Notes

This Note joins two previously parallel tracks of scholarship regarding the International Criminal Court (ICC). The first track studies the ICC’s authority to prosecute certain crimes that do not have links to armed conflict. This power means that the ICC could have jurisdiction over repression of mass civil uprisings of the type occurring in the Arab Spring. The second branch of scholarship concerns “complementarity,” or the principle of ICC deference to national prosecutions, and how that practice pressures reform in national judiciaries. This Note argues, at their intersection, that the prosecution of cases outside armed conflict by the ICC further encourages national judicial reform by mobilizing civil society groups. I call this “capacity catalyzing.” Because states wish to retain control over national prosecutions that may infringe upon their sovereignty, especially in the prosecution of cases outside armed conflict, these cases create an incentive for states to avert ICC prosecution by trying the cases themselves. I demonstrate this through two recent ICC cases that occurred outside armed conflict. In Kenya in 2007, pro-government forces and criminal organizations perpetrated killings against civilians during post-election violence. In Libya in 2011, anti-government protests snowballed over two weeks before civil war began. The ICC only focused on these crimes in its initial warrant. When crimes against humanity were allegedly committed, armed conflict did not exist in either country. The ICC’s involvement in these cases has encouraged national judicial reform.

Forced migration from climate change has been a hot topic in academia and the media for almost two decades, partly because it puts a human face on the otherwise science heavy issue of climate change. Academics have put forward a number of international solutions for resettling displaced persons and financially supporting them and their host countries. However, these proposals often fail to account for the nature and scope of likely migration and the political realities of the international community. This Note adds to the literature by developing a framework for assessing the responsiveness and viability of any proposed solution to gaps in protection for climate displaced persons. It develops five principles based on a realistic examination of the nature and scope of climate displacement and the political realities of the climate regime, and it then evaluates leading academic proposals against those principles to discover which elements are the most efficient and realistic. Finally, this Note concludes by suggesting one possible nontreaty proposal that meets all five principles and fills existing gaps in protection.

This Note presents two arguments. First, the Digital Millennium Copyright Act’s (DMCA) liability safe harbors are inapposite for private cloud services. Private cloud services are increasingly common offerings where consumers upload content, such as music, movies, or books, to personal cloud storage space, then download or stream that content to a multitude of devices. Although granting safe harbor immunity from secondary liability for user infringement would further the DMCA’s policy to promote technological innovation, doing so would completely ignore the DMCA’s other policy—to protect copyright. Currently, the DMCA protects copyright through its notice-and-takedown procedures, but these provisions depend on the ability of copyright holders to monitor users’ public actions—an impossibility on private cloud services. Second, the private cloud services problem is symptomatic of a larger problem in the DMCA: Its regulatory-like detail and specificity undermine its application to new technologies. The solution to both problems is an administrative one: Delegate rulemaking power to narrowly define safe harbor qualification when new technologies, like private cloud services, are valuable but also both ripe for infringement and unaddressed by the DMCA.

The Metropolitan Transit Authority regulates busking—playing music or performing for tips in a public place—differently depending on the subway station. Some stations are reserved for members of a program called Music Under New York (MUNY), while at the others, anyone willing to pay the standard fare to enter the station is allowed to busk. As it happens, the distribution of MUNY and non- MUNY stations within the subway system follows an economic pattern. MUNY covers the stations where we should expect busking to impose the highest externality costs. This economic pattern of coverage provides the substantive basis for this Note: Because MUNY’s distribution is consistent with Harold Demsetz’s foundational theory about the economic development of private property rights, MUNY provides a window into a question left open by Demsetz and contested in subsequent literature—the question of how private property develops. This Note analyzes MUNY to make two contributions to the growing body of literature describing how property rights develop. First, observing the role that changing First Amendment doctrine played in MUNY’s formation, this Note argues that exogenous legal norms act as constraints on the mechanisms through which new property rights develop. Second, it argues that Demsetz’s theory should take account of the inertia built into property systems and the external shocks that help overcome this stasis.

There is significant uncertainty as to what types of remedial affirmative action programs in government contracting are constitutional. This uncertainty adversely affects policymakers, courts, government agencies, and businesses. This Note discusses how one remedial contracting affirmative action effort, the Department of Transportation (DOT) Disadvantaged Business Enterprise (DBE) Program, has a unique cooperative federalist structure that can help policymakers address this constitutional uncertainty. This structure, constrained constitutional experimentation, has three aspects: (1) an underlying context of constitutional uncertainty, (2) the use of the federal government’s Spending Power to create incentives for and constrain state action, and (3) the preservation of state governments’ flexibility to experiment. Because of this structure’s ability to transfer the results of experimentation from one state to others, the DBE program helps policymakers resolve the constitutional uncertainty surrounding remedial contracting affirmative action programs.

The last decade has seen a noted increase in the amount of traffic-stop data available for researchers hoping to analyze racial profiling on America’s highways. A group of economic scholars—Knowles, Todd, and Persico—proposed a bright-line statistical test that asks whether different racial groups have the same hit rate, or to put it differently, are searches of individuals equally efficacious, regardless of their race? Accepting this conception of racial profiling as a minimum floor, I apply the test to a superior and newly-compiled data set of nine million Illinois traffic stops. The Illinois police fail the bright-line test and show signs of discrimination against Hispanic, Asian, and Black motorists. I then examine whether Seventh Circuit equal protection precedent would permit an Equal Protection claim based on that statistical disparity alone, concluding that additional evidence is needed to satisfy the discriminatory intent prong.

The Emergency Medical Treatment and Active Labor Act (EMTALA) is a federal statute that requires hospitals to screen and, if necessary, treat and stabilize every individual who comes to the emergency department. To comply with EMTALA, a hospital’s screening must be performed uniformly for patients with similar symptoms. Courts have undermined the statute’s effectiveness, however, by routinely granting summary judgment to defendant hospitals charged with EMTALA screening violations. The ease with which hospitals prevail at the summary judgment stage fails to remedy and deter disparities in care. Moreover, it discourages emergency departments from using written protocols. The implementation of written guidelines for emergency-department care can significantly improve EMTALA’s effectiveness by making violations more easily ascertainable, encouraging hospitals to self-regulate, and substantially improving hospital care. This Note argues for a greater evidentiary burden on hospitals that would require a hospital, before it can be granted summary judgment, to elucidate explicitly the elements of its uniform screening procedure and demonstrate affirmatively that this procedure was employed during the plaintiff’s emergency room examination.

Embryonic stem cells present novel questions of patentable subject matter eligibility. This Note examines the patentability of two types of patents: embryonic stem cells and methods of differentiating embryonic stem cells. After explaining patentable subject matter doctrine and ways of testing whether an invention is patentable, the Note posits that neither type of invention is patentable because the biological principles involved in both types of inventions are almost identical to the biological phenomena that occur naturally in the developing embryo. Additionally, the Note explains that, from a normative standpoint, patents should not be granted over these inventions.

What normative principles animate our laws on the conferral of citizenship? The present literature is divided between two competing ideas: the Consent Principle, which holds that citizenship stems from the mutual consent of the prospective citizen and the existing polity; and the Responsiveness Principle, which holds that citizenship is extended by the government in fulfillment of its duty to be responsive to the governed. In this Note, I argue that the Consent Principle is best understood as a background political theory and the Responsiveness Principle as an interpretive theory of law, and that thus understood, these principles are functionally complimentary rather than competitive. I then contribute a third idea called the Allegiance Proviso. The Allegiance Proviso says that, notwithstanding any affirmative obligations to the contrary, a government may withhold citizenship if it reasonably believes that a prospective citizen will not undertake the duties of citizenship— obedience to the laws and assistance in the common defense—in good faith. Taken together, the Consent Principle, Responsiveness Principle, and Allegiance Proviso form a coherent theory that fits our intuitions and illuminates the hard issues of citizenship today.

In the recent case Doe v. Reed, the Supreme Court announced the test for associations to get exemptions for their members from membership disclosure laws under the First Amendment. The Doe test requires an organization to “show ‘a reasonable probability that the compelled disclosure of personal information will subject [its members] to threats, harassment, or reprisals from either Government officials or private parties.’” However, the Court’s stated test is inconsistent with its membership disclosure cases, including Doe’s own dicta. In response to this inconsistency, this Note identifies the secret two-part purposivist test the Court has actually applied in its eighty years of membership disclosure case law—one that focuses only on “Government officials.” Under its actual test, the Supreme Court asks (1) whether the association deserves judicial protection from the disclosure law at issue because the government has targeted it, and (2) whether the association’s activities are economic or criminal such that disclosure is outside the realm of paradigmatic—and therefore deeply felt—First Amendment harm. This Note then argues that the Supreme Court’s secret test is more consistent with existing doctrine than its announced Doe test, once the private parties that target associations are understood to be like a hostile audience.