibility to meet standards without disrupting economies of scale can largely avoid externalizing costs to out- of-state consumers. It further contends that states may have to consider the interests of out-of-state producers when issuing regulations because, among other reasons, compliance costs will be partly internalized by in-state consumers and shareholders. The Note concludes that the merits of the cost-externalization argument must be carefully weighed against the benefits of decentralized policymaking in order to yield optimal environmental policy.