Notes

In 2006, the Department of Homeland Security (DHS) asserted federal preemption of state law governing the security of chemical facilities. The continuing controversy over chemical security preemption reveals one way in which executive power asserts itself in the national security context: the reclassification of seemingly domestic regulatory concerns as matters of national security and the consequent constriction of state regulatory authority. This Note analyzes the DHS’s chemical security regulations as a case study for the problem of national security preemption. It argues that the presumption of federal supremacy in foreign affairs can ratify conclusory and unsupported preemption claims because the national security interest mixes both foreign and domestic affairs, while the only doctrinal guidance for defining that interest comes from contested foreign affairs preemption doctrines. The Note proposes that, if strengthened, deference doctrines drawn from administrative law provide the best means of scrutinizing and limiting such claims of executive authority. Agency claims of preemption on the basis of national security should be subject to heightened scrutiny. Such scrutiny is more useful than the stalemated positions of the law and security debate for policing the state-federal divide in national security.

Daubert v. Merrell Dow Pharmaceuticals, Inc. and its progeny provide the federal standard for the admissibility of all expert evidence, including forensic evidence, that is proffered in criminal trials. The standard measures the validity of expert evidence through a flexible four-factor inquiry. Unfortunately, in the criminal context, Daubert fails to promote the goals of trial outcome accuracy and consistency, resulting in tragically unfair outcomes for criminal defendants. This Note proposes a doctrinal tweak that shifts the costs of admitting forensic evidence to the prosecution and promotes criminal justice goals. First, there should be a high presumption against the admission of forensic evidence that must be rebutted with a clear and convincing showing of its validity. Second, the Daubert validity inquiry needs to be reformulated so that the forensic methodology’s “error rate” factor is the primary (and if possible, only) factor the court considers. Third, the error rate should be defined as the lab-specific error rate. The Note ends by considering further possible ways to specify the definition of “error rate” to better promote criminal justice goals.

The Attorney General enjoys broad authority to certify to himself and review de novo decisions of the Board of Immigration Appeals (BIA). Though sparingly used, the certification power is controversial, in part because it permits the Attorney General to announce new rules and overturn longstanding precedent without meaningful process. Under current regulations, the Attorney General is not required to provide even basic procedural protections in certified cases, and he has issued decisions without giving the parties notice of the issues under review or an opportunity for briefing. This Note argues that review of BIA decisions without meaningful procedural safeguards implicates serious due process concerns, raises questions about the quality and accuracy of Attorney General decisions, and undermines the legitimacy and acceptability of immigration adjudication. To address these concerns, this Note proposes that the Attorney General promulgate regulations that require meaningful, adversarial participation by the parties and provide a transparent means of soliciting input from interested amici on issues of broad significance.

In the federal government, over one thousand positions exist that require nomination by the President and confirmation by the Senate. For many of these positions, the statute creating the office contains limitations on whom the President may appoint to the office. These limitations can include simple professional qualifications, policy-based restrictions, and political party balance requirements. Although such restrictions on the pool of individuals eligible for any given office have been used since the first Congress, are ubiquitous throughout the U.S. Code, and have never been successfully challenged in court, several authors, litigants, and executive officials have identified potential constitutional concerns regarding their validity. Limitations on the President’s nomination power, it is argued, should be suspect under the separation of powers set up by the U.S. Constitution as a congressional encroachment on an executive prerogative. In this Note, I examine the constitutional issues surrounding statutory limitations on appointments, present the traditional arguments for and against them, and suggest a paradigm shift for how we think about such limitations that may allay the constitutional concerns of their critics.

In recent years, the U.S. military’s use of private contractors in waging its wars has drawn increased attention from the academic literature, largely related to the growing number of cases filed by U.S. servicemen and contractor personnel against companies like Halliburton and Kellogg, Brown & Root. These suits have garnered the attention of the legal academy, particularly as federal courts dismiss such suits as nonjusticiable under the political question doctrine—a doctrine of judicial restraint long associated with voting rights and gerrymandering caselaw. The recent application of the political question doctrine to cases involving military contractors raises familiar questions regarding the scope of the judiciary’s role in monitoring the actions of coordinate branches and the pragmatism of the judiciary playing such a role at all. This Note considers these matters through the lens of the functional political question doctrine. It concludes that while federal courts may have the institutional capacity to play some role in administering tort suits against private contractor firms, that participation should be carefully cabined to avoid any judicial interference with the military’s authority to set standards for combat. Thus, while in-field negligence claims will usually present nonjusticiable political questions, fraudulent recruitment claims will not.

Prohibition of alcohol from 1919 to 1933 is a paradigmatic case of sumptuary legislation gone awry. Instead of removing alcohol from the market, Prohibition increased alcohol’s potency and decreased its quality, resulting in a spike in drunkenness and accidental deaths while black market corruption and violence abounded. The same criticisms are often leveled at the War on Drugs. However, this Note explores the most important difference between the two, namely, that in spite of their symmetrical failures, Prohibition was met with a decisive backlash and repeal while the War on Drugs retains popular support despite having created incomparably greater violence. This is dramatically illustrated by the war in Mexico, which is currently the most violent conflict in the world. The causes and implications of this divergence in public choice are explored below.

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.