• A Modern Fiduciary Theory of the Necessary & Proper Clause

      Levitz, Philip (2012-03-01)
      This Article offers a new originalist account of the Necessary and Proper Clause, with important implications for the Supreme Court’s pending decision on the constitutionality of the Affordable Care Act’s individual mandate. In United States v. Comstock, the Supreme Court recently offered a substantial rethinking of the Necessary and Proper Clause, for perhaps the first time since McCulloch v. Maryland. Underlying the Court’s Comstock decision are two puzzles. First, there is a puzzle on the surface of the opinion as to how to apply Justice Breyer’s novel five “considerations” in future cases, which this Article demonstrates has already left lower courts deeply confused, notably in the cases on the constitutionality of the Affordable Care Act. Second, Comstock brings back to the surface a deeper puzzle that has sat dormant in Necessary and Proper Clause jurisprudence from the beginning: the puzzle of what it really means for congressional legislation to be rationally related to an enumerated constitutional end. This Article seeks to solve both puzzles together by proposing a modern fiduciary theory of the Necessary and Proper Clause that provides meaning to Breyer’s considerations and clarifies the nature of a rational relation between legislated means and enumerated ends. After canvassing the range of possible readings of Comstock and its means-end fit test, the Article draws on newly uncovered history of the fiduciary and agency law roots of the Necessary and Proper Clause to argue that the means-end test that is the best reading of Comstock would ask whether Congress, in legislating, is acting as a proper fiduciary of the people of the United States, within the context of its enumerated powers. Using the Affordable Care Act as a case study, the Article demonstrates that the modern fiduciary theory brings to bear a new and valuable toolset in interpreting the Act, and ultimately makes clear that the Necessary and Proper Clause should not pose a challenge to the law’s constitutionality.
    • A NEW REMEDY FOR HIGH-STAKES EDUCATION LAWSUITS IN A POST-NCLB WORLD

      Suarez, Christopher (2009-11-01)
      Sheff 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.
    • A Political Reading of the Constitution

      Munoz L., Fernando (2009-03-12)
      Constitutional 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.
    • A Private Ordering Solution to Blockholder Disclosure

      Mitts, Joshua (2013-01-01)
      The recent debate over reforming the Securities Exchange Act section 13(d) ten-day filing window demonstrates the importance of balancing the costs and benefits of delayed blockholder disclosure in both consequentialist and deontological terms. While hedge fund activism may create shareholder value, short-termism is a very real problem for firms today. Rather than a rigid mandatory rule, the duration of the blockholder disclosure window should be set through a shareholder amendment to the corporate bylaws that empowers shareholders to set an optimal maximum length for each firm. To internalize the economic and moral costs to society of permitting trading on asymmetric information, the SEC should impose a filing fee on blockholders utilizing the delayed disclosure window and use the proceeds to compensate investors who sold shares while a blockholder engaged in a stealth accumulation.
    • A Universal Enemy? Legal Regimes of Exclusion and Exemption Under the ‘Global War on Terror'

      Li, Darryl (2009-08-06)
      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.
    • ADMINISTRATIVE ANSWERS TO “MAJOR QUESTIONS”: ON THE DEMOCRATIC AUTHORITY OF AGENCY STATUTORY INTERPRETATION

      Emerson, Blake (2016-01-01)
      This Article critiques the legal and theoretical premises of the “major questions doctrine,” and proposes a revision of the doctrine that better comports with the institutional structure and ideological origins of our administrative state. The major questions doctrine holds that courts generally should not defer to agency statutory interpretations that concern questions of “vast economic or political significance.” This doctrine, most recently invoked by the Supreme Court in King v. Burwell, purports to enforce the constitutional norms of non-delegation and popular sovereignty. But it relies on two auxiliary political-theoretic assumptions about the proper roles of courts and agencies. First, it imports the assumption of the Legal Process School that courts are always the primary interpreters of the important value questions implicated by statutory law. Second, it imports Max Weber’s assumption that administrative officials are morally-neutral technocrats, who should only implement value choices specified by statute. These assumptions do not capture important aspects of the institutional structure and ideological justification for our American administrative state. I show how the Progressive thinkers who first advocated administrative governance in the United States believed that administrators should resolve important value questions in consultation with the affected public. Our current institutions reflect this vision to a significant degree, with broad-textured statutes that leave significant norm-setting authority to agencies, while requiring that such decisions be made through participatory procedures. I propose that the major questions doctrine should be reformulated, so that an agency’s resolution of a “major question” can receive full Chevron deference if it is promulgated through notice-and-comment rulemaking and addresses the relevant political and economic questions in the rulemaking record. If an agency’s interpretation is not promulgated through rulemaking, the reviewing court should give deference to the agency’s interpretation proportional to the degree of its deliberative engagement with the affected public, and its discussion of the relevant policy questions.
    • Adverse Reactions: Structure, Philosophy, and Outcomes of the Patient Protection and Affordable Care Act

      Lee, Michael (2010-07-01)
      On March 24th, 2010, President Obama signed the Patient Protection and Affordable Care Act, declaring “everybody should have some basic security when it comes to their health care.” This Note provides legal scholarship’s first comprehensive examination of this complex legislation. Second, it reframes the bill by proposing that its miscellaneous-seeming provisions are designed to protect a single, central provision: the ban on health discrimination. Finally, it argues that underlying economic forces will likely cause PPACA to do more harm than good. While health reform may ultimately prove successful, America has good reason to be concerned.
    • An "Outside Limit" for Refund Suits: The Case Against the Tax Exception to the Six-Year Bar on Claims Against the Government

      Gustafson, Adam (2011-03-01)
      Longstanding judicial precedent and the official position of the I.R.S. agree that federal tax refund suits are limited only by the Internal Revenue Code’s two-year statute of limitations, which is triggered only when the I.R.S. mails the claimant a notice of disallowance. 26 U.S.C. § 6532(a)(1). This article contends that tax refund litigation is also governed by the six-year limitation on “[e]very civil action commenced against the United States,” which is triggered upon the accrual of a claim. 28 U.S.C. § 2401(a). The prevailing view that the general statute of limitations does not apply to tax refund litigation is based on Detroit Trust Co. v. United States, 131 Ct. Cl. 223 (1955). Under Detroit Trust, a taxpayer may indefinitely sit on her right to sue the Government unless the I.R.S. issues a formal disallowance that triggers § 6532(a)(1). The contrary view advanced here, that the six-year bar imposes an “outside limit” on the tax-specific statute of limitations, was recently stated in dicta by a unanimous Supreme Court in United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1 (2008). The persuasiveness of Detroit Trust was further eroded when a district court held that the case was “wrongly decided” and dismissed as untimely a refund suit filed more than six years after the claim accrued, even though the I.R.S. had never disallowed the underlying claim. Wagenet v. United States, No. 08-00142 AG (ANx), 2009 U.S. Dist. LEXIS 115547 (C.D. Cal. Sep. 14, 2009). Applying the six-year bar as a backstop to tax refund suits would enforce its plain meaning, would accord with multiple canons of statutory construction, would promote timely resolution of tax refund claims, and would bring tax refund litigation into line with the rest of federal claims jurisprudence, thereby eliminating one manifestation of the tax exceptionalism that the Supreme Court recently criticized in Mayo Foundation for Medical Education & Research v. United States, No. 09-837, slip op. at 9 (U.S. Jan. 11, 2011).
    • An Alternative to Death-Qualification: The Nonunanimous Penalty Jury

      Tucker, Jane (2012-03-01)
      Eliminating jurors for cause based on their opinions concerning the death-penalty (“death-qualification”) is a widespread practice that has been upheld by multiple Supreme Court cases, but which has been widely criticized for resulting in juries that studies have shown to be more conviction-prone, and biased toward the prosecution, in addition to being unrepresentative of the community at large. This Note offers a possible solution to the problems caused by death-qualification at both the guilt and penalty phases, unlike those proposed thus far: specifically, the elimination of death-qualification altogether, coupled with the relaxation of the unanimity requirement at the penalty phase.
    • An Illusion of Safety: Why Congress Should Let FISA's Lone Wolf Amendment Expire

      Minopoli II, Salvatore (2019-01-01)
      FISA’s lone wolf amendment is set to expire on December 15, 2019. Created after 9/11 to address evolving threats, specifically lone wolf terrorists, it expanded the government's ability to obtain FISA surveillance warrants for supposed lone wolves. However, since its enactment, it has apparently never been used in the course of an investigation, despite the significant number of lone wolf attacks. Moreover, it is not clear that the lone wolf amendment was originally needed, or that it has the ability to effectively confront the lone wolf threat. This Note argues that Congress should critically evaluate the lone wolf amendment, use this as an opportunity to exercise its oversight role, and let the lone wolf amendment expire.
    • Apartheid, Profits, and Corporate Social Responsibility: A Case Study of Multinational Corporations in Saudi Arabia

      Nourafchan, Nicolo (2011-01-20)
      This paper looks at the real motivations behind the Corporate Social Responsibility (CSR) regime through the prism of American corporate activities in Saudi Arabia. The author finds that several companies generally hailed as leading the way in corporate social responsibility, such as Starbucks, McDonalds and the Hilton Corporation, are in effect perpetuating shocking abuses of human rights—specifically women’s rights—for the sake of maximizing profits. Such behavior suggests that, for many companies, the CSR regime is not motivated by a wider normative shift towards more socially responsible behavior, as many authors have suggested, but rather is simply a tool to maximize a corporation’s monetary value by appealing to niche markets. The author suggests that to end this troubling dynamic, the political and judicial branches of government should learn from the harsh lessons gained during the South African Apartheid and step forward to prohibit domestic companies from engaging in gross patterns of gender discrimination abroad.
    • Bush v. Gore as Precedent

      Flanders, Chad (2007-03-04)
      My essay treats the thorny question of the precedential value of Bush v. Gore from three angles. In the first part, I look at the history of the Supreme Court limiting its decisions to the facts of present case. The venture into history is designed to test the argument made by some that the language limiting the reach of Bush v. Gore is an innocuous example of narrowing the scope of the principle propounded in Bush, rather than an objectionable restriction of the ruling to only one unique set of circumstances ­ the circumstances of Bush v. Gore. The second part of my essay looks at the question of precedent from a more theoretical angle. What does it mean for an opinion to have precedential value, as opposed to being good only for a single case? Finally, in the third part, I examine in detail how the issue of Bush v. Gore as precedent has played out in two recent cases, one in the 9th circuit and one the 6th circuit.
    • Competition, Consumer Welfare, and the Social Cost of Monopoly

      Lee, Yoon-Ho (2006-03-16)
      Conventional deadweight loss measures of the social cost of monopoly ignore, among other things, the social cost of inducing competition and thus cannot accurately capture the loss in social welfare. In this Article, we suggest an alternative method of measuring the social cost of monopoly. Using elements of general equilibrium theory, we propose a social cost metric where the benchmark is the Pareto optimal state of the economy that uses the least amount of resources, consistent with consumers’ utility levels in the monopolized state. Since the primary goal of antitrust policy is the enhancement of consumer welfare, the proper benchmark is Pareto optimality, not simply competitive markets. We discuss the implications of our approach for antitrust law as well as how our methodology can be used in practice for allegations of monopoly power given a history of price-demand observations.
    • Constitutional Changes, Transitional Justice, and Legitimacy: The Life and Death of Argentina’s “Amnesty” Laws.

      Elias, Jose Sebastian (2007-11-11)
      The article analyzes in-depth the legal and political process through which Argentina came, first, to amnesty former military officers who took part in the repression during the last dictatorship (1976-1983) and, then, to nullify those “amnesties” and indict the officers again eighteen years later. The thematic core is the legitimacy (or lack of it) of constitutional changes carried out by unconventional means, which are the unavoidable spin-offs of the very difficult process of transitional justice that has taken place in Argentina. Section I gives an overview of the most salient legal and political facts of the last twenty-five years and poses the central questions to be tackled in the rest of the article. Section II covers the restoration of democracy in 1983 and the early attempts to bring the perpetrators of heinous crimes to justice. I analyze the position of some scholars who have suggested that Alfonsin should have chosen the path of constitutional lawmaking, instead of the rocky road of transitional justice. I argue that such position was untenable, in light of both Alfonsin’s political commitments and of the redemptive character of the 1983 election. However, I contend that Alfonsin intended to pursue both military trials and constitutional reform, and give reasons why the trials achieved a logical and temporal priority. The failure of the enterprise is also analyzed in-depth, with particular emphasis in the process that ended up in the enactment of the so-called “amnesty laws”. This Section also scrutinizes the role of the Supreme Court in the post-1983 period, the political incentives at play when the Court decided the constitutionality of the “amnesty laws”, and what alternatives –if any- the justices had at hand. The Section closes with an examination of the political process that led to the 1994 Constitutional Convention and the grant of constitutional standing to a number of international human rights treaties which were later deemed fundamental by the Supreme Court to nullify both Alfonsin’s “amnesties” and Menem’s pardons. Section III, finally, discusses the legitimacy of the Simon ruling by the Supreme Court, declaring the death of the “amnesty laws”, as well as the political and constitutional implications of such a decision. Contrarily to a majority of Argentine commentators, I argue that the process that ended up in Simon, although wrapped up in the attractive rhetoric of human rights, can be seen as little more than the imposition of political power by the victors. I offer an alternative view that tries to fit the decision in a broader picture of political legitimacy. However, I give reasons why, though the outcomes may be deemed legitimate from a certain perspective, the means used to achieve such results are of dubious legitimacy.
    • Contracting for Financial Privacy: The Rights of Banks and Customers Under the Reauthorized Patriot Act

      Prabhu, Aditi (2007-04-18)
      The 2001 Patriot Act chipped away financial privacy protections by allowing law enforcement authorities easier access to bank customer records. Under the Patriot Act, federal authorities may access customer records by issuing formal subpoena-like requests under the Foreign Intelligence Surveillance Act (FISA) or informal national security letters (NSLs) to banks while prohibiting notice to any affected customers. However, the 2006 revisions to the Patriot Act permit banks to challenge FISA requests and NSLs in federal court before releasing customer records. While the Act does not require banks to make these challenges on behalf of their customers, this Paper will argue that the contracts banks sign with their customers – interpreted in light of the banking tradition of confidentiality and the current regime of federal and state privacy protections – obligate banks to review government requests for customer records and file challenges when appropriate. Furthermore, I will argue that banks and customers should be able to enter into contracts explicitly obligating banks to challenge FISA requests and NSLs, and that such contracts would be enforceable and financially feasible.
    • Deal or No Deal? Remedying ineffective Assistance of Counsel during Plea Bargaining

      Perez, David (2010-02-01)
      Does a defendant suffer a remedial prejudice if, as a result of ineffective assistance of counsel during plea-bargaining, s/he rejects a favorable plea offer but subsequently receives a fair trial? Courts on both the federal and state levels remain bitterly divided over this question. Although there is no clear answer, courts have generally taken one of three approaches. The first two options – ordering a new trial or reinstating the original plea offer – are remedial, and assume that the defendant suffers prejudice. The third option finds that the defendant suffered no prejudice because s/he ultimately received a fair trial. Thus, courts that embrace the third approach order no remedy at all. This ARTICLE discusses the strengths and weaknesses of each approach. In particular, it argues that the second approach violates various judicial principles, while the third approach relies on a flawed understanding of the Sixth Amendment. This ARTICLE introduces the notion that ineffective assistance of counsel during plea-bargaining is a structural-error, rather than a trial-error, an argument that hitherto has not been applied to these types of cases, but one that, once applied, supports a finding of prejudice – even if the trial was otherwise “fair.” Given the logistical hurdles involved in reinstating the original plea, I conclude that the only workable solution is to order a new trial.
    • Deliberative Dilemmas: A Critique of Deliberation Day from the Perspective of Election Law

      Flanders, Chad (2007-03-04)
      My Essay tries to show the ways in which deliberative democrats and election law theorists need each other. I do so by examining in detail one proposed reform of American democracy along deliberative lines, offered by Bruce Ackerman and James Fishkin in their book Deliberation Day. The focus here is partial, but not, I think unwarranted. Ackerman and Fishkin’s book represents a bold and rigorously formulated effort to make voting more reflective, and citizens more engaged in voting. However, in the course of their proposals, they miss how key elements of the structure of American election law threaten to make “deliberation day” into less of an arena for wide-ranging democratic deliberation than it could be and to introduce deliberation into areas where we might prefer that it not be.
    • Development Theory and Foundations of Universal Access Policies

      Pereira Neto, Caio (2005-08-01)
      This article discusses the justifications to implement public policies towards widespread access to information and communications technologies (ICTs) in the context of developing countries. It argues that the so-called universal access policies can be seen as important pieces of broader development strategies. In this sense, there is a strong case for governments of developing countries to foster access to ICTs. The work is structured in three parts. Part I examines the theoretical arguments and empirical evidence supporting the positive impact of access to ICTs on economic growth. Part II discusses the impact of access to ICTs on the improvement of human functionings and expansion of human capabilities. Finally, Part III addresses the impact of universal access policies on the reduction of inequality, relating this effect to sustainable development. A brief conclusion ties the three parts together.
    • Dialectic of Transnationalism: Unauthorized Migration and Human Rights, 1993–2013

      Mann, Itamar (2013-07-01)
      Systematic violations of the rights of unauthorized migrants on the fault lines between developed and developing countries expose the dialectic of transnationalism, a dynamic that occurs when both policy and judicial review go transnational. Three concurrent patterns define the dialectic: First, executive and judicial networks are bifurcated from each other, producing significant policies beyond the reach of judiciaries. Second, judiciaries exacerbate their bifurcation from policymaking through transnational decisions. Third, transnational law replaces absolute legal rules with pragmatic problem solving, eroding the normative basis of human rights. Although these patterns seem to show that the violations are an intractable feature of contemporary international law, this Article proposes countering them with “critical absolutism.” This approach identifies opportunities in which the dialectic can be challenged by presenting states with an existential dilemma: either treat people as humans and risk changing who you are (in terms of the composition of your population), or give up human rights and risk changing who you are (in terms of your constitutive commitments).
    • Do the Fifth and Sixth Amendments Prohibit the Designation of U.S. Persons Under the International Emergency Economic Powers Act?

      Sandberg-Zakian, Eric (2010-04-01)
      The International Emergency Economic Powers Act (IEEPA) empowers the executive branch to designate organizations and individuals “Specially Designated Global Terrorists.” Though IEEPA designation is used against both domestic and foreign entities, its consequences are most severe within the United States. The designee’s assets are frozen and transacting with the designee becomes a federal felony. For an American organization, IEEPA designation is a death sentence. For an Amercan individual, it amounts to house arrest. This Article analyzes IEEPA using the Mendoza-Martinez test and concludes that IEEPA designation of U.S. persons violates the Fifth and Sixth Amendments by imposing punishment without providing the required procedural protections. This Article offers a new framework for evaluating preventive counterterrorism policies and provides clarity to a notoriously unclear area of our constitutional law—the jurisprudence of the civil/criminal divide.