Showing papers in "Harvard Journal of Law and Public Policy in 2001"

Biological Terrorism: Legal Measures for Preventing Catastrophe

Abstract: Biological terrorism is a truly despicable subject, raising nightmares of primal fear. Disease -- plague, smallpox, and other decimating maladies -- is dire trauma embedded in humanity's collective consciousness. Now, when the threat of thermonuclear holocaust may be ebbing, a few zealots or criminals can kill thousands (or more) and destabilize social order by revealing that no government, even that of superpower America, can protect its citizenry. A biological attack means that everyone is vulnerable. This is terrorism nonpareil. This Article's agenda is modest: Set forth legal initiatives that might reduce the risks of bioterrorism, recognizing that those initiatives must be combined with nonlegal policies. For example, more money to develop sensors and to train medical personnel could be advantageously spent without proposing or amending legislation or regulations. Legal initiatives should be seen, therefore, as only part of a larger policy response to reduce terrorism opportunities, strengthen detection, focus resources, and deter those terrorists who are averse to harsh penalties.(1) The agenda here is also overt. Law's contribution to preventing bioterrorism, though limited, is crucial. And time, unfortunately, is not on the side of the angels. This Article, therefore, is a call to action. Part I of this Article synthesizes the vast literature on bioterrorism,(2) describing various diseases that could be used and how those diseases might fulfill different objectives. Part II and Part III develop this Article's thesis that threats of bioterrorism call for a two-dimensional set of carefully tailored policies to reduce biological threats, but do not justify radical new overtures. Proposed regulatory modifications can restrict the availability of useful materials and equipment and increase the cost and likelihood of detection. Part II advances a regulatory agenda, mindful to not over-burden the bio-pharmaceutical industry, that would raise barriers to obtaining pathogens and weaponization technology. Since these regulatory measures are not perfectly prophylactic (i.e. terrorists might still gain deadly agents), modifications of law enforcement policies should detect, investigate, and stop terrorists who overcome the regulatory barriers and prepare weapons. Part III discusses the unique problems that clandestine biological terrorism presents for law enforcement and recommends measures to better identify bioterrorism threats without overstepping civil liberties and privacy rights. Put simply, the best strategy is two-pronged: Deny access to biological weapons capabilities, and-if capabilities are obtained -- apprehend the terrorist before attack. Legal measures offer no guarantee for preventing bioterrorism, but the measures described here might substantially diminish risks when combined with enhanced pathogen-relevant research and development, improved planning and communication among officials, and advanced intelligence capabilities. Many topics tangentially relevant to biological terrorism are not discussed here, either because law cannot significantly address them or because, even if addressed, law cannot materially diminish the risks of biological terrorism. This Article will not discuss the broad array of issues that span counter-terrorism policy.(3) Neither will it assess the merits of promoting enhanced research on pathogenicity nor consider the appropriate levels of stockpiled vaccines; these questions are better addressed by the medical and pharmaceutical communities.(4) This Article will not discuss the need for enhanced foreign intelligence; crucial information is not publicly available, and legal measures would not make much difference.(5) Nor will this article address preparations to respond after an attack happens; those measures are necessary but do not serve to prevent the attack.(6) A vast set of issues, substantially outside the scope of this Article and meriting separate attention, concerns the international proliferation of biological weapons and negotiated efforts to stanch their spread. …

"Multiply and Replenish": Considering Same-Sex Marriage in Light of State Interests in Marital Procreation

Abstract: [I]t seems to me at this time we need education in the obvious more than investigation of the obscure. --Oliver Wendell Holmes, Jr.(1) I. INTRODUCTION The definition, exclusive status, and legal benefits of marriage may become one of this decade's most important domestic policy issues in the United States. Many articulate and influential scholars, lawmakers, and commentators are asking why the preferred legal status and benefits of marriage should not be extended to unions other than traditional marriages (that is, exclusive, presumably lifelong, state approved consensual unions of a man and a not-closely-related woman).(2) Why should marriage be the only preferred and specially recognized connubial relationship in our laws while other forms of intimate personal relationships are denied the same or similar legal status? Why shouldn't same-sex marriage be legalized, or an equivalent marriage-like status be created (such as "civil union" or "domestic partnership") for same-sex couples?(3) A. Can the Proposed Legalization of Same-Sex Marriage Be Justified in Terms of the Compelling Social Interests That Justify the Legalization of Traditional Marriage? The movement to legalize same-sex marriage asks defenders of exclusive legal protection for heterosexual marriage to explain why our laws should permit heterosexual marriage but should not allow same-sex marriage or some marriage-like alternative status for same-sex couples. That question, however, gets the burden of proof backwards; the burden should rest on those who argue for a substantial change in the arrangement of a fundamental social institution to show justification for the proposed change.(4) Accordingly, a significant change in the definition or structure of a basic social institution like marriage should be considered seriously only if advocates of the proposed change first show by convincing evidence that the proposed change is likely to improve the institution of marriage or otherwise improve society. The burden is on advocates of same-sex marriage to show that legalizing same-sex marriage would comparably fulfill the public policies and social interests that underlie legal marriage, or fulfill other, equally compelling public policies and social interests. However, despite an outpouring of literature advocating same-sex marriage, the evidence that legalizing same-sex marriage or some equivalent domestic status would effect an overall improvement in the institution of marriage or in society is lacking.(5) Indeed, there are substantial indications that legalizing same-sex marriage would undermine some of the important social purposes for marriage and would ultimately harm society. I have argued elsewhere that claims that the United States Constitution mandates legalization of same-sex marriage are unsupported by the text, history, or precedents interpreting the Constitution, or any viable interpretation of constitutional doctrine.(6) Of course, just because the Constitution does not mandate legalization of same-sex marriage does not end the discussion; lawmakers may adopt laws that are not constitutionally mandated if they are not constitutionally forbidden, and it has not yet been suggested that the U.S. Constitution forbids the legalization of same-sex marriage.(7) Moreover, constitutional claims for same-sex marriage may turn on an assessment of the comparative contribution of traditional heterosexual marriages and of same-sex unions to the social interests that underlie marriage laws, and how important those interests are to society.(8) If the legalization of same-sex marriage were clearly shown to contribute to the social interests and policy purposes that underlie traditional marriage, then, of course, lawmakers could rationally choose to legalize same-sex marriage; but if not, that choice would be arbitrary and suspect. Moreover, if same-sex unions do not contribute to the essential social purposes of traditional marriage, a state that confers the legal status of marriage upon same-sex unions commits fraud when it presents a false image of same-sex unions as comparable to traditional marriage. …

The Costs of Privacy

Abstract: Privacy is both an individual and a social good Still, the no-free-lunch principle holds true Legislating privacy comes at a cost: more notices and forms, higher prices, fewer free services, less convenience, and, often, less security More broadly, if less tangibly, laws regulating privacy chill the creation of beneficial collective goods and erode social values Legislated privacy is burdensome for individuals and a dicey proposition for society at large Information flows in subtle and nuanced ways, and well-intentioned regulations can easily go awry After all, enforcing privacy restricts the free flow of information Putting First Amendment implications aside, limiting the communication and use of personal information strikes at the heart of the New Economy, known formerly as "the Information Revolution" Many of the privacy laws proposed or enacted to date have been overbroad, inefficient, bureaucratic, and inconsistent A review of the numerous hidden issues associated with typical elements of "fair information practices"--notice, consent, access, and third-party transfer--reveals the difficulty of translating these general notions into sensible policy I argue not against privacy but in favor of striking a reasoned balance between privacy and other countervailing interests; not against regulation but in favor of carefully tailored regulations to address specific problems at minimal cost I THE INDIVIDUAL, COLLECTIVE, AND SOCIAL COSTS OF PRIVACY REGULATION Most people want to know things about others but simultaneously want to block others from knowing personal information about them The desire to exercise complete control over one's personal information is understandable as a means of maintaining a zone of privacy and reducing the possibility that information will be misused But to what degree should we incorporate such preferences into actual regulations? More important, what would we lose--individually, collectively, and socially--from legislating broadly in this arena? The question cannot be answered by a blithe invocation of privacy rights We have no inalienable right to keep others from talking about us You have no legal right to prevent your local baker from telling an assistant that you like cinnamon rolls Nor do you have a legal right to demand to see if you are on your local florist's list of good customers Leaping to assertions of nonnegotiable rights unfortunately tends to preempt reasoned discussion of the costs and benefits of regulatory action (1) The alternative--tallying the costs and benefits of new information regulations--would seem uncontroversial Yet a cost-benefit perspective is notably absent from the contemporary debates over information privacy For example, the Federal Trade Commission omitted such a review before issuing its May 2000 Privacy Report calling for privacy legislation (2) As Commissioner Orson Swindle noted in dissent: [T]he Privacy Report fails to pose and to answer basic questions that all regulators and lawmakers should consider before embarking on extensive regulation that could severely stifle the New Economy Shockingly, there is absolutely no consideration of the costs and benefits of regulation; nor the effects on competition and consumer choice; nor the experience to date with government regulation of privacy; nor constitutional implications and concerns; nor how this vague and vast mandate will be enforced (3) The following sections undertake a cost-benefit analysis of regulating the use of personal information in the New Economy A Individual Costs The costs to individual consumers of regulating the use of personal information are relatively clear (4) Such regulation would likely increase both direct and indirect costs to the individual consumer, reduce consumer choice, and inhibit the growing trend toward personalization and tailoring of goods and services …

Freedom of Speech and True Threats

Abstract: I. INTRODUCTION Consider the following scenarios: You are a physician at a local Planned Parenthood clinic. As part of your job you perform abortions. There have been protests outside the clinic and you have heard about the murders of several doctors around the country who were killed because they performed abortions. One day a colleague calls you and tells you that an anti-abortion group has put up a website which lists the names and home addresses of doctors who perform abortions. When you look at the website you find your name and address on the list along with strong language saying that you and the others on the list will one day be held accountable for your crimes against humanity. Some of the doctors' names have black lines through them. You recognize these names as people who have been murdered by antiabortion fanatics. Can you successfully sue the creators of the website for threatening you and causing you severe emotional distress, or is this website protected by the First Amendment? (1) Now imagine yourself a woman in college. You hear from a friend that a classmate has posted a story about you on the Internet with a newsgroup called "sex stories." You read the posting and find a gruesome and detailed story of the narrator torturing and raping you. The story culminates in a description of you being doused with kerosene and lit on fire. The posting uses your real name. You are scared and call the police. Should your classmate be convicted of threatening you? (2) You attend a rally in support of a boycott of white-owned stores whose owners will not hire African American employees. You are aware of several violent acts against blacks who have ignored the boycott including the firing of shots into the house of one boycott violator. The leader of the boycott speaks at the rally and warns boycott violators that "their necks will be broken." You had been considering returning to some of the white-owned stores but are frightened by the leader's words. Should the leader of the boycott be arrested for threatening boycott violators or is his speech protected by the First Amendment? (3) As a child you grew up watching the Lone Ranger on television. From this show you picked up the phrase "the silver bullets are coming" which signified to you that the Lone Ranger was on his way to save the day. Many years later, after an acrimonious divorce, you contact an FBI agent with newfound evidence that implicates your ex-father-in-law in an illegal bankruptcy scheme. On your voice-mail message to the FBI agent, rather than just saying you found new evidence, you use your favorite childhood phrase: "the silver bullets are coming!" Shortly after leaving this message, you are arrested for threatening a federal officer. Should you be convicted? (4) As the above situations show, there are many different contexts in which statements might be considered threatening. Many courts and scholars have focused only on one or two situations individually. The problem with not considering a broad spectrum of scenarios is that too often scholars and courts rely on gut judgments rather than on a clear and predictable test. The main purpose of this article is to create a test for determining when a statement is a "true threat" not deserving of First Amendment protection. The law surrounding threats has gained recent attention from commentators after decades of virtual anonymity and unaddressed confusion among the lower courts. The sudden interest in threats has been sparked primarily by the proliferation of widely disseminated Internet speech. (5) In particular, two high-profile cases have shined the spotlight on threats: the so-called Nuremberg File case (6) and the Jake Baker case, (7) both of which I used in the above hypotheticals. Despite this recent interest, the three major hornbooks and treatises on the First Amendment and the Constitution still do not have an index listing for true threats. …

They're Making a Federal Case out of It ... in State Court

Abstract: Because of an anomaly in the federal diversity jurisdiction statute (28 U.S.C. [section] 1332), relatively few interstate class actions can be heard by federal courts. For that reason, county or district state courts that are accountable only to their local electorates handle the vast majority of interstate class actions--cases typically involving thousands of persons nationwide whose claims are purportedly worth millions of dollars, are premised on the varying laws of many states, and raise important national policy issues with interstate commerce ramifications. There is growing recognition that this situation should be corrected by amending [section] 1332 to expand federal diversity jurisdiction over interstate class actions. With that change, such cases could be assigned to federal courts that have national accountability. However, some lawmakers have questioned whether the problems presented by the anomaly are sufficiently grave to warrant congressional action. This article (a) reviews recent debates on this interstate class action jurisdictional issue and (b) examines new empirical data indicating that legislative action on this issue is overdue. I. INTRODUCTION In the last Congress, both houses carefully examined a key judicial policy question: should interstate class actions (that is, large-scale lawsuits with significant interstate commerce implications involving the residents and laws of multiple States) normally be heard by local county courts (that is, by judges typically elected by the residents of the court's locality) or by federal courts (that is, by judges nominated by the President of the United States and confirmed by the duly elected Senators of all fifty states)? These discussions were prompted by introduction of legislation intended to widen the scope of federal diversity jurisdiction over interstate class actions. (1) After several detailed hearings, (2) that legislation passed the House. (3) Senate hearings were also held on the subject, (4) and the Senate Judiciary Committee ultimately endorsed enactment of a bill parallel to that passed by the House. (5) However, the full Senate never considered the measure, and the jurisdiction expansion proposals did not become law. The legislation has been reintroduced in the current session of Congress. (6) II. THE IMPETUS FOR EXPANDING FEDERAL JURISDICTION OVER INTERSTATE CLASS ACTIONS The prospect of expanding federal jurisdiction over class actions has taken center stage because of an anomaly in current law that normally causes interstate class actions filed in state courts to remain there, notwithstanding their inherently federal character. In structuring our judicial system, the Framers established that federal courts would hear cases presenting federal law issues (that is, lawsuits asserting claims based on the Constitution, federal statutes or treaties, or involving the federal government as a party), while leaving to state courts the task of adjudicating local questions arising under state laws. However, the Framers did not stop their line-drawing there. In Article III of the U.S. Constitution, they authorized the extension of federal jurisdiction to one category of cases arising under state law: so-called "diversity" cases, defined as suits "between Citizens of different States." In enacting the Judiciary Act of 1789, (7) Congress exercised that authority, specifically empowering federal courts to hear diversity cases that met certain criteria. Such cases are thus firmly entrenched in the federal jurisdictional landscape. The Framers established the concept of federal diversity jurisdiction out of concern that local biases would render state courts ineffective in adjudicating disputes between in-state plaintiffs and out-of-state defendants. (8) In short, they feared that non-local defendants might be "hometowned." Diversity jurisdiction was designed not only to diminish this risk, but also "to shore up confidence in the judicial system by preventing even the appearance of discrimination in favor of local residents. …

America's new war on terror: thecase for self-defense underinternational law

Abstract: I. INTRODUCTION When representatives of fifty countries assembled in San Francisco in 1945 to draw up the United Nations Charter, modern threats of terrorism such as those posed by the Al Qaeda terrorist network were not yet known. The devastation caused by the September 11 terrorist attacks on the United States would not, however, have been an unfamiliar spectacle to the survivors of World War II. The "inherent" right of self-defense in responding to such violent attacks, a right enshrined in Article 51 of the U.N. Charter and understood by the delegates of all states as a long-established principle of customary international law, was a familiar concept in 1945. (1) It was in accordance with these long-established principles of customary international law and Article 51 that the United States Government reported in a letter to the U.N. Security Council on October 7, 2001, that it had "initiated actions in the exercise of its inherent fight of individual and collective self-defence following the armed attacks that were carried out against the United States on 11 September 2001." (2) The letter went on to note that since the September 11 attacks, the U.S. Government had obtained "clear and compelling information that the al-Qaeda organization, which is supported by the Taliban regime in Afghanistan, had a central role in these attacks" and that United States armed forces had initiated actions "designed to prevent and deter further attacks on the United States" including "measures against al-Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan." (3) The letter of October 7, 2001 was not the first time the United States has notified the U.N. Security Council of actions involving the use of force against other states and has invoked its inherent right of self-defense in response to terrorist attacks. As discussed below, previous uses of force by the United States against terrorist-supporting states have received varying responses from the international community, given rise to some criticism, and raised a number of international legal questions involving the right of guaranteed self-defense under Article 51 of the U.N. Charter. In contrast, the unprecedented response of the international community to the September 11 terrorist attacks on the United States and important factual and legal distinctions between the circumstances surrounding the September 11 attacks and previous attacks giving rise to the use of force by the United States, demonstrate the propriety of the exercise of self-defense in this case under the U.N. Charter and customary international law. II. PREVIOUS USES OF FORCE AGAINST TERRORIST-SUPPORTING STATES BY THE UNITED STATES On April 14, 1986, in response to a bombing of a West German discotheque in which an American serviceman and a Turkish woman were killed and more than 230 other persons injured, the United States launched air strikes against five terrorist-related targets in Libya. Based on intercepted and decoded exchanges between Tripoli and the Libyan embassy in East Berlin, the United States claimed that this attack was one of a continuing series of Libyan state-ordered terrorist attacks. (4) The U.S. Ambassador to the United Nations, Vernon Walters, informed the U.N. Security Council that the United States had acted in self-defense, consistent with Article 51, and that the air strikes were necessary to end Libya's "continued policy of terrorist threats and the use of force, in violation of ... Article 2(4) of the Charter." (5) On June 26, 1993, the United States launched a cruise missile attack on Iraq in response to a foiled assassination attempt against former President Bush. Twenty-three Tomahawk missiles were launched at the Iraqi Intelligence Service in Baghdad, causing a number of civilian deaths and destroying much of the complex. On June 27, 1993, U.S. Ambassador to the United Nations Madeleine Albright reported to the U. …

Congress Goes to Court: The Past, Present, and Future of Legislator Standing

Abstract: The phenomenon of litigation directly between Congress and the President concerning their respective constitutional powers and prerogatives is a recent one. It was unknown through more than a century and three quarters of our jurisprudence.... -- Judge Robert Bork (1) I. INTRODUCTION On March 24, 1999, the United States and other members of the North Atlantic Treaty Organization (NATO) began air strikes against selected targets in Yugoslavia. (2) In an address that evening, President Clinton told the American people that the United States was undertaking these actions "to protect thousands of innocent people in Kosovo from a mounting military offensive, ... to prevent a wider war, to diffuse a powder keg at the heart of Europe that has exploded twice before in this century with catastrophic results ... [a]nd ... to stand united with our allies for peace." (3) Given the recent tragedies in Bosnia, the President contended that the U.S. and its allies were seeking to act decisively before the Milosevic regime could perpetrate "ethnic cleansing" against the ethnic Albanians living in the Province of Kosovo. (4) While the Kosovo conflict may have had support from many members of Congress, it was authorized by neither a declaration of war nor other specific statutory authorization. In a letter provided to Congress on March 26, 1999, the President explained that he had "taken these actions pursuant to [the President's] authority ... as Commander in Chief and Chief Executive." (5) During the course of the conflict, Congress considered several legislative actions related to the conflict (6)--some aimed at authorizing the use of force, others seeking to circumscribe the actions of the President. The only such legislative measure to be adopted by Congress and signed into law was an emergency supplemental appropriations bill. This appropriations bill merely provided additional funds necessary for the continuing prosecution of the conflict and did not "contain a statement that it [was] intended to constitute specific statutory authorization within the meaning of the War Powers Resolution." (7) Consequently, Congress had provided no explicit authorization for President Clinton's actions by the time the military actions ended. In the wake of this congressional inaction, Congressman Tom Campbell of California and other members of the House of Representatives brought suit against President Clinton seeking a declaratory judgment that the President's actions in the Kosovo crisis were unlawful because they violated both the War Powers Clause of the Constitution (8) and applicable provisions of the War Powers Resolution. (9) In Campbell v. Clinton, both the District Court for the District of Columbia (10) and the D.C. Circuit Court of Appeals (11) found that the plaintiffs lacked standing to bring this suit and, thus, never reached the merits of the case. (12) Campbell v. Clinton is but one of the most recent in a long line of cases dealing with the issue of legislator standing. (13) Ever since the Vietnam War, federal legislators have been emboldened to bring suit against the President, other Executive Branch officials and agencies, and even their own House of Congress. (14) Most of these cases have been filed in the D.C. Circuit. (15) The Supreme Court has merely touched on the concept of legislator standing in a very small number of cases, the most recent being Raines v. Byrd, (16) which involved a challenge to the Line Item Veto Act. As a consequence, it has been left to the D.C. Circuit to develop a jurisprudence on legislator standing. By the 1990s, the Circuit had developed at least three distinct approaches to the question, with the last approach predominating for almost twenty years. The Supreme Court's decision in Raines, however, required the D.C. Circuit to reconsider its approaches. Campbell v. Clinton and Chenoweth v. Clinton, (17) both decided shortly after Raines, gave the appellate court the opportunity to begin this reconceptualization. …

Does Technology Require New Law

Abstract: Technological change affects the law in at least three ways: (1) by altering the cost of violating and enforcing existing legal rules; (2) by altering the underlying facts that justify legal rules; and (3) by changing the underlying facts implicitly assumed by the law, making existing legal concepts and categories obsolete, even meaningless. The legal system can choose to ignore such changes. Alternatively, it may selectively alter its rules legislatively or via judicial interpretation. In this essay I first discuss, as an interesting historical example, past technological changes relevant to copyright law and the law's response. I then go on to describe the technological changes that are now occurring or can be expected to occur over the next few decades, the issues they raise for the legal system, and some possible responses. I conclude with a brief discussion of the degree to which such changes can be addressed under current legal rules and the degree to which new rules may be required. I. COPYRIGHT: THE TECHNOLOGIES Prior to the copyright act of 1891, works by British authors were unprotected in the United States. Despite the lack of protection, British authors sometimes made more money from sales in the United States than from sales in Britain. The reason appears to have been that the printing technology of the time, hand set lead type, provided a substantial first-mover advantage. (1) The authorized publisher, having paid his fixed costs from sales during the period after the book had come out but before a pirate copy could be set and printed, could, if necessary, issue a lower priced "fighting edition" designed to prevent the pirate from recovering his fixed cost, making piracy unprofitable. This approach to rewarding writers became ineffectual once technological changes made it possible for a pirate to use photographic methods to free-ride on the typesetting effort of the original publisher, bringing out an unauthorized edition at a lower production cost immediately after the authorized edition appeared. Over the past few decades, improved means of copying--xerography, cassette tapes, VCR's, floppy disks, CDR's--have made it easier to violate copyright law by copying protected intellectual property (IP). Computer networks make it possible to disseminate pirated IP in digital form anonymously, impeding enforcement of copyright law. On the other hand, Internet search engines make it possible to search for a single text string in over a billion locations in a few seconds at negligible cost, easing the detection of some forms of copyright violation. Thus technological change has altered the cost both of violating and of enforcing the law. In some cases--individual pirating of cassette tapes and computer software and off-the-air recording of television programs are obvious examples--technological advances have made pre-existing law unenforceable. We have moved, in the space of a little over a century, from technologies that made it possible to protect writings even without copyright law to technologies that make it impractical to protect programs even with copyright law. (2) Finally, consider the issue of whether computer programs are "writings," and hence legally protectable by copyright. The problem arose because computer programs were a new sort of intellectual property, one that did not clearly fit any of the relevant legal categories. Some courts argued that they were writings. (3) Others argued that at least some programs, such as machine language programs burned into the ROM of a computer, were not writings, because they were not intended to be read by human beings. (4) They were functional parts of a machine--in John Hersey's memorable phrase, "elaborate cams." (5) Courts taking the latter position even found a precedent--a case ruling that player piano rolls, the functional equivalent of computer programs under an earlier technology, were not writings. (6) II. COPYRIGHT: THE LEGAL RESPONSE When technological change affects legal rules, the legal system can respond by trying to deal with the new technology under existing rules, by creating new rules, or by modifying old ones to fit the new technology. …

The Symbiosis of Constitutionalism and Technology

Abstract: Technology does not change the essential problems that constitutionalism (1) seeks to address because these problems are rooted in the enduring nature of man. Technological change, however, can transform man's environment. A different environment, in turn, may require substantially modified forms of constitutionalism even if the underlying objectives remain constant. As the great political philosopher Edmund Burke recognized, the key to sound structures of governance in every age and place is to understand the intersection of man's enduring nature with his particular circumstances. (2) Because technology increasingly shapes the circumstances of modern man, technology is becoming progressively more important to constitutionalism. I. THE ENDURING GOALS OF CONSTITUTIONALISM Before examining how technology changes the forms of constitutionalism, it is essential to understand what in human nature creates the problems constitutionalism must try to solve. It is beyond the scope of this short essay to offer a complete description of the enduring goals of constitutionalism in light of the realities of human nature, but here is a thumbnail sketch. Humans, like many other animals that live in groups, have two modes of gaining resources, both backed by a set of instincts. (3) One mode is exchange, by which humans provide goods and services in return for other goods and services. The other is hierarchy, by which humans gain goods and services based on their position and status in the social order. If exchange is the prevalent mode of acquiring resources in society, wealth increases because individuals gain incentives to create what others want. (4) If hierarchy is the prevalent mode of acquisition, wealth dissipates because individuals are afraid to create what others can take by virtue of their position in the social hierarchy. The latter mode also breeds conflict, because individuals gain incentives to fight for a better position in the pecking order. (5) In a world shaped by political hierarchy, it is natural for each citizen to regard his fellow citizens either as sources of wealth he can seize or as threats to commandeer his property. (6) Thus, the prospect of acquisition through hierarchy seems to sow suspicion and division among all citizens. Accordingly, for moral as well as economic reasons, sound constitutive structures of government aim at promoting exchange and constraining hierarchy. (7) Achieving these goals is more complicated than it might seem, because a government that is powerful enough to protect both the right to exchange and the fruits of exchange is also powerful enough to take away property. In other words, although government can restrain bands of predators from oppressing liberty and taking away property, government itself as a band of humans is a potential predator that needs to be restrained. (8) As St. Augustine wrote, "Justice being taken away, then, what are kingdoms but great robberies?" (9) Constitutionalism depends on technology because the structure of restraints on government most likely to produce justice varies with the technology of the time. This point is illustrated by how the most important original justice-producing structure of the Constitution -- federalism -- was dependent on the technology of its day. II. THE TECHNOLOGICAL UNDERPINNINGS OF FEDERALISM'S CREATION AND DECLINE Federalism -- the concept that encapsulates the doctrine of enumerated powers -- was the Framers' most important contribution to solving the greatest dilemma of political theory. (10) Democracy does not dissolve the dilemma that a government powerful enough to protect liberty and property may be a government powerful enough to threaten liberty and property. (11) An elected ruling coalition may tax and regulate its members to their detriment. Taxation and regulation designed to redistribute opportunities and property from certain groups to others reduces incentives for productive activity and restricts the pursuit of happiness. …

The genome and the law: should increased genetic knowledge change the law?

Abstract: Nature, to be commanded, must be obeyed. -- Francis Bacon (1) The title of this symposium asks: "Does scientific knowledge change the law?" On one level, the answer is obvious: of course, science and technology are always changing the law. (2) As a matter of positive description, law is an integral part of a culture, and as cultural knowledge and beliefs about human nature change, law inevitably changes with them. But the more interesting and important question is the normative one: how should our law change in light of increasing knowledge of the human genome? That will be a central question occupying legal thought in coming decades as progress in genetics changes not only our understanding of human nature, but also our ability to manipulate human nature. Just as legal scholars in prior decades struggled to incorporate the Freudian view of human nature into law, (3) in the coming decades we will struggle to incorporate a genetic and evolutionary conception of human nature into law. Today, I do not purport to have the answers, but I can identify a few important legal questions that the genetic and evolutionary revolution in human understanding presents. I. TWO DIFFERENT VISIONS OF THE MISUSE OF GOVERNMENT POWER The potential for human beings to manipulate their own evolution by applying genetic engineering to the human genome generates a number of frightening hypotheticals: What if parents use new genetic knowledge to design taller, or smarter, or more attractive children? (4) There is also the potential for a new kind of "genetic profiling," in which knowledge of genetic susceptibility is used to exclude persons from exposure to chemicals in the workplace. (5) While these threats are real and must be regulated, they have long been foreseen and discussed in the legal literature. My own view is that governmental reinforcement of prevailing scientific orthodoxy and regulatory impediments to the development of useful technologies is the greater danger. (6) We already see politicians lining up to denounce human cloning and stem cell research. (7) The future is alarming for many people because of its uncertainty. At many points in human history, the politically popular course has been to try to use law to stem the rising tide of progress to preserve "the good old days." While there are indeed legitimate fears that new technologies may be abused, these concerns should be balanced against the benefits these new technologies may bring. We must always be careful that we are not fearfully opposed to something merely because it is new. (8) Our collective ambivalence about growing genetic knowledge is illustrated by two stories that appeared in the same issue of USA Today on February 13, 2001. On the front page of the Money section, the headline was "Investors Bet on Biotechnology Stocks, Map of Human Genome." (9) In the first section of the newspaper, however, there was a story about the EEOC suing to prevent DNA tests that identify people who are particularly susceptible to carpel tunnel syndrome. (10) We are excited by the promise of genetic technologies, but we also fear they will be used to unfairly discriminate. To date, most of the writing in law about genetic technologies has been about how to manage, control, and prevent misuse of these technologies. That focus is not surprising, because we live in an age of environmentalism, characterized by legal concerns about how to deal with the adverse consequences of past technological revolutions. But as important as managing and controlling the new genetic technologies through law may be, I believe that the major effect of the new knowledge of the human genome on law will be to transform our understanding of human nature. This transformation will then have profound consequences for the law. II. THE GENOME AS AN EVOLUTIONARY RECORD The human genome is a biochemical fossil that records our evolutionary history. …

Fourteenth Amendment unenumerated rights jurisprudence: an essay in response to Stenberg v. Carhart.

Abstract: In one of his last opinions before retiring, Chief Justice Warren Burger acknowledged that the soundness of Roe v. Wade(1) "must be tested by the decisions that purport to follow [it]."(2) Declaring that the Court "should reexamine Roe,"(3) Burger found it astonishing that the Court had rejected a requirement that a second physician be present during the abortion of a viable fetus, given Roe's finding of a compelling governmental interest in the life of a viable fetus. He also objected to the Court's invalidation of informed consent and parental notification regulations. The Chief Justice claimed that that while the Roe Court had clearly rejected the right to abortion on demand, post-Roe decisions had implemented a policy encouraging abortion as a positive good.(4) Thus, while Burger joined Justice Blackmun's majority opinion in Roe,(5) he dissented from Justice Blackmun's majority opinion in Thornburgh v. American College of Obstetricians and Gynecologists.(6) Six years later in Planned Parenthood v. Casey, the Court, sans Burger, was closely divided over the continued soundness of Roe.(7) Four Justices explicitly argued that Roe should be overruled,(8) while two Justices argued that Roe should be reaffirmed and applied in the absolutist manner Burger had found so objectionable.(9) Justices Kennedy, O'Connor, and Souter, who authored the decisive joint opinion, claimed to be reaffirming the essential core of Roe while removing from it, and from the post-Roe decisions, the absolutist elements.(10) The joint opinion purported to accord respect to the relevant state interests, and thus claimed a willingness to uphold abortion regulations so long as the core right of a woman to decide whether or not to abort a non-viable fetus was not violated. In Stenberg v. Carhart,(11) Justice Kennedy played the role of Chief Justice Burger. Kennedy, like Burger before him, complained that the moderate decision he joined was misapplied by the majority to invalidate minimalist abortion regulations. Somehow, the moderate Casey precedent was used to justify the more encompassing Stenberg decision.(12) While Justice Kennedy has not yet called for a reexamination of Roe or Casey, his Stenberg dissent forcefully expressed a sense of betrayal and even moral revulsion regarding the majority's interpretation of Casey. Chief Justice Burger's belief that a precedent must be judged -- and understood -- by the opinions that apply it should be taken seriously. Therefore, it is appropriate to examine why the Roe and Casey doctrines have been expanded to the point where both relevant state interests and traditional rules of constitutional adjudication are now completely submerged. This pattern has not developed randomly, but instead arose from medical, cultural, and psychological factors inherent in the abortion liberty. Particularly because the joint opinion in Casey avoided a reexamination of the abortion liberty by arbitrarily invoking the principle of stare decisis,(13) the Court should engage in a thorough analysis of the nature and structure of abortion liberty in future cases. The Supreme Court's abortion jurisprudence has developed as a part of the broader doctrines of substantive due process and the right of privacy. The question of unenumerated rights posed by these doctrines goes to the heart of the Court's role within our system of government, and can raise troubling issues as to the legitimacy of the Court's decisions. It is one thing for the Court, following the theory of Marbury v. Madison,(14) to invalidate legislation found to be in clear violation of an explicit constitutional command; it is quite another for the Court to claim the authority to invalidate legislation based on rights not mentioned in the Constitution. Unless such unenumerated rights can be firmly grounded in the overall text, structure, history, principles, or jurisprudence of the Constitution, their use to invalidate legislation can appear illegitimate. …

Reaffirming Marriage: A Presidential Priority

Abstract: Marriage is always in the news. Lately, however, it seems to be a hotter topic than usual. Debates rage about the "marriage penalty" in the tax code and whether to reform divorce law. Local school boards ponder how to teach students about marriage. Governors have created marriage commissions, and scholars are giving the subject respectful attention.(1) The full title of a recent book by Linda Waite and Maggie Gallagher says it all: The Case For Marriage: Why Married People are Happier, Healthier, and Better Off Financially.(2) Although marriage is primarily regulated by the states, it is hardly absent from federal law. Marriage has been the subject of a number of important decisions by the U.S. Supreme Court.(3) There are 1,049 federal statutes and many corresponding regulations relating to marriage, ranging from Social Security and taxes to education and immigration.(4) In 1996 Congress passed the Defense of Marriage Act, which addressed federal law and the Full Faith and Credit Clause.(5) By setting legislative, regulatory and funding priorities for his Administration, and taking advantage of the ever-present "bully pulpit," President Bush can certainly do much to promote marriage.(6) Amid these positive developments and opportunities, however, there is a growing cloud on the horizon. Litigators and activist judges are attempting to redefine the meaning of marriage. Their effort is gathering steam, and led to skirmishes in the 2000 Presidential campaign. Both the vice-presidential debate(7) and the second presidential debate(8) included questions about "same-sex marriage" and "civil unions." Vice-President Gore also addressed the issue on MTV, strongly supporting equal treatment for what he called "civic unions."(9) In a follow-up to these exchanges, the Associated Press asked both candidates, "What federal legal rights, if any, should be extended to civic unions between gay partners?" In response, each issued an official statement.(10) President Bush's Administration will be faced not only with opportunities to promote marriage, but also the need to reaffirm what marriage really is. The issue cannot be dodged. The only question is whether the next President will provide the leadership the American people need on this issue before it is decided by somebody else. While many other issues related to marriage are extremely important, this Article will focus on the question of definition. In Part I we describe the campaign to redefine marriage through the courts using both the "front door" of same-sex "marriage" and the "back door" of "civil unions."(11) We also describe responses to that campaign on the state and federal level. In Part II we look at the consequences of redefining marriage for states, self-government, and marriage. In Part III we offer an agenda that the Bush Administration might undertake in order to reaffirm marriage. This multi-faceted agenda includes federal, federal-state, and international dimensions. I. THE CAMPAIGN TO REDEFINE MARRIAGE Groups of litigators and activists are attempting to redefine marriage through the courts.(12) In this way they hope to mandate the legalization of same-sex "marriage" or its equivalent without having to put the question squarely before the American people.(13) Difficult as it may be to believe, America is on the verge of legalizing same-sex "marriage" by way of a court-ordered redefinition of marriage analogous to Roe v. Wade.(14) So far, there have been a number of attempts to remove this vital issue from the people and have it decided in the courts. In past decades these attempts were unsuccessful.(15) In the past decade the real "action" has been in Hawaii, Alaska, and Vermont. A. The Front Lines: Hawaii, Alaska, and Vermont The same-sex "marriage" debate will always be associated with Hawaii, because it was there that the effort to redefine marriage through the courts almost succeeded. …

Advice to the Next Conservative President of the United States

Abstract: I am honored to be invited to submit this Article offering my advice to the next President of the United States and to discuss what I have learned from conservative governance in the White House. I approach this topic both as a former member of the Reagan and first Bush Administrations(1) and as a Northwestern law professor who teaches constitutional law. My experience, my academic writing, and my teaching all have been focused on the Presidency and on the role of the federal courts.(2) I therefore want to discuss five lessons we might learn from the Reagan-Bush years about conservative governance in the White House and five additional lessons we might learn from those years about the federal courts. Many of the points I will discuss are not wholly new, but novelty is something that I think the modern world greatly over-rates. My advice is directed to the next conservative President of the United States because conservative governance is the subject I know best from personal experience and academic reflection. I am absolutely delighted that the recipient of my advice is President George W. Bush, whose candidacy I signed on to support as an advisor in May, 1999. First, the twelve year experience of the Reagan and Bush Administrations showed us the tremendous importance of public speeches that laid out a clear agenda in bold primary colors and not in pale pastels. Some of Ronald Reagan's greatest successes as President came from his ability to use public speeches to change the agenda and alter the direction of our national political life.(3) President Reagan did this by taking bold and principled positions, by explaining his positions in a clear and understandable way, and by speaking over the heads of the hostile media directly to the American people in a way the people could understand. Reagan's first Inaugural Address, his speech at the Berlin Wall, and his speech at the beaches of Normandy are but a few of the many powerful vignettes we all now carry with us. Reagan's speeches as President built on his speeches as a candidate for the Presidency and on the ideas to which he was committed. He was as consistent in his themes as he was clear in his choice of words. Reagan's consistency and clarity, which was his hallmark, allowed him to rally the members of his Administration, the Republican Party, and ultimately the country itself to the causes of anti-communism and of limited government. One of the Presidency's greatest powers is that it offers "a Bully Pulpit" to those can use it. The first President Bush unfortunately was not able to claim and harness the power of the Bully Pulpit. This played a significant role in his loss of control over the policy-making agenda and ultimately in his loss of the 1992 election. Conservatives governing from the executive branch have a special need to be able to reach over the heads of the media to rally their parties and the country itself. This can only be done by consistently, clearly, patiently, and cheerfully painting a conservative agenda in bold colors day after day. A second lesson of the Reagan-Bush presidencies is the great importance of the first two years of any Administration. The modern Presidency--for better or worse--is something of a lightning rod. Presidents have little constitutional power in peacetime, and they can advance a domestic agenda only with support in Congress. For decades, presidents like Reagan have had the most support in Congress in the first two years of their term and have watched it dwindle with every subsequent election. While Reagan did not lose the 1982 midterm elections as badly as Clinton lost the 1994 midterm elections, he did nonetheless accomplish much less in the last six years of his term. Since 1934, every first mid-term election has turned out the President's opponents in higher numbers relative to his supporters than had occurred two years earlier. The first two years are riot only relevant to the President's support in the House of Representatives and the Senate, but also to his levels of support in state-houses across the country. …

Religion, the Public Square, and the Presidency

Abstract: I. INTRODUCTION In addressing what advice on issues of religious liberty a practitioner in the religious liberty field might give to the new President, it almost seems rude to dwell on another branch of government. It would seem more appropriate that advice to the Chief Executive on furthering religious liberty focus on the executive branch, entailing questions such as those which faced the Clinton Administration: whether military chaplains are free to preach about partial-birth abortion,(1) whether to retain a display about Native American worship in a national park visitor's center despite an Establishment Clause challenge,(2) or how to deal with the suppression of student religious speech in public schools.(3) Another proper area of focus would be the President's legislative opportunities, such as whether to support school vouchers and charitable choice as measures that enhance the freedom and equality of religious people and institutions, or to adhere to the view that they are threats to religious freedom. Try as I might to focus on these issues, one clause of Article II, Section 2 refuses to be ignored: "[A]nd he shall nominate, and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by law." Two powers within this clause-the power to appoint Justices of the Supreme Court and the power to appoint other federal judges (hidden in the catch-all "other Officers" language) -- have arguably become the primary engine of the federal government's policy on religious liberty issues. Things were not supposed to be so. The Framers certainly intended the Constitution to be the supreme law of the land and the legislative will subservient to it. As Hamilton wrote, "[T]he constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."(4) But the Framers nevertheless conceived of the judiciary as "the least dangerous" branch.(5) Madison observed in Federalist No. 68 that because of the specificity with which the judiciary's role is defined in the Constitution "projects of usurpation ... would immediately betray and defeat themselves"(6) Hamilton was even more optimistic. He remarked in Federalist No. 81 that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is, in reality, a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system.(7) Experience has not been kind to Madison and Hamilton's prognostications. As Abraham Lincoln observed in response to the Dred Scott decision: "[T]he candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court ... the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."(8) Nor have the Federalists' predictions held true in the twentieth century, particularly on the issue of religion in public life. Since the incorporation of the Establishment Clause in Everson v. Board of Education,(9) it has been the federal courts that have largely determined national, state, and local policy on the proper role of religion in public life. The issues of whether prayers(10) or moments of silence(11) are appropriate in school, what types of holiday decorations will be seen in towns each December,(12) and whether disadvantaged children attending parochial schools will receive the same special educational services public school children receive(13) are but a sampling of areas in which the Supreme Court has co-opted the field. …

Technology as Security

Abstract: I. INTRODUCTION It has become fashionable to fret about whether developments in technology have outpaced the law. To continue the metaphor, athletic Internet entrepreneurs are racing against stately, but plodding, courts and legislatures. The University of Michigan Law School has sponsored a symposium subtitled "Is Technology Outpacing the Law?" (1) Former Attorney General Janet Reno claimed in June 2000 that the Microsoft antitrust case proved to be a "strong reaffirmation" of antitrust law's ability to keep up with technology. (2) A commentator has described the 1998 Digital Millennium Copyright Act as "only about keeping up with technology." (3) But truthfully, technology has begun to supplant law, and at an accelerated pace. (4) Contrary to conventional wisdom, this may be a welcome and inevitable development. Instead of protecting rights such as privacy, free speech, and copyright through legal means, more people are turning to technological protection methods. To guarantee liberty, mechanisms such as public key encryption and anonymity-providing "dc-nets" (5) rely on the equations of mathematics and not the whims of courts and legislatures. Congress may, for instance, allow police to wiretap more easily or reduce the requirements for warrants. Judges may rule works like James Joyce's Ulysses to be obscene, then reverse positions a generation later. (6) But the laws of mathematics do not vary based on the whims of government officials or shifts in public opinion. This view is somewhat controversial. Freedom fighters using encryption to conceal their communications from Burma's brutal military junta may applaud technology's rule, but the FBI warns that the widespread use of encryption allows terrorists, drug smugglers, and child pornographers to evade law enforcement. (7) Anonymous publishing tools may cheer whistleblowers, yet provide little legal recourse when malicious lies are spread anonymously. Although copyright protection mechanisms may hinder piracy and reduce costs to consumers, librarians and civil libertarians argue that fair use rights will be lost in the process. (8) A loosely organized group of essayists, activists, and programmers called the "cypherpunks" has been a fierce champion of a technology-over-law approach. Using a mailing list (9) and a smattering of physical meetings around the globe, they have developed technological tools to protect privacy and free expression in areas where they feel the law does not. (10) A 1988 essay written by "cypherpunks" co-founder Tim May explains it well: Computer technology is on the verge of providing the ability for individuals and groups to communicate and interact with each other in a totally anonymous manner. These developments will alter completely the nature of government regulation, the ability to tax and control economic interactions, the ability to keep information secret, and will even alter the nature of trust and reputation. (11) As it turns out, May's prediction was premature. Technology has not forced governments to rethink their tax systems, and government regulation has not changed dramatically in the last ten years. But, May was one of the first to point out the powerful possibilities of protecting rights through technologies such as encryption and anonymity. (12) II. COPYRIGHT Consider copy protection technology. Content owners, distributors, and publishers fret about how relatively easy online distribution methods will encourage copyright infringement and reduce sales. (13) They have reason to worry. As bandwidth increases and distribution technology improves, the cost of reproducing intellectual property could begin to edge toward zero. Everyone likes getting something for free, and piracy has always nibbled at the edges of publishers' and distributors' profits. But it is far easier and cheaper to copy an MP3 file than to photocopy a Tom Clancy novel, and digital copies--unlike their analog counterparts--do not diminish in value. …

Everything I Need to Know about Presidents I Learned from Dr. Seuss

Abstract: Oaths are out of fashion these days. This is an era in which it is widely considered unreasonable to expect the President of the United States to obey basic principles of law and justice, much less to honor something as abstract as an oath. Perjury -- the violation of a legally binding oath -- is publicly defended as proof of the offender's humanity rather than his criminality. And one should not even mention in polite company something as gauche as honoring an oath of marriage. Those pesky vows of marital fidelity were, after all, just words. The next President of the United States will have to speak some ,words before he can assume the office of the presidency. Indeed, the precise words to be spoken are inscribed in the text of the Constitution (as they are not for any other office)(1): "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."(2) Of course, the oath clauses of the Constitution have all but disappeared from the modern scene.(3) Nonetheless, there was a time when keeping promises was something important rather than an occasionally useful device for acquiring and retaining power.(4) As anyone who is familiar with the story of a certain faithful elephant can attest, the older view was right. Keeping your word is good.(5) Breaking your word is bad.(6) This is especially true when your word is formalized through a mechanism, such as an oath, that is specifically designed to emphasize the promise with "I really mean it!" Moreover, if a person acquires property by making a promise that he has no intention of honoring, he commits fraud -- in the eyes of reason and justice if not always in the eyes of the law. The Constitution requires anyone who takes the office of the presidency to swear a very specific oath as a condition of receiving the benefits of that office. Taking those benefits (including the substantial salary and pension that goes with the office) while disregarding the oath is fraud by any plausible understanding of the term. Thus, my advice to the new President is the same advice that I would give to any candidate or officeholder, any witness, or any party to a marriage: Do not take an oath that you are not prepared to keep. The President therefore must have a very clear picture of what the presidential oath of office requires. What does it mean to preserve, protect, and defend the Constitution"? Against what threats must the Constitution be preserved, protected, and defended? Assuming that the President conscientiously follows his oath and therefore poses no threat himself, there are three principal threats to the Constitution that the President must address: Congress, the federal courts, and the States.(7) Because the President has no unilateral power directly to control state officials, I will discuss only the President's obligations with respect to Congress and the federal courts. In both cases the President's constitutional duty is clear.(8) I. DEALING WITH CONGRESS Congress's primary function is to make laws.(9) The Constitution assigns the President four principal responsibilities in connection with this lawmaking function: He must recommend to Congress "such Measures as he shall judge necessary and expedient";(10) he must sign or veto congressional enactments;(11) he must employ "[t]he executive Power"(12) to carry laws into effect;(13) and he must nominate or appoint officers to aid him in these tasks.(14) The President has other responsibilities as well, such as the power to convene or adjourn Congress on occasion(15) and the duty to commission officers,(16) but the initial four are the most important contexts in which the President faces constitutional issues when dealing with Congress. The President's responsibilities under the Recommendation Clause are clear: recommend to Congress the enactment of measures that are constitutional, and recommend the repeal of existing laws that are unconstitutional. …

Advice to the New President on the FCC and Communications Policy

Abstract: I. INTRODUCTION The Telecommunications Act of 1996 ("1996 Act")(1) promised the first major revision of communications policy since the passage of the Communications Act of 1934 ("Communications Act").(2) In passing the 1996 Act, Congress intended to "promote competition and reduce regulation."(3) Congress believed that the 1996 Act would "secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies."(4) President Clinton characterized the 1996 Act as "revolutionary legislation" aimed at bringing the future to the doorsteps of the American people.(5) Vice President Al Gore claimed to be championing the Clinton Administration's efforts to promote the goals of private investment, competition, and flexible regulation.(6) One year after the passage of the 1996 Act, former Federal Communications Commission ("FCC" or "Commission") Chairman Reed Hundt asked, "Is it working?"(7) The answer was clearly no. Unfortunately, and largely due to actions of the Clinton FCC, the regulatory framework created by the 1996 Act has failed to produce many of the benefits promised by its supporters.(8) The Act has instead provided an excuse for the FCC to expand its already swollen bureaucracy.(9) Although some in Washington "paradoxically and mischievously" refer to the current state of affairs as "deregulation," the FCC continues to regulate emerging communications technologies and to re-regulate previously deregulated communications industries.(10) The 1996 Act was supposed to end "outdated, invasive regulation," which should, according to elementary common sense principles, require a smaller budget.(11) Nonetheless, on the third anniversary of the 1996 Act, President Clinton submitted a budget to Congress asking for a 20% hike in the FCC's budget for fiscal year 2000.(12) For fiscal year 2001, the FCC requested and received an additional 11.5% increase, bringing the agency's current allocation to a staggering $237,188,000.(13) All the while, the FCC has kept on its books hundreds of regulations which have long outlived their usefulness and has refused to heed the command of Congress to deregulate American communications markets.(14) Given the rapid pace of change in the telecommunications industry, the new Administration should work with Congress and the FCC to make the Commission do less, faster. Only then will the American public obtain the benefits of the competitive, innovative telecommunications industry that the 1996 Act envisioned. To accomplish these goals, the new President should take the following "top ten" steps. He should ensure that: 1. the FCC stops using its merger reviews to extract conditions it could not otherwise impose; 2. the FCC exercises its statutory power to forbear from regulation more often; 3. the FCC adopts a customer service mentality; 4. the growth of the FCC as an administrative agency is halted; 5. the FCC ends its regulation of mass media content; 6. the FCC modifies its ownership restrictions; 7. the FCC keeps it hands off the Internet; 8. the FCC eliminates access charges and reforms its regulatory fee structure; 9. the FCC reforms its spectrum allocation policies to increase the use of auctions and allow for spectrum flexibility; and 10. the FCC gives more respect to states' rights. II. DISCUSSION A. Limit FCC Merger Review and Attendant Conditions Since the passage of the 1996 Act, the FCC has become far more heavy-handed in its review of mergers between telecommunications companies.(15) Given the FCC's increased focus on communications mergers, many will be surprised to learn that the 1996 Act did not increase the FCC's merger review authority. Indeed, no provision of the Communications Act expressly authorizes most of the Commission's current merger review activities. …

Not Because They Are Brown, but Because of Ea

Abstract: I. INTRODUCTION During its 1999 Term the Supreme Court heard a case directly involving the status of Native Hawaiians for the first time in its history.(2) At issue was participation in the election of the board of trustees of the Office of Hawaiian Affairs (OHA), an agency that administers programs benefiting two subclasses of Hawaiian citizenry, "Hawaiians" and "Native Hawaiians."(3) The Hawaiian State Constitution limited the right to vote for the nine OHA trustees and the right to run in the statewide election for the position of OHA trustee to those two subclasses.(4) The Court held that because the definitions of these subclasses were racial rather than political in nature, the voting restrictions violated the Fifteenth Amendment. At first glance it appears that the rights of yet another group of indigenous inhabitants of this nation were trampled upon. A closer inspection of the case reveals, however, that the Native Hawaiians were instead victims of a constitutionally faulty remedial infrastructure that was based on their race rather than their inherent sovereignty as indigenous people. The crux of the majority opinion was that the voting restrictions were both racially defined and imposed by the State, and thus were constitutionally impermissible.(5) Although the majority opinion does not elucidate acceptable alternatives, it implies that had the voting restrictions been based on membership in a Native Hawaiian political entity, and had that entity, rather than the State of Hawaii, been the administrator of the resources controlled by OHA, it is likely that the outcome would have been favorable to the Native Hawaiians. The constitutional defect identified by the majority was not an attempt to provide a measure of self-determination for Native Hawaiians but rather a faulty infrastructure that attempted to promote such self-determination as a function of race under the auspices of the State. How this faulty infrastructure arose is in large part a function of history. Writing in dissent, Justice Stevens correctly admonished the majority that a proper decision required an understanding of the history of Native Hawaiians.(6) As Professor Frickey notes, "in federal Indian law, lawyerly analysis that is devoid of broader historical and theoretical perspectives leads to misleading conclusions about the determinacy and substance of what the law `is' [or `was'] at any given moment."(7) Part II of this Note therefore reviews the history of Native Hawaiians in the broader context of the history of federal Indian law,(8) focusing on the vacillating congressional policies regarding Indians and how those policies almost always treated Indian tribes as political entities rather than ethnic communities. Part III reviews and analyzes the procedural history of the Rice case and its resolution by the Supreme Court. Part IV concludes with the argument that constitutionally permissible alternative methodologies exist for accomplishing the same objective of self-determination for Native Hawaiians. II. CONTEXTUAL PERSPECTIVE ON RELEVANT HISTORY Although Justice Kennedy allocates more than half of the majority opinion to the history of Hawaii,(9) he does not place that history in the broader context of the history of federal Indian law. Much of the argument from both sides centers on whether Native Hawaiians can legally be treated as Indians by way of the jurisprudence that identifies Indian status as a political rather than a racial classification,(10) It is thus necessary to understand the legal history of Indian policy. Numerous parallels exist between the treatment of Native Hawaiians on the islands and the treatment of Indians on the mainland. In several instances, however, the timing of major developments in Hawaiian history worked to the detriment of Native Hawaiians because of the character of Indian policy at the time. Like most renditions of the history of Indian law, this Part is organized according to the different eras of federal Indian law and policy. …