Showing papers in "Notre Dame Law Review in 2004"

Protective Parity and the Laws of War

Abstract: Traditionally, protective schemes in the law of war are tightly coupled to rigid status categories. The contours of these status categories (and the content of corresponding protective schemes) reflect the dual normative commitments of this body of law: military necessity and humanitarianism. Formal protection varies along a number of axes (including combatant status, nationality, territory, and the character of the conflict) because it is thought that these factors roughly track the vulnerability of and the security challenges posed by specific status groups. In early law of war treaties, specific status categories are defined in terms that encourage protection-seeking states (and at times individuals) to orient their behavior in ways that promote the objectives of humanitarian law. Protection, in these treaties, is a carrot for rule-regarding behavior - harsh, summary treatment at the hands of the enemy, the stick. Such an approach, by design, includes coverage gaps. Beginning with the 1949 Geneva Conventions, this understanding of status has been in decline. Over the last half century, protective schemes have converged and coverage gaps have closed. From the human rights perspective, these developments are all to the good. The humanization of humanitarian law reflects the progressive trajectory of international law in which universal human rights trump parochial state interests. From the traditionalist perspective, the law of war has lost its compass. Protection of unlawful combatants (1) undermines the humanitarian ambitions of the law of war by compromising the protection of innocent civilians; and (2) undermines political and institutional support for the law of war by imposing on states obligations that are inconsistent with various security imperatives. Both views are flawed. Protection should, contra the human rights view, accommodate the realities of the battlefield. On the other hand, humane treatment of the enemy, irrespective of pre-capture conduct, furthers the military objectives of the capturing state. My argument is that humanitarian protection in time of war should not vary by detainee status category - what I will call protective parity. The paper has a descriptive and a prescriptive dimension. Through an analysis of the legal situation of unlawful combatants, I illustrate that (1) protective schemes are converging; and (2) although the protective significance of POW status is declining, there are some persistent gaps in coverage. The unique protective significance of POW status (and the claims that justify this extra increment of protection) suggests that POWs are systematically over-protected (even if only to a modest extent) and unlawful combatants are systematically under-protected. To make this case, I offer a cluster of offensive claims and one defensive claim. On the offensive side, I argue that various claims for expanding or contracting humanitarian protection do not track status categories. In this way, the claims that undergird these ostensibly competing schools of thought support protective parity. Consider the following related points. If protective schemes compromise legitimate security interests (think of the policy arguments advanced by the United States to justify its treatment of the detainees in Cuba), then some status categories (e.g., POWs) are systematically over-protected. That is, these security-based claims, if valid, would apply irrespective of whether the detainees were properly classified as POWs or not. If humane treatment of the enemy increases battlefield effectiveness (because poor treatment discourages surrender, encourages reprisals, decreases troop morale, and decreases political support for the war effort), then some status categories (e.g., unlawful combatants) are systematically under-protected. On the defensive side, I argue that protective parity is consistent with the principle of distinction. Even if irregularization undermines distinction, the question is how best to encourage fighters to distinguish themselves from the civilian population. I maintain that protective status categories are an inefficient way to incentivize individual combatants because these categories necessarily trade on collective considerations - such as the organizational characteristics of the fighting force. The rule of distinction would be better served by an individualized war crimes approach that accorded all fighters substantial humanitarian protection and punished (in accord with basic requirements of due process) individual bad actors.

Classical Religious Perpsectives of Adoption Law

Abstract: Ancient1 and modern-day adoption statutes balance the interests of children, birth parents, adoptive parents, states, and countries. In the United States, adoption statutes were first passed in 1851,2 and earnestly revisited and revised following the “Baby Jessica” case in the early 1990s3 to reflect the need to obtain nonidentifying health information to be shared with prospective adoptive parents.4 The guiding legal principle of the

The Unitary Executive During the Third Half-Century, 1889-1945

Abstract: Recent Supreme Court decisions and the impeachment of President Clinton has reinvigorated the debate over Congress's authority to employ devices such as special counsels and independent agencies to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitution rejected the executive by committee employed by the Articles of the Confederation in favor of a unitary executive, in which all administrative authority is centralized in the President. More recently, the debate has begun to turn towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features of the constitutional landscape as to preempt arguments in favor of the unitary executive. Others, led by Bruce Ackerman, have suggested that the New Deal represented a constitutional moment that ratified major changes in the distribution of power within the federal government. To date, however, a complete assessment of the historical record has yet to appear. This Article is part of a larger project that offers a comprehensive chronicle that places the battles between the President and Congress over control of the administration of federal law in historical perspective. It reviews the period between 1889 and 1945, beginning with the Administration of Benjamin Harrison, ending with the Administration of Franklin Delano Roosevelt, and paying particular attention to FDR's failed attempt to reorganized the executive branch. The record reveals that these Presidents during this period consistently defended the unitariness of the executive branch to a degree sufficient to keep the issue from being foreclosed by history. In fact, the episodes discussed provide eloquent illustrations of the legal and normative arguments supporting the unitary executive.

Procedure, Politics and Power: The Role of Congress

Abstract: It is a privilege and a source of great personal satisfaction to participate in a festschrift honoring David Shapiro, whose influence on the fields of federal courts and civil procedure—through his scholarship, teaching, and colleagueship—has been pronounced, enduring, and thoroughly constructive. Equipped with a penetrating intelligence and a wry sense of humor, David is a brilliant scholar, a thoughtful and subtle critic, a generous colleague, and a loyal friend. David seems always to bring out the best in those around him, encouraging the search for truth, gently deflating pretension, and, by force of luminous example, demonstrating that the path to progress lies neither in raw power, intellectual or political, nor in situational expedience, but rather in hard work, in good faith, for the common weal. His is the voice of sweet reason. David’s quiet and courageous example in confronting and mastering health problems has inspired those who regard him as a mentor, as I do, reminding us how fortunate we are to hear that voice and how important it is to listen. It may seem odd to dedicate an article about procedure, politics and

The Proper Scope of the Police Power

Abstract: When it comes to identifying the powers of the federal government, we know where to look. Article I of the Constitution provides a list. When it comes to the power of states over their people, the issue has always been shrouded in doubt. For, though the Constitution provides a list of specific limitations on state powers along with an enumeration of certain rights, it appears to be silent on the question of the proper scope of what is called the police power of states. In this article, I will contend that the Constitution is not really silent on the proper scope of state powers; that the original meaning of what the Constitution says requires that state powers over their citizens have fairly easy to identify limits - though as with most constitutional provisions, applying these limits to particular cases requires judgment and is not a matter of strict deductive logic. This account will require me to briefly review the method of interpretation I advocate - original meaning originalism - and its limits. These limits require that interpretation of original meaning be implemented by means of constitutional constructions that enhance the legitimacy of the Constitution without violating the original meaning established by interpretation. I then examine the original meaning of the provision that provides the limit on state power: the Fourteenth Amendment. Finally I offer the construction of the scope of the police power of states that is consistent with that limitation: the police power of states includes the power to prohibit wrongful and to regulate rightful conduct of individuals.

A Typology of Aggregate Settlements

Abstract: Large-scale multiparty litigation often settles in clusters rather than one claim at a time. With or without the judicial imprimatur of class certification - indeed, with or without formal judicial aggregation of any sort - lawyers negotiate settlements of sizable portfolios of claims. Such settlements, in which multiple plaintiffs' claims against a common defendant are resolved together, are what lawyers variously call aggregate settlements, group settlements, block settlements, or similar terms that emphasize the collectiveness of the deals. The literature on aggregate settlements, however, is lacking any clear definition or articulation of what makes such settlements meaningfully collective. Group settlements in multiparty litigation vary significantly, and they vary in ways that make it difficult to determine whether certain deals ought to be understood as collective settlements or simply as groups of individual settlements bundled together. This article develops a typology of aggregate settlements. By defining settlements in terms of their essential attributes, it is possible to understand and describe multiplaintiff settlements with greater precision, and to develop a sounder approach to applying the special ethical duties that attend aggregate settlements. Under the aggregate settlement rule, some version of which is in effect in every state, a lawyer may not make an aggregate settlement unless the lawyer obtains each client's informed consent after disclosing the full scope of the deal. The rule does not define "aggregate settlement." Cases, ethics opinions, and other authorities do not define the term with any precision, but some of them contain statements to the effect that an aggregate settlement is one in which a defendant pays an amount to settle an entire group of claims. They describe, in other words, a lump sum package deal, which is the most obvious form of aggregate settlement, but they do not consider what makes such a deal aggregate. Closer inspection reveals that a lump sum package deal has two key attributes, each of which independently would suffice to make the deal collective. The attributes that combine to form such a deal are collective allocation and collective conditionality. Allocation refers to how settlement amounts are determined and allocated, the method for determining who gets how much. Conditionality refers to what conditions must be met for the settlement to stick, particularly the extent to which settlements are voidable by defendants for failure to obtain releases from all the plaintiffs. When authorities depict a deal in which the defendant pays an amount of money in exchange for releases of an entire group of claims, the allocation can be described as lump sum, and the conditionality can be described as all-or-nothing. When the lump sum package deal is understood as a combination of allocation and conditionality attributes, and when that understanding is combined with an awareness of the settlement structures actually in use in multiparty litigation, it becomes evident that each of these attributes appears in forms that range from purely collective to purely independent. Allocation and conditionality can be spread along two axes to form a grid of settlement structures. The resulting typology, by disaggregating the attributes of collective settlements, helps define which settlement structures should trigger the disclosure and informed consent requirements of the ethics rule, and offers an approach to describing both non-class aggregate settlements and class action settlements with greater precision.

The Constitution as Suicide Pact

Abstract: Michael Paulsen has written a wonderful, creative article. In his characteristically engaging manner, he argues that we ought to employ a "meta-rule of construction" and consistently construe the Constitution to avoid "constitutional implosion." Where such "saving" constructions are impossible, however, the law of self-preservation must take precedence. Priority must "be given to the preservation of the nation whose Constitution it is, for the sake of preserving constitutional government over the long haul, even at the expense of specific constitutional provisions."'Professor Paulsen does not thereby countenance constitutional "violations," at least in his own mind. To engage in regime and constitutional preservation, even at the expense of particular constitutional provisions, is to act consistent with the Constitution rather than contrary to it. According to Professor Paulsen, the Constitution contains a general self-preservation exemption (the rule of necessity) to its seemingly iron-clad prohibitions and rights. Who favors constitutional suicide? More accurately, who favors a constitution that lacks an emergency provision authorizing the President to suspend some or all of its parts? Let me be the first to fall on my sword. Though I count myself as one of the many admirers of Professor Paulsen's work, I do not believe that he has made his case, at least not yet. I question whether the Constitution contains a "metarule of construction" which requires that the "Constitution should be construed, where possible, to avoid constitutionally self-destructive re-suits." Moreover, I doubt that the Constitution grants the President a latent and more powerful authority to sacrifice constitutional provisions in order to preserve and defend the Constitution and nation as a whole. In my view, though the Constitution creates a powerful chief executive, it does not empower the President to suspend the Constitution in order to save it.

Re-Reifying Data

Abstract: There's a war on between those who view digital technology as a reason to expand intellectual property law and those who oppose this expansion. One front in the war is technological: the pro-expansionists enclose their products in restrictive code, which the anti-expansionists circumvent and hack. A second is legislative: the pro-expansionists seek extended copyright duration, favorable changes to contract law, and other new legal entitlements, while the anti-expansionists lobby for the opposite. And a third front is a combination of the first two: it is technolegical. On this battlefield, the pro-expansionists use the law to fortify their technological protections. But here the anti-expansionists merely play defense - resisting, but offering few affirmative technolegical measures of their own. This article gives the anti-expansionists a new technolegical weapon for their arsenal. Using the battle over database rights as a case study, it first explains how the architecture of digital technology, if left unregulated, can obviate legal entitlements in the market for databases and other information goods. It then explores how legal regulation can counteract this effect and ensure that the public ordering of intellectual property law continues to have meaning. Finally, it settles on one regulatory mechanism: requiring information producers to fashion a technologically unfettered (re-reified) version of their goods, which the public then holds hostage against overly restrictive architectural constraints.

The Good, the Bad and the Ugly: Rethinking the Value of Associations

Abstract: The Article seeks a deeper understanding of the role voluntary associations play in society by analyzing the paths by which they mediate between the individual and the collective. Identifying this fundamental mediating function of associations sheds new light on the Supreme Court's handling of various cases involving associations, as it allows us to see the core associational values at stake in a given case and flesh out the individualist-collectivist tensions at play. Viewed in a more holistic light - i.e., engaging the associational interests and values at issue, rather than simply the constitutional doctrine implicated - the resolution of the cases will take on a different gloss, for the disputes are not zero-sum contests between the individual and the association or the association and the state, but rather the association in tension with both. The Article concludes that when any single anchor of the association in relationship (individual versus association versus state) is given unfettered authority to pursue its own interests at the expense of the others, the resulting disparity eviscerates the association's mediating values, thereby threatening to negate the very reasons we seek a vibrant associational life in the first place.

Racial Equality: Old and New Strains and American Indians

Abstract: First, I will set the colonial context for equality that was anchored in a narrow white male model as the principal civic actor. Second, the discussion proceeds to the political status of American Indians, the basis for the nation-to-nation relations that secured in treaties the lands and resources that benefited non-Indians. Third, this Article explores the cultural difference between indigenous and constitutional visions of individual rights and community. Fourth, is a description of the efforts to remake Indians into a race and assimilate their governments into federalism. Fifth, this Article discusses the Santa Clara Pueblo v. Martinez case, which demonstrates the cultural disparity between the individual rights model of the ICRA and the political right of the tribe to self-determination. The conclusion affirms that the retained power of tribal sovereigns for self-governance and self-determination is the most important right for American Indians. Though American Indians are now citizens entitled to equal protection and due process, this individualistic theory is limited in force to protect culturally distinct governments built on values of consensual relations.

Information Famine, Due Process, and the Revised Class Action Rule: When Should Courts Provide a Second Opportunity to Opt Out?

Abstract: In appropriate circumstances, judges overseeing class litigation should exercise their discretion to provide class members a second chance to opt out at the time when settlement terms are known. Such an opportunity comports with the plaintiff's traditional due process right to exert control over her claim and simultaneously recognizes the need to efficiently resolve large numbers of similar claims. Judges should provide a second opt-out opportunity when two factors are present: (1) when class members did not have sufficient information to make an informed choice by the opt-out deadline and (2) when a significant number of the claims would be economically viable in individual litigation. When both of these factors are present, a class member's interest in controlling her claim will normally outweigh the efficiency gains that might be achieved by denying class members a second opportunity to opt out.