Notes

Standard Form Contracts (SFCs) are at the heart of an ongoing debate among legal and empirical scholars about the extent to which market forces serve to discipline sellers into providing fair contract terms. Scholars have long assumed that consumers do not read SFCs ex ante (e.g., at the time of purchase or installation) but have generally left open the possibility that consumers might read SFCs ex post (e.g., if there is a breakdown in service or functionality). This Note examines empirically the extent to which online product ratings might serve as a conduit of information regarding contract terms from ex post to ex ante consumers. Comparing online product ratings from Epinions.com and Amazon.com with software license agreements graded according to a contract bias index, I find that product ratings on Amazon.com surprisingly bear a negative correlation with contract bias. That is, more highly rated products tend to come bundled with more pro-seller terms. My results suggest that while product ratings may contain information about contract terms, this information is not conveyed in a way that is useful to ex ante consumers and, accordingly, is unlikely to discipline sellers. This Note thus provides guidance for future research and policy initiatives seeking to explore ways to discipline sellers into providing fairer and more efficient contract terms.

Implementation of carbon emissions trading schemes such as the European Union’s Emissions Trading Scheme requires consideration of how to properly characterize the newly-created emissions credits under various domestic and international law frameworks. Notably absent from the literature on emissions trading is an analysis of whether emissions credits can be characterized as investments, thereby implicating international investment law protections against expropriation and discrimination and giving rise to guarantees of fair and equitable treatment. This Note analyzes the International Centre for Settlement of Investment Disputes’s objective definition of “investment” as well as treaty-specific definitions of “investment” and concludes that carbon credits are properly considered investments. Next, the Note considers the types of investor claims that could be brought against host states if carbon credits are treated as investments. Because of the potential costs to host states in defending against such claims, states’ willingness to adopt carbon trading schemes may be chilled. This risk of regulatory chill, coupled with the global importance of national measures to combat climate change, counsels in favor of limiting the scope of rights afforded to investors. This Note therefore concludes by setting out a range of proposals for enacting such limits.

Under normal Freedom of Information Act procedures, an individual submits a request for records to a government agency and receives one of three responses: The agency may identify responsive records and release them, determine that there are no responsive records and inform the requestor of this fact, or identify responsive records but determine that they are exempt from disclosure under one of FOIA’s nine statutory exemptions. Since the 1970s, however, a fourth type of response has arisen: Agencies sometimes refuse to confirm or deny whether responsive records do or do not exist on the grounds that acknowledging their very existence itself would reveal secret information. This withholding mechanism, known as the Glomar response, creates special problems for FOIA requestors and receives remarkable deference from federal courts. This Note assesses the justifications for such deference, which are often rooted in separation of powers concerns. Arguing that the level of deference afforded is excessive, this Note posits that both separation of powers and institutional conflict of interest considerations support greater judicial scrutiny of agency invocations of the Glomar response. This Note concludes by offering proposals for judicial, legislative, and administrative reform of the Glomar response.

In United States v. Balsys, the Supreme Court held definitively that the Fifth Amendment privilege against self-incrimination does not apply to fear of solely foreign prosecution. The Court also recognized in dicta that the privilege might apply under a narrow set of circumstances when a witness can prove “cooperative prosecution” between United States law enforcement officials and a foreign sovereign. Subsequent witnesses claiming this “exception” have, however, been unsuccessful. I argue, first, that the “cooperative prosecution exception” is constitutionally mandated by the traditional justifications for the Fifth Amendment privilege and should be elevated above the status of mere dicta. Second, I argue that the Supreme Court dicta as well as subsequent lower court interpretation of this language impose such a high burden on witnesses that the exception (to the extent it is recognized) is essentially nonexistent, even for meritorious claims. Borrowing from recent case law, I propose a prophylactic solution to vindicate the privilege in a manner consistent with Supreme Court precedent.

Under the forfeiture-by-wrongdoing rule, a criminal defendant loses his Sixth Amendment right to confront a government witness when he intentionally prevents that witness from testifying at trial. As the rule currently operates, any and all prior statements by the missing witness can be admitted as substantive evidence against the defendant, regardless of whether they have been subjected to any of the procedural elements of confrontation. In this Note, I argue against such a “complete forfeiture” rule and propose a more “limited” rule in its stead. I argue, contrary to most courts and scholars, that forfeiture-by-wrongdoing cannot be justified by its punitive rhetoric, rendering its sweeping “complete forfeiture” result vulnerable to criticisms based on the primary lessons of Crawford v. Washington.

In the United States, the tripartite system ensures the rule of law by dividing the power to make laws between Congress and the President. The system, however, makes virtually no provision for moments of grave emergency, in which the President is expected to act before authorization from Congress can be secured. As a result, presidential discretion—exercised first in emergency—creeps into nonemergency governance, corroding the rule of law.

This Note employs John Locke’s concept of the federative power to define the emergency moment as limited to that period of time during which it is logistically impossible for Congress to approve executive action. From there, it proposes an administrative agency, the Federal Emergency Board, with the power to declare an emergency during this interval, thereby authorizing and legalizing the exercise of executive power.

Without ignoring the somewhat fantastical nature of this proposal, this Note engages seriously in a discussion of its constitutionality. It explores the remedies that would remain available to individuals whose rights were violated during a declared emergency. Finally, it examines whether a sitting President would be likely to seek authorization for his emergency action. It concludes that, at the very least, the existence of the Federal Emergency Board would remind Americans that the system of checks and balances does not disappear during moments of emergency.

Although the government’s interest in preventing harm to children has played a central role in justifying regulation of broadcast indecency by the Federal Communications Commission (FCC), courts generally have failed to examine this asserted interest. In this Note, I argue that this failure has added great uncertainty to indecency regulation and that more thorough consideration of this interest may provide greater clarity on the boundaries of permissible speech. I first review the doctrinal history of the regulation of indecency, both within broadcasting and in other media, to demonstrate that the interest in preventing harm to children, though a central justification of the regulatory scheme, has been ill defined. I then examine the recent case of FCC v. Fox Television Stations, Inc. to illustrate that the vagueness of the current FCC indecency standard raises constitutional concerns. I contend that the vagueness may derive, at least in part, from courts’ failure to identify the type of harm to children that the government seeks to prevent through restrictions on indecent speech. Although the FCC’s structure may be inapt for identifying speech that is harmful to children, courts should undertake an investigation into the nature of the harm that indecency regulation seeks to prevent in order to provide limits on the scope of government authority. In the final Part, I therefore analyze five potential government interests, each stemming from a distinct potential harm that indecent broadcasting may create, and demonstrate how identifying the harm that indecency regulation is trying to address may restrict and define the scope of permissible government action.

Many aspects of the United States’s armed conflict with al Qaeda and associated forces have been intensely debated by legal scholars and policymakers, yet one important question has thus far been almost completely ignored: Where, if at all, does the law of neutrality fit into the legal framework governing the conduct of this armed conflict? I argue that neutrality is one of several principles that ensure the completeness of the modern law of armed conflict (LOAC) framework. Neutrality is particularly important in achieving geographic completeness of the legal regime. The 1949 Geneva Conventions (GCs) that form the bedrock of our LOAC framework were written against the background understanding that neutrality would operate wherever GC protections did not apply. In sharp contrast to most wars, the geographic distinction between belligerent and neutral territory is highly unstable in the conflict with al Qaeda. Ironically, at the point in modern warfare when the law of neutrality may be most important, it is being ignored.

The Obama administration has begun to apply analogous provisions of the LOAC rules developed in inter-state wars to its current conflicts—a recognition that this conflict, like all others, should be waged according to a complete legal regime. To date, however, the United States has not recognized the role of neutrality in its conflict
with al Qaeda. This Note begins to fill that gap. While arguing that the law of neutrality is more important in this conflict than many others due to the conflict’s global nature, this Note concludes that recognizing neutrality will only be a partial solution. Neutrality instructs, however, that the LOAC rules themselves may be applicable almost globally because of the asymmetrical nature of the conflict. I argue that the central purpose of recognizing neutrality in our current conflicts is to avoid selectively applying parts of a comprehensive legal system, thereby leaving legal black holes in which some individuals have no protection. What matters most is that the intended fundamental feature of the LOAC regime—its completeness—is not abandoned each time a new form of conflict is recognized.

Alberto Fujimori is the first democratically elected leader to be tried and convicted of human rights violations in the domestic courts of his own country. As satisfaction with foregoing prosecution and granting amnesty in exchange for more peaceful democratic transition has fallen increasingly out of favor, Fujimori’s trial comes at an opportune time to reevaluate the role of criminal trials in national reconciliation and transitional justice. In this Note, I argue that Fujimori’s human rights trial demonstrates that head-of-state trials, particularly domestic ones, can valuably contribute to larger transitional justice projects, despite their inherent limitations and challenges. Situating my analysis within the transitional justice and show trial literature, I analyze both procedurally and substantively how effectively Fujimori’s human rights trial has navigated its “constitutive paradox,” or tension between strict adherence to the rule of law and the extrajudicial objective of delivering a coherent moral message, inherent in transitional criminal proceedings. I conclude that the trial demonstrates that courts can effectively navigate these paradoxes, even in the midst of institutional weakness and societal cleavages. Moreover, I suggest that domestic tribunals may be particularly well suited to navigate the constitutive paradox of transitional trials.

The goal of any financial regulatory system should be to enable well-functioning markets. Meeting this goal requires reducing the impact and frequency of financial institution failures that cause systemic risk. Any regulatory structure, however, inevitably involves tradeoffs. A policy that effectively reduces systemic risk and its associated costs might also increase moral hazard. Similarly, a policy that seeks to reduce moral hazard and maintain market discipline—for example, by allowing a large interconnected institution such as Lehman Brothers to fail—might also create uncertainty, which can harm markets by creating panic. In this Note, I argue that our current regulatory structure is suboptimal in its regulation of systemic risk. A different regulatory structure could more effectively reduce the systemic risk caused by failing non-bank financial institutions, while minimizing the attendant problems caused by the regulations themselves—moral hazard and uncertainty. The federal government could strike a superior balance by establishing more stringent ex ante prudential regulations of systemically important non-bank financial institutions aimed at curbing excessive risk-taking and by implementing a regulatory process to resolve the failure of such institutions. The Obama Administration has proposed regulatory reform that endorses such beneficial changes, but certain details in the proposal fall short. I propose specific modifications to the Administration’s proposal to produce a more optimal regulatory framework. By pinpointing and examining the strengths and weaknesses of the Administration’s approach, I formulate a regulatory framework that more effectively contains systemic risk, avoids increasing moral hazard, and reduces excessive uncertainty caused by regulation.