Notes

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.

The Supreme Court has recognized a proportionality principle under the Eighth Amendment’s prohibition against “cruel and unusual punishments.” The proportionality principle governs both capital and noncapital sentences, yet the Court does not apply the principle equally. In the capital context, the Court has created a robust methodology for determining when the death penalty is disproportionate and has forbidden its use in a number of contexts. In contrast, the Court has virtually renounced proportionality review in the noncapital context. This Note focuses on three points of difference between the capital and noncapital contexts that the Court has identified as justifying its fractured proportionality doctrines: the inherent subjectivity in distinguishing among noncapital sentences; the resultant inadministrability of engaging in robust noncapital proportionality review; and the infringement upon penological decisions made by state legislatures that searching noncapital review would require. It then responds to the Court’s articulated concerns by surveying the noncapital proportionality jurisprudence of the fifty states, which illustrates that there are principled, administrable, and legislatively deferential ways to police noncapital sentences. This Note suggests that the Court adopt a modified strand of states’ jurisprudence in order to craft a more rigorous noncapital proportionality doctrine at the federal level.

The Supreme Court’s recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have rejected notice pleading and have embraced instead a “plausibility” standard for pleading, which requires a plaintiff’s complaint to present facts suggestive of liability. A recurring criticism of the plausibility standard is that it will weed out many meritorious cases in which the plaintiff was unable to gain access to information relevant to liability prior to the commencement of the lawsuit. This Note argues that these criticisms have largely ignored historical and technological changes in how information is regulated and accessed—changes that mitigate the impact of the plausibility standard. Information asymmetries between plaintiffs and defendants are, for the broad run of cases, less severe today than they were seventy years ago when notice pleading was created. Search costs for information are now lower because of new technologies like the Internet. Laws forcing or facilitating the disclosure of information to the public have also proliferated in recent decades, making building a case easier for plaintiffs. While serious information asymmetries remain in certain types of cases, this Note argues that the best strategy for dealing with such cases is not to return wholesale to notice pleading but to create a “safety valve” mechanism modeled on Rule 56(f) to test whether plaintiffs had access to significant amounts of information concerning the defendant’s conduct.

Geographical Indications (GIs)—product labels indicating places of origin when the quality of products are linked to their geographic origin—have long been a hotly-contested domain of international trade among nations in the developed West. Recently, a literature has emerged evaluating the prospects for developing countries’ use of GIs to bolster their agricultural sectors, but the empirical economics of GIs remain poorly understood. This Note approaches the issue from a different angle. The rhetoric that attends discussion of the economics of developing-nation GI implementations often makes reference to nonpecuniary, “softer” benefits of the GI phenomenon—in particular, its pro-local counterbalance to the multinational forces commonly perceived to dominate the global marketplace. This Note seeks to scrutinize this aspect of GIs’ impact on developing-world producers by assessing the political, institutional, and cultural dynamics that the international GI regime fosters. To ground my inquiry in an analytic framework, this Note employs metrics derived from the Global Administrative Law (GAL) project spearheaded by Benedict Kingsbury and Richard Stewart. Specifically, this Note asks whether the institutional dynamics that GI protection fosters among developing-world coffee farmers have the effect of promoting or obstructing regulatory accountability as measured by GAL’s three main principles: participation, transparency, and review. In theory, the implementation of a GI product specification should empower developing-world coffee producers by fostering their regulatory involvement and civic organization, facilitating collective management of their joint reputation, and offering access to mechanisms by which they might hold opportunistic actors accountable. This Note concludes, however, that the practical realities are unencouraging because states without preexisting and well-developed institutional infrastructures have difficulty corralling powerful actors seeking to exploit GIs for private benefit.