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The Limits of Lex Americana: The Holocaust Restitution Litigation as a Cul-de-Sac of International Human-Rights LawThis article addresses the Holocaust-restitution litigation of the late 1990s, which resulted in spectacular settlements totaling over $9 billion and culminated with an Executive Agreement between Germany and the United States in 2000. Prominent law scholars such as NYU Professor Burt Neuborne and Michael Bazyler, author of Holocaust Justice: The Battle for Restitution in America's Courts (2003) and Holocaust Restitution: Perspectives on the Litigation and its Legacy (2006), have celebrated these lawsuits as a model for international human rights. Neuborne has extolled the litigation as the dawn of an era of “lex Americana,” in which multinational corporations (MNCs) have a “moral obligation … to live by American rules of fundamental fairness, both substantive and procedural, if they wish to participate in the remarkable success of this economic, social, and political culture." Bazyler is equally enthusiastic: “[T]he Holocaust restitution cases [are] beco! ming the principal model for victims and their representatives seeking to right past wrongs.” Legal scholarship has thus contributed to a heroic image of plaintiffs slaying the Goliath of global corporations in international human-rights litigation. This fits larger trends in foreign relations law that Anne-Marie Slaughter and David Bosco identify as “Plaintiff’s Diplomacy.” In Plaintiff’s Diplomacy, individuals directly shape foreign affairs by suing in the courts, thus bypassing the traditional diplomacy between states. According to this model, private parties can no longer be shut out. Bazyler’s summary of the Holocaust-era litigation provides an example: “The ‘one-two punch’ of American lawyers first filing the class action lawsuits against the European defendants [MNCs] and American officials at the state and local levels then threatening to exclude the defendants from profitable U.S. [business] deals … was the perfect strategy…" But Bazyler vastly exaggerates the importance of litigantion. The State Department had already been seeking to settle su! rvivors’ claims for several years in advance of any lawsuits. This article makes three original contributions. First, contrary to the heroic narrative of “plaintiffs’ diplomacy,” it argues that the United States’ political branches contributed more to the successful settlements than litigation. Instead of individuals mobilizing the courts to change the behavior of recalcitrant states, the process worked in reverse. States-parties led the way. Second, using historical evidence, this article examines the survivors’ legal claims, which sounded in restitution. Because the Holocaust survivors’ succeeded in large settlements and because their suffering was beyond question, scholars have simply taken it for granted that they advanced strong legal claims. Historical evidence shows that their claims were surprisingly weak. Third, this article tests Bazyler and Neuborne’s hypothesis that the Holocaust-era litigation provides a model for successful lawsuits against MNCs that perpetrate human-rights violations. By examining the legacy o! f the Holocaust-era lawsuits in other international human-rights litigation, this article shows that the plaintiffs’ restitutionary theories of recovery neither have nor can provide such a model.
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A NEW REMEDY FOR HIGH-STAKES EDUCATION LAWSUITS IN A POST-NCLB WORLDSheff v. O’Neill ushered in a new wave of education reform litigation that will challenge the constitutionality of de facto segregation under state education clauses, but its remedy has been inadequate. This Article proposes a new desegregation remedy—the sliding scale remedy—to address socioeconomic isolation in this unique constitutional context. The remedy employs varying degrees of equity power depending on students’ academic outcomes. It balances concerns over local control and separation of powers with the court’s need to effectuate rights, establishes a clear remedial principle, and ensures that states and school districts focus on students as they implement remedies.
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Patent and Contribution: Bringing the Quid Pro Quo into eBay v. MercExchangeIn eBay, Inc. v. MercExchange, L.L.C., the Supreme Court declared that an injunction granted to stop and prevent patent infringement is like any other injunction, and therefore should only issue after consideration of traditional equitable factors. It is not yet clear whether this decision has truly changed existing patent law, but one thing is certain—injunctions are no longer viewed as a guaranteed remedy for patent infringement. One potential effect of eBay on the world of technology is on the value of patents. Much of the discussion of eBay has focused on the decision’s effect on patent owners who do not practice their patent. Without the threat of a guaranteed permanent injunction, these patent owners will have less bargaining power in licensing negotiations and might get less favorable licensing arrangements. This note discusses this potential change in patent value and its relation to one primary justification for patent law, the quid pro quo, which views the patent as an exchange between the inventor and the public: invention and disclosure in exchange for the right to exclude. In the post-eBay world, the fact that an injunction is no longer a guarantee may reduce the value of the right to exclude. This may create a disparity in the exchange—the inventor may receive less value from the public in the form of a patent while the public receives more from the invention and disclosure through the denial of an injunction. This note argues that eBay need not conflict with the quid pro quo exchange, and that, although current decisions relying on the Supreme Court’s opinion do not do so, courts can and should use eBay to better tailor the patent right to the value of the actual contribution of invention and disclosure.
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Leveraging International Economic Tools to Confront Child SoldieringChild soldiers in theatres of armed conflict represent the worst and most abusive forms of child labour. States parties to the conflict, as well as third party States, bear differentiated and continuing international legal obligations in relation to child soldiering. Not only are States parties to the conflict barred under international humanitarian law from drafting this class of protected persons into child soldiering, but it may also be argued that other States in the multilateral economic system can independently take measures pursuant to the General Exceptions (Article XX) and Security Exceptions (Article XXI) clauses of the GATT 1994 to ensure, prevent, and deter parties from enjoying economic advantages illicitly obtained from the labour of child soldiers. As the International Labour Organization has advocated in ILO Convention No. 182, States also have a significant role in post-conflict situations to guarantee effective and meaningful international human rights protection in the demobilization of child soldiers and their reintegration to their respective home communities and regional societies. Where child soldiers have been used en masse to perpetuate trade in both facially-licit and contraband goods, States can design policy measures that facially depart from the multilateral trading rules against non-discrimination, most favoured nation, market access, and unfair trade, but without incurring international legal sanction.
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The Law of Unintended Consequences: A Critique of the Dilutive Effects and Efficiency Costs of Multilayer RegulationThis Article examines the role obstruction charges play in the regulatory framework covering modern public corporations and their members. It finds that prosecutors’ reliance on obstruction charges undermines the legitimacy of substantive rules for enterprise behavior. This pattern not only causes significant inefficiency on its own, but indicates a broader problem with multilayer regulation. That is, in a previously regulated arena, the pre-existing legal environment may warp a new set of rules in undesirable ways. The Article concludes by proposing a means to address this problem generally and remove unnecessary costs associated with the compliance regime specifically.
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A Universal Enemy? Legal Regimes of Exclusion and Exemption Under the ‘Global War on Terror'This essay argues that the ongoing U.S.-driven “Global War on Terror” stands apart from similar state campaigns in its special focus on confronting “foreign fighters” – armed transnational non-state Islamists operating outside their home countries – in places where the U.S. is no less foreign. This global hunt for foreign fighters animates diverse attempts to exclude similarly “out of place” Muslim migrants and travelers from legal protection by reshaping laws and policies on interrogation, detention, immigration, and citizenship. Yet at the same time, certain other outsiders – namely the U.S. and its allies – enjoy various forms of exemption from local legal accountability. This essay illustrates this braided logic of exclusion and exemption by juxtaposing the problems of extraordinary rendition and military contractor impunity in both post-war Bosnia-Herzegovina and post-invasion Iraq. This framework – which predates and will likely outlast the Bush administration – undermines the rule of law and state-building efforts and occludes crucial questions surrounding the legitimacy of how U.S. global power is exercised. This essay employs treaties, Bosnian, Iraqi, and U.S. statutes, cases, and regulations to reframe post-Cold War debates about nation-building and post-9/11 arguments about the laws of war.
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A Political Reading of the ConstitutionConstitutional theory greatly benefits by the use of intellectual resources from disciplines such as political theory and philosophy of language. In this work, such elements are combined to elaborate on the agenda of constitutional theory and distinguish it from other projects. The emphasis is put on the possibility of understanding the constitution as a political grammar, providing its users –the participants of the politico-constitutional process broadly speaking– with syntactic rules and semantic signposts to formulate their ideas, projects, strategies. This view can account for the radical instability of constitutional meaning –in other words, disagreement– by pointing to the so-called separation of signifier and signified made prominent by contemporary philosophy, reinforced by the fact that the recursiveness and self-reference of written language makes the syntactic functions of the constitution open to the same instability that its semantic contents have. Regarding the constitution, just as any other text, we can proclaim the death of the author.
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Rethinking ‘Preventive Detention’ from a Comparative Perspective: Three Frameworks for Detaining Terrorist SuspectsPresident Barack Obama has convened a multiagency taskforce whose remit includes considering whether the U.S. should develop a new system of ‘preventive detention’ to hold terrorist suspects. American scholars and advocates who favor the establishment of a ‘preventive detention’ regime in the United States frequently point to comparative examples in support of their argument. At the same time, advocates and scholars opposed to the introduction of such a system often turn to comparative law to bolster their arguments against ‘preventive detention.’ Thus far, however, the scholarship produced by both sides of the debate has been limited in two key respects. Firstly, there have been definitional inconsistencies in the literature—the term ‘preventive detention’ has been used over-broadly, to describe a number of different kinds of detention, with very little acknowledgment of the fundamental differences between these alternative regimes. Secondly, the debate has been narrow in scope—focusing almost exclusively on ‘preventive detention’ in three or four other (overwhelmingly Anglophone) countries. This Article seeks to advance the debate about ‘preventive detention’ by moving beyond each of these limitations. First, the Article defines, analyzes, and differentiates between the different kinds of ‘preventive detention.’ Second, the Article broadens the scope of the debate by comparing the systems of terrorism-related ‘preventive detention’ in use in thirty-two different countries. The Article constructs a taxonomy of ‘preventive detention,’ based on core principles of international law, to distill the key attributes of the preventive detention regimes in each of the countries surveyed. Using the taxonomy, the Article proposes that there are three different overarching frameworks used to detain terrorist suspect detainees: (1) the pre-trial detention framework; (2) the immigration detention framework; and (3) the national security detention framework. This Article proposes that U.S. policymakers contemplating possible future approaches to the detention of suspected terrorists should move beyond the inapposite and misleading question of whether to introduce ‘preventive detention,’ and should instead determine which of these three frameworks offers the most appropriate approach to the detention of terrorist suspects. The Article concludes with the argument that, once this determination is made, U.S. policymakers should conclude that a version of the pre-trial detention framework approach would be most suited for use in the United States.
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Maximizing Participation Through Campaign Finance Regulation: A Cap and Trade Mechanism for Political MoneyThis Article attempts to reroute a burgeoning area of campaign finance scholarship and reform. Though many previous proposals have enshrined liberty or equality as the sole animating value to pursue through doctrinal and political means, few have considered the impact of campaign finance regulation on citizen participation. Those that have proposed participation as a goal often remain tied to unworkable or self-defeating notions of equality. In building an alternative model of maximizing participation, this Article rejects the premise that direct political action such as volunteering embodies a superior form of participation to contributions, but recognizes the externalities that the latter form may produce. It proposes a new mechanism for reform: a cap and trade policy in which citizens can increase their rights to contribute to political candidates or parties based by purchasing permits from other contributors. Derived from proposals to regulate pollution in environmental economics, this mechanism serves as a helpful alternative to ineffective and inefficient contribution limits.
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PUBLIC FINANCE AND THE FORTUNES OF THE EARLY AMERICAN LOTTERYThis Article connects the rise and fall of the early American lottery with changes in the laws governing incorporation and public borrowing. Part II of the Article describes the legal obstacles that hindered private and public actors from carrying out internal improvements in order to illustrate why lotteries were an appealing funding device. Part III uses case study analysis of six eighteenth century lotteries to explore why lotteries were initiated and why they failed to achieve their promise as a funding device. Part IV makes the link between the uses of the lottery as an instrument of government and the fortunes of the lottery in American public life. As I will argue, public finance imperatives did much to cause the historical rise and fall of the lottery, as well as its resurgence in the modern day.
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Justiciability and the Role of Courts in Adequacy Litigation: Preserving the Constitutional Right to EducationIn the first study of opinions handed down in education adequacy litigation between January 2005 and January 2008, this paper shows a marked shift away from outcomes favorable to adequacy plaintiffs. Following two decades in which courts spurred significant reforms in our nation’s neediest schools by interpreting the education clauses of their state constitutions to guarantee an “adequate” education for all students, the years 2005 to 2008 have seen a dramatic change in the judicial response to adequacy litigation. Through an analysis of the latest body of cases, this paper shows that separation of powers concerns have begun to drive state courts out of this important avenue of education reform. These separation of powers concerns have become more salient as litigators pressure courts to mandate concrete remedies that would trump legislative discretion. The most problematic such remedy is one that would require courts to order the legislature to make specific budgetary allocations. This trend spans courts seeing adequacy claims for the first time and those presiding over a second round of adequacy litigation. This paper argues that despite this shift recent courts have not wholly disavowed their role in substantiating the state constitutional right to education. Courts remain willing to act as a constitutional check on the legislature’s actions within the field of education if only plaintiffs can find a way to respond to concerns over remedies. This paper examines the nature of and reasons for courts’ increasing separation of powers concerns and then briefly explores what lessons adequacy plaintiffs might take away for use in future litigation.
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Pay or Play Programs and ERISA Section 514: Proposals for Amending the Statutory SchemeERISA section 514 preempts many state and local “pay or play” laws, which mandate employer contributions to their employees’ health insurance. Given the attention that health insurance received in the presidential election cycle, there is a reasonable likelihood of legislative action to achieve a national “pay or play” health care program in the coming years. But a national bill will leave gaps that states and localities may be able to fill – if they were not preempted by ERISA. Therefore, the negotiation of a national health insurance program should address ERISA preemption in order to enable state experimentation. The Article proposes and evaluates a number of options to amend section 514, ranging from targeted statutory changes to federal agency discretion to “de-preempt” state and local pay or play laws.
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Grocery Store Activism: A WTO Compliant Means to Incentivize Social ResponsibilityDespite the increases in global wealth attributable to globalization and increased international trade, the damage done by socially irresponsible production practices remains an area of concern for international human and labor rights advocates. Because international trade law under the World Trade Organization (WTO) imposes strict limitations on the policy options available to Member States, international human rights and international trade have been viewed as fundamentally at odds with one another. This Article argues that market-based incentives can be used to allow international trade to reinforce established human rights principles, rather than constantly undermining government attempts to formulate appropriate policy solutions. This Article proposes that the United States create and implement a voluntary, government-run system of human rights label. Like the content positive labels currently offered for organic products, this human rights labeling system would provide consumers with additional information in order to reward producers who had met certain standards. Unlike the current system that allows producers to place whatever “human rights” labels that they want on their products and allows numerous third-party certification schemes, a government-run system could serve to create one label that consumers will recognize as credible, consistent, and enforceable. Most importantly, the labeling system proposed by this Article does not run afoul of the United States’s commitments under the WTO. The two relevant agreements, the Agreement on Technical Barriers to Trade (TBT Agreement) and the General Agreement on Tariffs and Trade (GATT), are examined in depth for any possible conflicts. The Article concludes that because of the voluntary nature of the label, the proposed labeling scheme should be able to survive scrutiny by a WTO dispute settlement panel, if it such a challenge were to arise. Further, the Article argues that the label could be justified as a general exception, as provided for in Article XX of the GATT.
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Regional Minorities, Immigrants, and Migrants: The Reframing of Minority Language Rights in EuropeScholarly debate about minority language rights in Europe is usually framed in terms of concern with either "regional" language minorities (such as Basque speakers in Spain) or concern with "immigrant" language minorities (such as Turkish speakers in Germany), with the interests of the two groups being seen as distinct, or even opposed. As a consequence, scholarship in this area has thus far focused upon the fact that a two-tier system of rights exists, with both nation state governments and trans-European institutions privileging "regional" groupings, rather than "immigrant” groups, with little exploration of the relationship between the rights of the two different groupings. This Essay argues, in contrast, that in recent years, national governments and pan-European organizations have fundamentally altered their approach to the language rights of both national minorities and immigrant minorities—in part due to the role played by transnational language communities and European migrants—so that the rights of regional and immigrant language minorities may actually be converging. The Essay proposes that a close analysis of the recent recommendations of the Advisory Committee to the Committee of Ministers on the Framework Convention on National Minorities and the Committee of Experts on the European Charter for Regional and Minority Languages, combined with the jurisprudence of the European Court of Justice, reveals an emerging trend toward this fundamental reframing of minority language rights. The treaty bodies and the ECJ appear to be departing from the traditionally held view of language rights as inherently preservationist and only applicable to members of certain indigenous, territorially anchored minority communities, and are instead adopting a broader, more expansive, human-rights based interpretation of language laws. Treaty bodies and transnational courts also appear to be moving away from treating language groups as collective holders of language rights, to treating individual language speakers as the primary rights-holders. In line with this reframing, this Essay argues that the very instruments originally constructed to protect the rights of the hitherto privileged “regional” minority groups may also ultimately be employed to promote the rights of individual speakers of the as-yet less favored “immigrant” languages.
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Insider Trading in Congress - The Need for RegulationIs regulation of Congressional insider trading desirable? We intend to use the STOCK Act (H.R. 682) as a springboard for approaching the need for Congressional insider trading regulation from a slightly more academic perspective. First, we describe the STOCK Act by placing it in recent historical context. Understanding the motivation to reform Congressional ethics that existed earlier this decade is crucial to evaluating the STOCK Act and its prospects for eventual passage by Congress. Second, we review the body of insider trading law that already operates to restrain corporate insiders and others from making some trades. The most important SEC rules, as well as the most significant cases in establishing insider trading doctrine-among them, Chiarella v. United States, Dirks v. Securities and Exchange Commission, and United States v. O'Hagan - are considered with an eye toward their relevance to what we will generally refer to as Congressional insider trading. To assess the practical need for regulation of Congressional insider trading, we also discuss Congressional ethics rules and the Speech or Debate Clause. The behavior of legislators and their aides is affected by both formal rules and informal norms, and we endeavor to explore both. The adequacy of current enforcement mechanisms for these rules and standards is also considered.
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Liability of Bias: A Comparative Study of Gender-Related Interests in Negligence LawThis Article examines a feminist argument concerning the gendered structure of tort law, according to which the limited recognition of indirect emotional harm reflects a bias against women and “femininity.” This examination is carried out through a comparative analysis of two sorts. First, it considers the judicial treatment of emotional harm as compared with the treatment of pure economic loss – a harm which, for the purposes of this research, will be considered more “male” and men-oriented. The central thesis of the article is that, while it appears that both types of harm have ultimately gained very limited recognition, implying lack of gender-based adherence to one interest over the other, indirect-emotional harm could have had the upper hand in being more easily embraced into tort law. This is shown by exploring the relevant differences between these two types of harm from various perspectives, including the internal-doctrinal question within “tort law,” its interrelations with contract law, and from the points of view of both economic analysis and corrective justice. Second, the article compares both Anglo-American law and Israeli law with respect to indirect emotional harm and economic loss, to reveal a significant departure in Israeli tort law–generally firmly founded on common law–from Anglo-American case-law which presents a relatively balanced no-liability rule for both losses. While Israeli courts generally maintain a similar rhetoric of limited liability to both types of harm, in the details of legal analysis and practical decisions, economic interests are recognized and protected extensively. By contrast, indirect emotional harm is only rarely the ground for imposition of liability. The article finally reflects on the phenomenon whereby the Israeli legal system that draws so heavily on dominant Anglo-American law and preserves its rhetoric, still administers very different legal and ideological standards. It is suggested that these differences be read as extremist application by Israeli courts of Anglo-American gender-based tendencies. Though absorbed through seemingly neutral doctrines, these tendencies were now practiced and developed within a more gendered stratified society, which holds, at the same time, a legal rhetoric of advanced gender equality. This characteristic of Israeli legal system vis-à-vis women’s rights sheds an interesting light on the differences the three systems share.
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No Such Thing as ‘Attorney Estoppel’: Ethical Conflicts and Attorney Prior PublicationsLaw school graduates today are increasingly freighted with Internet-accessible and readily searchable publication records. Can these publications create actionable conflicts of interest for attorneys later on? Assessing the relevance of attorney publications requires balancing clients’ entitlement to adequate and zealous representation against the rights of lawyers to express opinions and participate freely in social discourse. The Model Rules offer little guidance, and academics have largely skirted the issue. This paper presents the Publication Conflicts test, a framework for inquiry to assess the impact of prior publications. Then, informed by interviews with judges, ethics experts, law professors and practitioners, this paper presents the view that in general, an attorney’s prior publications lie outside the ‘bounded exclusivity’ that attorneys owe their clients, and thus, do not amount to meaningful conflicts of interest.
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From Paradox to Subsidiarity: The United States and Human Rights Treaty BodiesIt is frequently said that the United States has a paradoxical human rights policy. This Article takes a closer look at that idea from the perspective of U.S. engagement with international human rights treaty bodies, the quasi-adjudicatory expert committees or commissions that exercise supervisory jurisdiction over the U.S. human rights record. Contrary to popular perception that the U.S. thumbs its nose at these bodies, the U.S. in fact engages quite actively with their human rights procedures. To untangle the associated issues, the Article proceeds in six parts. Part I begins by reviewing the current legal framework that structures U.S. human rights treaty body engagements at the national and international levels. Part II then examines the specific ways the U.S. in fact engages with the three principal supervisory competences exercised by UN, OAS, and ILO treaty body systems: periodic reporting, quasi-adjudication, and promotional activities. Part III considers the countervailing push-pull pressures that influence and shape U.S. engagement policy at the foreign-policy and domestic-policy levels, respectively, while Part IV identifies the three principal mediating techniques the U.S. employs to accommodate these competing pressures. These mediating techniques, which draw heavily, if selectively, on the formalized rules of international human rights law's subsidiarity principle allow the U.S. to pursue a framework policy toward treaty body engagement that at once permits active U.S. engagement with international procedures, appeases conservative critiques of such engagement (at both domestic and foreign-policy levels), and allows the U.S. to remain technically compliant with its externally-oriented treaty obligations. What it does not do, as currently pursued, is facilitate internal domestic reflection on the nation's treaty-based human rights commitments. Indeed, responsive to the dominant pressures exerted on U.S. policymakers from both within and without government (from institutionalists, realists, and insulationists), these mediating techniques draw on only half of subsidiarity's blueprint. Part V discusses this conflict, the structural opportunities for addressing it, and the importance of giving the principle of subsidiarity its full and intended meaning in international human rights law. The piece concludes by looking at where U.S. policy can be expected to lead in coming years, as U.S. policymakers continue to chart a middle course through difficult and shifting pressures. This middle course is one that does not reject, but rather solidly embraces supervisory human rights treaty body processes, albeit under a vision of their jurisdiction as strictly subsidiary to domestic decision-making processes. The challenge for domestic advocates is to ensure that this subsidiarity principle is embraced in its full dimensionality, not only in its negative facets. An outline of how this might be institutionally pursued and structured in the United States, particularly through the establishment of an executive focal point on treaty implementation and a national human rights commission with a comprehensive monitoring mandate, is discussed in Part VI.
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Keepers of the U.S. Code: the Case for a Congressional Clerkship ProgramUnder the Constitution, Congress drives the federal lawmaking process. Yet every year our best new lawyers focus their competitive energies not on jobs with the nation’s legislature but rather on judicial clerkships and other prestigious apprenticeships with executive agencies, law firms, and academe. Congress should be concerned. But it needs to understand that this demand deficit has grown from a supply problem. Unlike the courts, agencies, firms, and academe, Congress lacks an apprenticeship program to capture the interest, harness the abilities, and shape the minds of the law’s young elite. Legislation passed by the House is a terrific starting point for a successful congressional clerkship program.
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Nowhere to Hide: Overbreadth and Other Constitutional Challenges Facing the Current Designation RegimeThis Article examines the legal foundation and policy implications of the President’s power to designate terrorist organizations. These administrative actions carry severe repercussions because of the criminal prohibition on knowingly providing material support to the designated entities, codified at 18 U.S.C. § 2339B. Due to the overlap of the President’s Commander-in-Chief power to block enemy assets and specific Congressional authorization of such actions, the designations themselves appear to be immune from constitutional challenges. It is the addition of concomitant criminal sanctions, however, that drastically expands the potency of the designations and turns them into an effective national security tool. This Article argues that the resulting mixture exposes the regime to attack on First and Fifth Amendment grounds. That is, though the designation and material support criminalization elements are each individually legitimate, their combination poses a constitutional issue distinct from that resolved in Scales v. United States and other precedents currently seen as controlling.
