Notes

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.

This Note examines the phenomenon of deregulation through nonenforcement, drawing on examples from the George W. Bush Administration. It argues that the presumption of nonreviewability afforded to agency refusals to prosecute creates incentives for presidential administrations pursuing deregulatory agendas to manipulate agency enforcement practices. Furthermore, it contends that deregulation through nonenforcement is undesirable because it shields executive branch policy decisions from public view, thereby reducing accountability. Perhaps counterintuitively, the Note suggests that one way to counteract the negative effects of the presumption of nonreviewability is to reduce the level of review applied to other categories of agency action, such as notice-and-comment rulemaking, thus increasing the executive’s ability to act through more accountable means.

Modern agriculture has vast environmental externalities. The pesticides, fertilizers, and sediments in irrigation runoff pollute surface and groundwater; single-crop farms destroy biodiversity; and massive amounts of fossil fuels are burned in agricultural production, post-harvest processing, and shipping. Nevertheless, farming operations have largely escaped the post-1970 expansion of federal environmental regulation. Compounding the problem, federal farm policy has encouraged the very farming practices that most cause this degradation.

In 1990, Congress passed the Organic Foods Production Act (OFPA), which created an organic food certification and labeling system. While OFPA’s primary purposes are to facilitate the growth of the organic sector and to protect consumers, this Note suggests that the Act’s secondary purpose, underimplemented by the United States Department of Agriculture (USDA), is to foster sustainable farming practices. This Note explores whether the OFPA’s organic labeling system does or could fill the regulatory gap described above.

This Note finds that under current standards the labeling program does not foster sustainable farming, not only because of shortfalls with the standards themselves but also because the market suffers from a freerider problem: Organic foods cost more, but consumers do not want to pay more for dispersed public benefits. Strengthening the standards would drive up production costs and exacerbate the freerider problem, but this Note argues that the USDA could mitigate the resulting decline in demand by taking advantage of the fact that organic products bundle sustainability, a public good for which people are not willing to pay much, with health, a private good for which many people are willing to pay more.

Many policies in foreign affairs law increase national security at the expense of national wealth and vice versa. Courts have struggled to find a suitable framework for adjudicating cases arising out of these policy decisions. In the recent case United States v. Eurodif S.A., the Supreme Court seemingly abandoned previous assumptions about security-wealth cases, relying instead on the Chevron framework commonly used in administrative law. This Note outlines the potential shift to Chevron and its merits vis-à-vis older frameworks for security-wealth cases. It concludes that Eurodif may well represent a profound change in the Court’s treatment of international relations and predicts that continued application of the Chevron framework will improve foreign policymaking.

While one primary goal of the Endangered Species Act is to prevent the global extinction of species, it is less clear whether the Act is intended, and can be used, to protect species that are endangered solely within the United States. Although the global preservation of species may be sufficient to achieve many of the goals of the Endangered Species Act, some goals may only be completely served by ensuring that certain populations of species occur within the United States, even if the animals are abundant elsewhere. The current Distinct Population Segment Policy being used by the Fish and Wildlife Service and the National Marine Fisheries Service to determine whether to list domestic populations of species as threatened or endangered only allows the agencies to protect these population segments if they are significant to the species’ taxon as a whole. This Note argues that this policy should be changed because there are many compelling reasons to protect domestic populations of particular species, even if these species are abundant elsewhere, and suggests criteria that should be used to determine whether a particular population segment should be protected, including the species’ conservation status and importance to the American people. It also demonstrates that this proposal would be consistent with the goals of the Endangered Species Act.

The world faces collective action problems that are global in nature and scope, rendering nation-states unable to achieve desired goods individually. Issues such as global climate change and systemic financial risk create externalities that impel the existence and intervention of a world government to avoid suboptimal market equilibria, free-riding, and moral hazards. I submit the European Union’s principle of subsidiarity as an organic, legitimizing framework for global governance that both compels and cabins a world government. Subsidiarity optimizes social welfare by enabling a world government to achieve desired goods that nation-states would be otherwise unable to obtain individually because of collective action problems. But subsidiarity also limits a world government through a presumption in favor of local regulation as a matter of national autonomy and efficiency. The efficiency concern also enables subsidiarity to be an expansive principle for global governance because it accommodates both public and private forms of collective action. Public forms of collective action include public regulations, treaties between nations, and public institutions like the World Trade Organization. Private forms of collective action include free-market Coasian bargaining between private parties and the efforts of private international institutions like Greenpeace. Because subsidiarity accounts for these diverse institutions in a large and complex world, it is an ideal balancing principle for global institutional choice.

Victims of consumer fraud often struggle to bring their claims as nationwide class actions under traditional state fraud laws due to (1) the application of many states’ laws to potential class members’ claims and (2) the fact that fraud claims generally raise a significant individual factual issue—whether the claimant personally relied on the defendant’s misrepresentation. The civil remedy provisions in RICO offer an attractive alternative. RICO overcomes the first hurdle by providing plaintiffs with a single federal law under which to file suit. This Note demonstrates that RICO allows plaintiffs to overcome the second hurdle as well. Rather than showing that they incurred harm when they purchased products in reliance on a misrepresentation, plaintiffs can achieve class certification by framing their injury as a harm common to all purchasers of a product: specifically, an increase in the price of the product due to artificially increased demand. Recently, several classes have moved successfully for certification using this approach. This Note provides a theoretical framework to justify this method. Rather than committing the same error as most courts and commentators by viewing this approach as an extension of the fraud-on-the-market presumption of reliance from securities fraud cases, I argue that there is no need to presume reliance because the Supreme Court’s holding in Bridge v. Phoenix Bond & Indemnity Co. makes clear that individual, personal reliance is not necessary to prove causation in RICO claims. Instead, plaintiffs can satisfy RICO’s causation element through statistical analyses that prove aggregate reliance—reliance on the fraud by a large enough number of individuals to increase the price of the product above the price that it would have been absent the fraud. As all purchasers of the product experience the same price differential, the statistical analyses provide common proof of causation of identical harm, eliminating problematic individual inquiries and opening the door to certification of nationwide consumer fraud class actions.