Showing papers in "Notre Dame Law Review in 2010"

The Teaching Function of Patents

Abstract: In theory, a patent serves the public good because the disclosure of the invention brings new ideas and technologies to the public and induces inventive activity. But while these roles inherently depend on the ability of the patent to disseminate technical knowledge, the teaching function of patents has received very little attention. Indeed, when the document publishes, it can serve as a form of technical literature. Because patents can, at times, communicate knowledge as well as, or better than, other information sources, patents could become a competitive source of technical information. Presently, however, patents are rarely viewed in this manner. There are several reasons for this, including the lack of a working example requirement and the pervasive use of ambiguous or opaque language. My primary objective is to transform patents into readable teaching documents. Importantly, if patents are to compete with the technical literature, then they must provide the same quality of teaching. For this to happen, two things must occur. First, at least for complex inventions, an applicant must prove, through adequate detail, that the claimed invention has been constructed and works for its intended purpose. Second, applicants must be allowed to draft the document using clear and concise language, without the fear of litigation troubles. To achieve both, I contend that working examples should replace language as the principal measure of claim scope. To implement this idea, I propose a new examination protocol which gives the U.S. Patent Office the ability to request working examples when the disclosure's teaching appears dubious. In exploring criticisms, I argue that, in contrast to the current disclosure framework, which can itself thwart innovation, the proposed regime will produce more technically robust patents, which will make it easier for subsequent inventors to improve upon existing patented technology, promote the diffusion of knowledge across disciplines, and serve as a driver for more creative innovation. INTRODUCTION I. IDENTIFYING THE PROBLEM A. No Experimentation Required! 1. Constructive Reduction to Practice 2. Prophetic Examples B. "Patentese" 1. What Is It? 2. Why Is It Used? 3. Drawbacks II. IMPROVING THE TEACHING FUNCTION OF PATENTS A. Imposing a Working Example Requirement 1. Raising the Standard of Disclosure 2. A New Examination Protocol B. Drawing Support from History C. Potential Benefits 1. It Will Simplify the Enablement Inquiry 2. It Will Yield More Robust Patents 3. It Will Bridge the Disconnect Between Science and Patent Law 4. It Will Make Patents a Competitive Source of Technical Knowledge III. CRITICISMS AND LIMITS OF THE TEACHING FUNCTION A. Conflicting Policy Concerns B. Teaching Whom? C. The Disclosure-Dedication Rule CONCLUSION INTRODUCTION The patent document serves several stated functions. First, it discloses the invention to the public. (1) This disclosure must be sufficiently detailed to enable one of ordinary skill in the art to practice the invention and provide the best way to do so. (2) Second, it includes claims which define the scope of the exclusory right and notify interested members of the public of the activities that will infringe. (3) Third, the document serves as a starting point for patent prosecution, (4) as well as a court's adjudication of patent validity and infringement. (5) Yet patents perform functions which extend beyond the legal sphere. These include, for example, signaling research and development (R&D) strength to customers and competitors (6) and inducing inventive activity. (7) This Article focuses on one function that has received considerably less attention: teaching. The basic idea is that, while the patentee can exclude others from practicing the invention until the patent term expires, the technical information disclosed in the patent document has potential immediate value to the public, (8) which can use the information for any purpose that does not infringe upon the claims. …

Catholic Schools, Urban Neighborhoods, and Education Reform

Abstract: This Article explores the implications of a dramatic shift in the American educational landscape--the rapid disappearance of Catholic schools from urban neighborhoods. Primarily because of their strong track record of educating disadvantaged children, these school closures are a source of significant concern in education policy circles. While we are inclined to agree that Catholic school closures contribute to a broader educational crisis, this Article does not address well-rehearsed debates about educational outcomes. Rather than focusing on the work done inside the schools, we focus on what goes on outside them. Specifically, using three decades of data from the Project on Human Development in Chicago Neighborhoods, we seek to understand what a Catholic school means to an urban neighborhood. Our study suggests Catholic elementary schools are important generators of neighborhood social capital: We find that neighborhood social cohesion decreases and disorder increases following an elementary school closure, even after we control for numerous demographic variables that would tend to predict neighborhood decline and disaggregate the school closure decision from those variables as well. Our study--the first of its kind--contributes in a unique and important way to ongoing debates about both land use and education policy for reasons that we explore in detail in the Article. INTRODUCTION I. THE DISAPPEARING URBAN PARISH SCHOOL A. A World Set Apart B. Race, Suburbanization, and a Changing Church C. The Roots of the School Closure Crisis II. DISORDER, SOCIAL CAPITAL, AND URBAN NEIGHBORHOOD LIVE A. Disorder, Social Capital, and Collective Efficacy B. Disorder and Fear III. CHICAGO'S CATHOLIC SCHOOLS AND THEIR NEIGHBORHOODS: AN EMPIRICAL TEST A. Catholic Schools in Chicago B. Explaining School Closures: Beyond Demographics C. Neighborhood Effects of Catholic School Closings 1. School Closures and Perceived Social Disorder 2. School Closures and Perceived Physical Disorder 3. School Closures and Social Cohesion 4. School Closures and Collective Efficacy IV. SCHOOL CLOSURES, LAND USES, AND SOCIAL CAPITAL A. The Empirical Evidence B. A Catholic School Effect? V. CATHOLIC SCHOOL CLOSURES AND EDUCATION FINANCE DEBATES A. The Geography of Education Reform B. Private Schools and Public Values C. Neighborhood Public Schools, Interdistrict Competition, and "Community-Specific Social Capital" 1. Local Public Schools and Educational Outcomes 2. Local Public Schools and "Community-Specific Social Capital" D. Catholic School Closures, Neighborhood Social Capital, and Education Reform CONCLUSION INTRODUCTION More than 1600 Catholic elementary and secondary schools, most of them located in urban neighborhoods, have closed during the last two decades. (1) The Archdiocese of Chicago alone (the subject of our study) has closed 148 schools since 1984. (2) The steadily increasing number of school closures has prompted talk of "crisis" in some education policy circles, (3) even leading to a "White House Summit" on the subject in 2008. (4) The reasons for sounding the alarm primarily concern the work done inside the schools that are closing--that is, the education of disadvantaged children who do not generally fare well in public schools. It is this work that prompted former Secretary of Education Margaret Spellings to call Catholic schools a "national treasure" not long ago. (5) Beginning with the groundbreaking research of James Coleman and Andrew Greeley, numerous scholars have found that Catholic school students--especially poor minority students--tend to outperform their public school counterparts. Greeley found, for example, that the achievement of minority students in Catholic schools not only surpassed that of those in public schools but, moreover, that the differences were the greatest for the poorest, most disadvantaged students. …

Seven Pillars of a New Evidentiary Paradigm: The Food, Drug, and Cosmetic Act Enters the Genomic Era

Abstract: To assess the impact of the March 2009 decision in Wyeth v. Levine, it is crucial to understand that the Supreme Court ruled on actions that the U.S. Food and Drug Administration (FDA) took under a statutory scheme that already had been amended by the time the case was decided. The Food and Drug Administration Amendments Act of 2007 (FDAAA) transformed drug regulation, adding significant new powers to develop evidence and make new types of decisions in the postmarket period. This article explores how the contours of drug regulation are likely to change after FDAAA, which is the most profound reworking of the U.S. drug regulatory framework in half a century. FDAAA envisions heavy use, during the period after drugs are approved, of evidence from large observational studies that rely on interoperable health data networks. Understanding what was wrong with FDA's old evidentiary paradigm, which dates back to 1962, is essential to understanding its new one. Parts II and III of this article discuss the evidentiary limitations of premarket drug trials; important aspects of modern legal doctrine rest on misconceptions about their evidentiary power. Part IV then explores how scientific advances flowing from the Human Genome Project over the past decade further undermined FDA's old evidentiary paradigm. FDAAA was Congress's response to these problems. Part V identifies seven pillars of the new evidentiary paradigm: seven novel propositions that reject foundational assumptions of twentieth-century drug regulation. Collapse of these assumptions sets off ripple effects in various doctrinal areas. Part VI provides two examples, with the aim of opening a scholarly debate about these and other impacts of FDA's new evidentiary paradigm. INTRODUCTION I. THE 1962 EVIDENTIARY PARADIGM FOR DRUG REGULATION A. The Gap Between Perception and Performance B. The Role of Randomized, Controlled Trials C. Evidentiary Paths Not Taken in 1962 II. LIMITATIONS OF THE OLD EVIDENTIARY PARADIGM A. The Myth of the Premarket Safety Trial B. Methodological Limitations of Premarket Safety Studies III. THE OLD PARADIGM: REPAIR OR REPLACE? IV. THE CHALLENGES OF GENOMIC MEDICINE A. The Challenge of Predictive and Preventive Medical Technologies B. The Challenge of Heterogeneous Drug Response V. SEVEN PILLARS OF THE NEW EVIDENTIARY PARADIGM A. Postmarket Evidence Development B. The Flexible Best Evidence C. Successive Improvement of the Risk-Benefit Ratio D. Putting Evidence into the Hands of Innovators E. Making Efficacy Regulation Effective F. Piercing the Veil of Average Safety and Efficacy G. Making Evidence Consequential VI. UNRESOLVED DOCTRINAL ISSUES A. Preemption of Suits Against Manufacturers After FDAAA and Wyeth v. Levine B. Federal Intrusion on Medical Practice CONCLUSION INTRODUCTION The Food and Drug Administration Amendments Act of 2007 (1) (FDAAA) transforms the evidentiary basis of medical product regulation by the U.S. Food and Drug Administration (FDA). FDAAA augments premarket clinical studies with new sources of evidence about the risks and benefits of drugs. FDAAA envisions heavy use, during the postmarket period, of large observational studies that rely on interoperable health data networks. This shift will affect diverse areas of legal doctrine. Product liability and medical malpractice are obvious candidates for impact. Questions about the preemptive effect of FDA's drug regulation loom large after FDAAA, notwithstanding the U.S. Supreme Court's March 2009 decision in Wyeth v. Levine. (2) "The major doctrinal question here is whether various forms of regulatory action by the FDA have the effect of preempting suits brought pursuant to state tort law." (3) Wyeth v. Levine held that FDA's drug approval and labeling decisions did not preempt a failure-to-warn suit against the drug's manufacturer. …

Jefferson Meets Coase: Land-Use Torts, Law and Economics, and Natural Property Rights

Abstract: This Article questions how well standard economic analysis justifies the land-use torts that Ronald Coase popularized in The Problem of Social Cost. The Article compares standard economic analyses of these torts against an interpretation that follows from the natural-rights morality that informed the content of these torts in their formative years. The "Jeffersonian" natural-rights morality predicts the contours of tort doctrine more determinately and accurately than "Coasian" economic analysis. The comparison teaches at least three important lessons. First, a significant swath of doctrine, Jeffersonian natural-rights morality explains and justifies important tort doctrine quite determinately. Second, this natural-rights morality complements corrective justice theory by the substantive rights that tort's corrective-justice features seek to rectify when wronged. Finally, standard economic tort analysis cannot prescribe determinate results without making simplifying assumptions more characteristic of moral philosophy than of social science. INTRODUCTION I. THE RIVALRY BETWEEN ECONOMICS AND JUSTICE IN TORT A. The Economic Indictment B. Explanatory Doubts II. AMERICAN NATURAL-RIGHTS MORALITY IN LAND-USE TORTS . A. American Natural-Rights Morality B. Political Morality and Corrective Justice C. The Argument III. LAND-USE TORTS AND NATURAL-RIGHTS REGULATION A. The Natural Right to Labor B. The Plaintiffs Possessory Interest and the Defendant's Harmful Act 1. Boundary Rules and the Rights to Use and Enjoy. 2. Trespass 3. Nuisance 4. Non-Nuisances C. Causation D. Scienter E. Affirmative Defenses F. Rights-Securing Qualifications 1. Qualifications and the Interest in Labor 2. Nuisance 3. Trespass 4. The Philosophical Bases for Reordering Civil Property Rights IV. ACCIDENT LAWS AND ECONOMICS RECONSIDERED A. The Tension Between Private Ordering and Expert Supervision B. The Historical Pedigree of Accident Law and Economics C. Conceptual Property Theory D. Normative Assumptions About Social Control E. A Simpler Alternative? CONCLUSION INTRODUCTION Economic analysis has taken over tort law and scholarship. Before economic analysis came on to the scene, lawyers assumed that tort law secured personal rights grounded in moral interests. Philosophical tort scholarship still tries to defend this commonsense view. Yet over the last generation, tort's moral pretensions have taken the academic equivalent of a drubbing. Even leading tort philosophers concede, "frankly, ... that the legal community has found various economic approaches more persuasive or compelling than those based on corrective justice," the main philosophical approach to tort. (1) This perception seems convincing because economic analysis claims it can explain the law more determinately than philosophical analysis. When tort cases appeal to moral terms, economists say, their arguments seem "mush--lacking in clear or persuasive guidelines for determining what conduct counts as 'wrongful.'" (2) Only economic analysis, it seems, can claim an "impressive level of fit with case outcomes" and a "comparatively high degree of determinacy." (3) As a result, "philosophers have marveled in contemptuous amazement as the apparently dead body of economic [legal] analysis took its seat at the head of the legal academic table and reigned unchallenged as the predominant theoretical mode of analysis in private law scholarship and pedagogy." (4) From a longer time horizon, however, this debate is surprising. People often assume that American tort law used to have content focused enough to be described as "individualistic"--that is, organized "to specify and protect individuals' rights to bodily integrity, freedom of movement, reputation, and property ownership. …

Territoriality and the First Amendment: Free Speech at - and beyond - Our Borders

Abstract: INTRODUCTION I. THE TERRITORY FIRST AMENDMENT A. Territorial Exclusion--Ingress B. Travel Restrictions--Egress C. Commerce: Import and Export Controls 1. Trading with the Enemy 2. The Tariff Act and "Immoral" Materials 3. Border Searches and New Technologies: A First Amendment "Exception"? 4. Export Administration 5. Cross-Border Artistic and Educational Exchanges: The Beirut Agreement 6. Dissemination of Foreign "Propaganda" 7. Cross-Border Contacts and Associations II. THE EXTRATERRITORIAL FIRST AMENDMENT A. Regulating Foreign Speech B. Libel Tourism: Extraterritorial Application of New York Times Co. v. Sullivan C. Exporting First Amendment Values and Norms D. Does the First Amendment Follow the Flag? III. OUR LESS TERRITORIAL, AND MORE COSMOPOLITAN, FIRST AMENDMENT A. Soft Borders, Cross-Border Information Flow, and Sovereignty 1. Legal and Regulatory Liberalization 2. Digitization and Territoriality 3. Cross-Border Information Flow and "Interdependence Sovereignty" B. Expansion of the First Amendment's Territorial Domain 1. Exporting First Amendment Laws, Norms, and Standards 2. Extraterritoriality and the Negative First Amendment C. The Transnational First Amendment CONCLUSION INTRODUCTION For most of our nation's history, territorial borders have marked the First Amendment's legal, practical, and theoretical domain. Information flow, whether in the form of persons or materials, and crossborder regulatory schemes have been physical and tangible in nature. Regulatory power at the borders has been grounded in detention, exclusion, and search and seizure. Traditional First Amendment theories or justifications have generally assumed that the First Amendment is a wholly domestic concern, one generally impervious to events, laws, or persons outside U.S. borders. (1) Today, however, we live in a world characterized by extraordinary advances in communications technology, widespread global travel, increasing cross-border commerce, and frequent transnational involvements. Information flows at great speed, and in remarkable quantity, across our national borders. In a "flatter" world, a single speaker can potentially distribute information in digitized form to millions of people across the world with just a few strokes and clicks. (2) Millions of people can and do travel across international borders to associate with family members and others. (3) Journalists share and distribute information across the globe. (4) The United States, like other nations, participates in interterritorial agreements, tribunals, and processes. Today, the First Amendment increasingly competes and often conflicts with the speech, privacy, and association laws of other nations. (5) Globalization, digitization, and other modern forces fundamentally alter the premise that the First Amendment is solely or principally a domestic concern bounded by territory. The relationship between territory and the First Amendment has become more complicated. But what precisely is that relationship? In a digitized and globalized speech environment, to what extent can or does the United States continue to rely upon a territorially based regulatory model with respect to the cross-border flow of information? How "open" are our borders in terms of speech and association, both as a matter of law and, with the advent of the Web and other communications technologies, practically speaking? Is the First Amendment a set of domestic limitations or a universal human right that applies without regard to borders? Scholars have devoted far less effort to systematically analyzing the intersection of territorial borders and the First Amendment than they have to various domestic doctrines and concerns. …

A Pirate Looks at the Twenty-First Century: The Legal Status of Somali Pirates in an Age of Sovereign Seas and Human Rights

Abstract: Mother, Mother Ocean, after all these years I've found, My occupational hazard being my occupation's just not around. (1) INTRODUCTION Captains Blackbeard and Kidd, and even Hook and Sparrow, are the primary conception of piracy for many people. (2) For these people, "real piracy is dead and the rest is entertainment." (3) But this vision of piracy merely represents the industry during its so-called Golden Age. (4) One need not travel to the seventeenth century or join a Goonies (5) adventure to find treasure or pirates. Pirates can be found today in the exact same places in which they thrived three hundred years ago: environments of lax law enforcement, advantageous geography, and sometimes even public complicity that allow them to ply their trade out of sight and out of mind. (6) Pirates have remained in that forgotten dimension--until recently. Somali pirates captured the world's attention on September 25, 2008, when a gang of heavily armed pirates in speedboats, referring to themselves as the Somali Coast Guard, hijacked a Ukrainian freighter, the Faina, carrying thirty million dollars worth of refurbished Soviet tanks, artillery, grenade launchers and ammunition. (7) The pirates demanded a ransom of twenty million dollars cash. (8) While this sensational story piqued the interest of many in Europe and the United States, it also exposed seemingly uncharacteristic deferential behavior and policy towards international outlaws. While the U.S. Navy encircled the pirates and the Russians moved in to join the engagement, the negotiations continued. (9) Certainly, concerns for the crew's safety caution against a commando operation on a ship full of explosives, but the galling fact is that on Somalia's Banaadir Coast this is business as usual, and, until recently, the international community has done little to change it. (10) The U.N. Security Council has now passed several resolutions intended to allow foreign states to police Somali waters for pirates and even continue their pursuit on land, (11) but the international response has been inconsistent. The French Navy has been aggressively confronting pirates, arresting them, and sending them to Paris to face trial. (12) By contrast, the British Royal Navy has generally sought to avoid confrontation with pirates due to concern over human rights violations. (13) With one fantastic exception, (14) the United States has also refrained from prosecuting Somali pirates on its own soil, preferring instead to seek arrangements for the trial of pirates in Kenya and elsewhere in the region. (15) This somewhat reluctant response from the international community is in large part the result of states proceeding cautiously in nebulous legal waters. (16) The effectiveness of Security Council resolutions has been limited because they leave unresolved the ultimate issue of a pirate's legal status. (17) Piracy--the world's oldest crime against the law of nations--does not have an easily applied and universally accepted definition. (18) First, it is not clear what a pirate--as opposed to a sea-robber, mutineer, or terrorist--is. Second, it is hotly contested whether piracy creates international jurisdiction, or whether areas of international jurisdiction (the high seas) create the only opportunity for legally cognizable piracy. Third, further ambiguity surrounds the question of whether a pirate has a nationality or human rights. Resolution of the Somali pirates' legal status will provide solid legal footing that will enable the international community to pursue the pirates forcefully. This Note attempts to define the legal status of Somali pirates. Part I examines the history of piracy and its past legal treatment in order to determine the customary international law of piracy as it existed prior to the twentieth century. Part II examines modern piracy generally, and then more specifically in the context of Somalia, with the purpose of establishing whether the Somali mariner-militants are in fact pirates. …

Regulating the Invisible: The Case of Over-the-Counter Derivatives

Abstract: In this Article, I focus on the regulation of the over-the-counter (OTC) derivative markets. I argue that current reform proposals and draft legislation fall short of constructing the linked domestic and international frameworks needed to successfully regulate the OTC derivative markets. The purpose of my Article is to propose and defend such a framework. Because of the inseparability of the domestic and international aspects of this issue, I argue that in addition to increased prudential supervision and regulation, the regulation of OTC derivative markets requires interwoven domestic and international systems for regulatory cooperation. This recommendation has two parts. First, Congress should create a framework of regulatory cooperation between the SEC and the CFTC through a regulatory joint venture. Second, I argue for an international framework of regulatory cooperation using a system of public-private partnerships to coordinate regulation of OTC derivatives in the global marketplace. INTRODUCTION I. SKETCH OF THE OVER-THE-COUNTER DERIVATIVE MARKETS . A. Background B. An Overview of the Benefits and Costs of Using OTC Derivatives 1. Benefits 2. Costs II. CURRENT REGULATORY SCHEME AND CHALLENGES A. Current Regulatory Scheme 1. A Brief History 2. Description of the Current Regulatory Scheme B. Intractable Regulatory Challenges 1. Globalized Financial Markets 2. Financial Engineering and Innovation III. THE CONTENDERS: COMPETING REGULATORY PARADIGMS, PROPOSALS, AND INSTITUTIONS A. Contending Regulatory Paradigms B. Contending Regulatory Reforms C. Contending Regulatory Institutions IV. FRAMEWORKS OF COOPERATION: DOMESTIC AND INTERNATIONAL APPROACHES TO INCREASE REGULATION OF THE OTC DERIVATIVE MARKETS A. Domestic Frameworks of Cooperation: An SEC-CFFC Joint Regulatory Venture: The Derivatives Supervision Initiative 1. The DSI and Financial Regulatory Reform 2. The SEC and CFTC's Joint Report and Current Reform Proposals 3. The DSI: A Sketch 4. The DSI: Potential Objections B. International Frameworks of Cooperation 1. Background Descriptions 2. The Problem of Transaction Cost 3. Theoretical Background 4. Model of International Public-Private Governance Partnerships C. Linked Domestic and International Frameworks of Cooperation D. Extensions of Domestic and International Frameworks of Cooperation CONCLUSION INTRODUCTION Mark Twain once said, "Everyone talks about the weather but nobody does anything about it." (1) The same can be said for one of the most famous--or infamous--of the financial products that were at the epicenter of the 2008-09 financial crisis: so-called "derivatives." In 1998, Robert Rubin, then U.S. Treasury Secretary, joined with Alan Greenspan, then Chairman of the Federal Reserve Board and Arthur Levitt, then Securities and Exchange Commission (SEC) Chairman, (2) to caution against a proposed "Concept Release" issued earlier that day (3) by Brooksley Born, then Chairperson of the Commodity Futures Trading Commission (CFTC), urging the regulation of the over-the-counter (OTC) derivative markets. (4) And even now, in the wake of a global financial disaster that many blame primarily on a host of exotic unregulated "invisible" financial instruments such as OTC credit default swaps (CDS), there is strong opposition to imposing restrictions on these markets. As one Congressman recently cautioned, "if Congress overreaches ... there could be very significant negative implications on how companies manage risk." (5) In addition, "[a]t least 42 nonfinancial companies and trade associations are lobbying Congress on derivatives" (6) and "[m]ore than 160 of Europe's largest companies have swung behind efforts to persuade regulators to exempt corporate users of over-the-counter derivatives from tough new regulations. …

The Alien Tort Statute and Federal Common Law: A New Approach

Abstract: International human rights cases brought under the Alien Tort Statute (ATS) (1) raise a host of issues: whether the alleged conduct violates well-established international law, (2) the applicability and scope of various forms of secondary liability, (3) the contours of state action, (4) the extension of liability to private individuals and corporations, (5) the possible award of punitive damages, (6) application of alter ego and veil piercing doctrines, (7) whether plaintiffs must exhaust their remedies, (8) and so on. After Sosa v. Alvarez-Machain, (9) courts and commentators have generally understood some of these issues as governed by federal common law (10) and others by international law; the choice between these two sources of law is often presented as binary. (11) Some forms of this approach can be analogized to Bivens (12) actions, with federal common law providing the cause of action and remedy, while international law supplies the conduct-regulating rules of decision. (13) It may be fair to say that the binary approach has become the prevailing narrative of ATS litigation. There is, however, another way to understand the relationship between federal common law (14) and international law in ATS cases. Federal common law might be understood as applying to all of these aspects of ATS litigation, including the substantive standard for liability, although some aspects of that federal common law (including the substantive standard of liability) are closely linked to international law. Thus, the relationship between federal common law and international law is not binary but instead is best understood on a continuum, with certain aspects of ATS litigation governed by federal common law that is tightly linked to international law, other aspects governed by federal common law that is not derived from international norms, and still others that fall somewhere in between. The extent to which federal common law is tied to international law in ATS cases is determined then by the inferred intentions of Congress and separation of powers because these are the bases upon which the development of federal common law in ATS cases is authorized after Sosa. (15) Congressional authorization and separation-of-powers considerations are linked, however, to the content of international law. Finally, according to this approach, the federal common law applied in ATS cases is best understood as sui generis--it is its own enclave of federal common law that is not necessarily binding or preemptive outside the context of ATS litigation. (16) These distinctions would not make a difference in the outcome of Sosa, of course. Whether we call it customary international law, or "international law cure common law," (17) Alvarez-Machain's ATS claim based on short-term unlawful detention did not meet the high bar imposed by the Sosa Court. (18) Nevertheless, applying international law as part of a federal common law that governs all aspects of ATS may change the outcome of cases that turn on issues like secondary and corporate liability. Moreover, it is preferable on descriptive, doctrinal, and normative grounds, as Part I below explains. Part I begins by describing the prevailing views on federal common law and the rule of decision in ATS cases. It then explains that applying federal common law to all substantive issues in ATS cases is preferable. In short, no issues in ATS cases are actually resolved through application of "pure" international law--instead, the law applied is filtered through the particular history and origins of the ATS itself, along with other factors unique to the United States. Descriptively, the federal common law approach is more accurate. Doctrinally, courts and litigants have wasted much time and energy choosing between "international" and "domestic" law, neither of which alone provides a satisfactory resolution of most contested issues. Normatively, federal courts may avoid (in whole or in part) the charge that they misunderstand customary international law, and they may be in a position to develop some norms of customary international law that are not yet fully developed, depending in part on the intentions of Congress and the executive branch. …

Returning Veterans and Disability Law

Abstract: Federal laws and policies as they relate to the employment of people with disabilities are at war with themselves. Antidiscrimination law, primarily through the Americans with Disabilities Act, is premised on the empowering idea that people with disabilities can and should work once discriminatory societal barriers are removed. But antidiscrimination law does not work alone. There is a separate sphere of social welfare policies that provides more affirmative forms of assistance to people with disabilities. These older programs contain significant work disincentives and are often conditioned on detachment from the labor force. These divergent views of disability and employment have contributed to the low success rate in moving and keeping people with disabilities in the workforce. The federal laws and programs for veterans with disabilities demonstrate that a more coherent policy is possible. Federal employment policy for veterans with disabilities is more integrated and encourages workforce participation through both antidiscrimination law and social welfare policies. The occasion of the largest wave of returning veterans with disabilities in recent history, combined with the renewed need to create employment opportunities for all groups in light of rising unemployment rates, creates a unique opportunity to analyze what can be learned from this more coherent framework. INTRODUCTION I. THE INCONSISTENT STRATEGIES OF EMPLOYMENT POLICY FOR PEOPLE WITH DISABILITIES II. DIFFERENT POPULATIONS AND A TWO-TIERED LEGAL AND POLICY SCHEME A. Different Populations B. Two-Tiered Employment Policy C. Two-Tiered Results? III. LOOKING AHEAD CONCLUSION INTRODUCTION These are interesting times in disability law. Disability has not always occupied center stage in the struggle for civil fights. Yet with the return of veterans with disabilities from Iraq and Afghanistan--the largest such wave in recent history--the disability experience is much more in the public consciousness. The outrage over conditions at the Walter Reed Medical Center was an expression of public support for the cause of wounded veterans. (1) Similarly, anyone reading the newspaper or listening to the radio recognizes the large number of human interest stories of veterans with disabilities trying to reintegrate into society. This focus on disability comes at an important moment. In the current economic climate, policymakers will be focusing renewed attention on increasing the national employment rate. This is therefore a crucial time to be considering how to remove barriers that keep people with disabilities out of the workforce. The Americans with Disabilities Act of 1990 (2) (ADA) has certainly created a more accessible society that has made people with disabilities a more visible presence in public life. But there is near uniform consensus that insofar as the ADA was intended to increase employment levels for people with disabilities, it has failed. This is the biggest current challenge in disability law and policy. (3) The ADA, of course, does not stand alone. The federal government's policy scheme relating to the employment of people with disabilities also contains a host of social support programs that provide cash payments, access to healthcare and medical goods, and job training programs. Yet the ADA and social support programs operate from very different premises. The ADA, like most employment discrimination statutes, rests on the assumption that many people with disabilities can and should work. (4) It stakes out the normative ground that disability is socially constructed, and focuses on removing discriminatory barriers that keep people with disabilities out of the workplace (and other spheres of public life). Federal social support policies, in contrast, start from a different place. As older programs, they tend to treat people with disabilities through a medical model, seeking to objectively evaluate whether their medical situation entitles them to governmental benefits. …

Umpires, Empathy, and Activism: Lessons from Judge Cardozo

Abstract: We may try to see things as objectively as we please None the less, we can never see them with any eyes except our own (1) INTRODUCTION Our national dialogue about the role of federal judges in our democratic society has devolved into a political game in which points are awarded to whomever can reduce the complexities of judging into the most oft-repeated sound bites (2) Lawmakers on both sides of the aisle deride the opposing party's judicial nominees as activists and extremists whose personal prejudices override their allegiances to the rule of law (3) Though much of the rhetoric about judges and judging has proven politically expedient for the politicians and interest groups engaged in judicial confirmation fights, it has been a disservice to the American public and the federal judiciary Oversimplified talking points and buzzwords hardly explain what judges actually do, or, more importantly, what we should expect of them (4) Two talking points have gained special traction One is that judges should be nothing more than neutral umpires For example, during Chief Justice John Roberts's confirmation hearings, he promised to "remember that it's my job to call balls and strikes" (5) From Capitol Hill to cable news, the analogy took hold as shorthand for the idea that administering justice is a purely objective task, one in which life experiences and personal conceptions of justice play no role Despite, or perhaps because of, its simplicity, the judge-as-umpire construct gained political popularity and became an indispensible page in the confirmation playbook (6) A second, oft-repeated talking point is that empathetic judges are dangerous, activist judges No sooner had President Barack Obama uttered the word "empathy" in connection with judicial appointments than the word took on a life of its own (7) It became a code word for judicial overreaching, and it served as the blank slate onto which politicians painted doomsday scenarios of a judiciary run amok That one word became so politically charged that Supreme Court nominee Sonia Sotomayor went on record as distancing herself from the approach to judging espoused by the President (8) I would like to step back from today's political rhetoric about the role of judges and the nature of judging Far back Back to 1921, when then-Judge, and eventual Supreme Court Justice, Benjamin Cardozo delivered a series of influential lectures on judges' decisionmaking processes (9) Judge Cardozo's writings are widely--and properly--regarded as authoritative on this subject (10) He effectively discredited the legal formalists' view of the law as a closed system of preordained rules that were logically to be discovered and mechanically to be applied (11) Notre Dame Law School is to be commended for hosting a colloquium to remind us of Judge Cardozo's rightful place at the fore of our modern discussions about the judicial function and for encouraging us to reflect meaningfully on the role of judges in our democratic system Judge Cardozo recognized that the law is not always a strike zone; that the facts of life are not always pitches; and that judges are not always umpires making objective calls between balls and strikes He acknowledged that there are some areas in which the law is unclear or undeveloped and others in which reasonable jurists will disagree about its proper application to the facts (12) In these areas of the law, where much appellate litigation and most Supreme Court litigation takes place, judges must exercise judgment and discretion Yet the judge-as-umpire construct, as recently deployed in political debate, fails to recognize the existence of either judgment or discretion Only after we acknowledge that complications do exist within the law--that the act of judging defies simple metaphors and labels--may we engage in a serious discussion about what should be expected of our judges Time and again, Judge Cardozo acknowledged that judges should be true to their sense of justice, shaped as it is by their own life experiences …

State Action and Corporate Human Rights Liability

Abstract: This Essay considers the requirement of state action in suits brought against private corporations under the Alien Tort Statute (ATS). It argues that, in addressing this requirement, courts have erred in applying the state action jurisprudence developed under the domestic civil rights statute, 42 U.S.C. [section] 1983. It also argues that, even if it were appropriate to borrow in this manner from the [section] 1983 cases, such borrowing would not support the allowance of aiding and abetting liability against corporations, and that this liability is also problematic on a number of other grounds. The Essay assumes for the sake of argument that corporations are not categorically excluded as defendants under the ATS, although this is currently a matter of some controversy. (1) I. BACKGROUND Enacted in 1789 as part of the First Judiciary Act, the ATS provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." (2) By its terms, the ATS covers only cases involving an alleged violation of international law. For a variety of reasons, the alleged international law violation in ATS cases is almost always a violation of the "law of nations," also known today as "customary international law," rather than a violation of a treaty. As with violations of most provisions of U.S. constitutional law, violations of international law, whether customary or treaty-based, generally require state action. (3) This is true even for violations of many international human rights norms, such as the prohibition on torture. (4) The use of the ATS for international human rights litigation can be traced to the Second Circuit's 1980 decision in Filartiga v. Pena-Irala, (5) in which two Paraguayan citizens sued a former Paraguayan police official for torturing and murdering a member of their family. (6) The court in Filartiga held that "deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties," and that, as a result, "whenever an alleged torturer is found and served with process by an alien within our borders, [the ATS] provides federal jurisdiction." (7) In this and similar cases brought against foreign government officials, the defendant is alleged to have perpetrated the abuse, and to have acted under color of state law in doing so, so there is usually little difficulty in these cases in meeting the state action requirement. (8) In recent years, however, a large number of ATS cases have been brought against private corporations, relating to their involvement with abusive regimes. For a variety of reasons, corporate defendants are attractive targets for ATS suits: corporations are not thought to benefit from the sovereign immunity doctrines that apply to governmental defendants; (9) most large corporations have a presence in the United States, making it easy to obtain personal jurisdiction over them in this country; they typically have substantial assets that can be reached by U.S. courts; and they have an incentive to settle cases in order to avoid bad publicity. The Supreme Court considered the scope of the ATS in its 2004 decision, Sosa v. Alvarez-Machain. (10) That case, like the corporate cases, involved a suit against a private actor. A Mexican national who had been abducted from Mexico at the behest of the United States was suing a private Mexican citizen for his role in the abduction. After reviewing the history of the ATS, the Court concluded that although the statute was "a jurisdictional statute creating no new causes of action," (11) it served to "underwrite litigation of a narrow set of common law actions derived from the law of nations." (12) The Court also held that claims could not be brought today under the ATS "for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when [the ATS] was enacted," (13) and the Court identified these paradigms as the norms against violation of safe conducts, infringement of the rights of ambassadors, and piracy. …

Roe's Life-or-Health Exception: Self-Defense or Relative-Safety

Abstract: INTRODUCTION I. ROE'S AMBIGUOUS POSTVIABILITY HEALTH EXCEPTION A. The Prima Facie Case for the Self-Defense Interpretation B. The (Complicated) Prima Facie Case for the Relative-Safety Interpretation 1. Cyril Means's Advocacy of the Relative-Safety Test 2. People v. Belous 3. United States v. Vuitch 4. The Relative-Safety Approach as an Interpretation of Roe's Life-or-Health Exception C. The Life-or-Health Exception as an Instance of Studied Ambiguity D. The Myth of Doe v. Bolton E. The Mental-Health Problem F. Is the Self-Defense Approach Unconstitutionally Vague? II. THE RISE OF THE RELATIVE-SAFETY APPROACH A. Colautti v. Franklin B. Thornburgh v. American College of Obstetricians & Gynecologists C. Justice White's Thornburgh Dissent D. Justice O'Connor's Thornburgh Dissent III. PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V. CASEY AND THE "SIGNIFICANT HEALTH RISKS" TEST A. The Third Circuit's Opinion B. The Joint Opinion of Justices O'Connor, Kennedy, and Souter C. The Casey Court's Treatment of the Medical Emergency Provision D. Justice Stevens's Attempt to Lay a Foundation for the Relative-Safety Test E. The Plurality's Failure to Endorse Roe's Compelling-State- Interest Holding F. The Anti-Roe Coalition's Treatment of the Medical Emergency Exception IV. THE LIFE-OR-HEALTH EXCEPTION SINCE CASEY. THE CARHART DECISIONS A. The Return of the Relative-Safety Approach in Stenberg v. Carhart B. Justice Kennedy's Stenberg Dissent C. Justice Thomas's Stenberg Dissent D. A Unanimous Interlude: Ayotte v. Planned Parenthood of Northern New England E. Gonzales v. Carhart: A Hemi-Demi-Semi Victory for the Self-Defense Approach F. Justice Ginsburg's Gonzales Dissent G. The Implications of Gonzales 's Ruling Limiting Facial Challenges CONCLUSION INTRODUCTION Roe v. Wade (1) famously holds that fetuses are not persons within the meaning of the Fourteenth Amendment prior to birth. (2) Roe also holds, however, that states have a "compelling" interest in fetal life once the fetus is viable, (3) that is, "potentially able to live outside the mother's womb, albeit with artificial aid." (4) Before viability, a woman may obtain an abortion whenever she and her doctor conclude it would be in her best interest. (5) After viability, a state may "regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." (6) Thus, the general rule that states may protect viable fetal life through abortion bans and regulations is subject to a constitutional life-or-health exception to which state laws must conform. Much depends, therefore, on what the life-or-health exception means. As formulated in Roe, the exception turns out to be deeply ambiguous in rationale and scope. The exception could be shaped in accordance with self-defense principles, on the theory that the state's interest in viable fetal life should yield to the woman's right to self-preservation. (7) On that understanding, the exception would apply only when a doctor reasonably believes that continued pregnancy would put the mother in grave danger of death or serious injury. Alternatively, the life-or-health exception could stem from a judgment that the state's interest in viable fetal life--while strong enough to require a woman to accept the ordinary burdens of becoming a mother--must yield when, in addition, continued pregnancy would pose greater risks to her life or health than an abortion. (8) On that understanding, the exception would apply whenever, in a doctor's good-faith judgment, the abortion is relatively safer for the mother than pregnancy, because its overall health risks are believed to be smaller. …

More Connection, Less Protection? Off-Campus Speech with On-Campus Impact

Abstract: INTRODUCTION The same scenarios come up time and time again in student free speech cases. A student spreads rumors about fellow students on his own website. School authorities find out about the website and intervene. (1) A group of students publishes an "underground" newspaper and distributes it on campus. School authorities see the newspaper and suspend the student. (2) A student creates a website threatening or mocking the school principal. Word spreads, the principal finds out, and he suspends the student. (3) A student writes a disturbing poem. It makes its way to school and authorities suspend the student for fear of violence. (4) Sometimes courts uphold the suspensions. Other times, courts hold that schools have impermissibly trampled on student free speech rights. The cases all involve student speech that originates off campus, but then finds its way to campus either through technology, word of mouth, or a third party. While the Supreme Court has set out relatively clear guidelines to govern student free speech on public school campuses, uncertainty about that precedent's applicability to these scenarios has caused confusion. School administrators are caught in the middle. (5) They are charged with ensuring order and discipline, inculcating values, and protecting the safety and welfare of children. Yet, schools must also refrain from infringing on the free speech rights of students--rights that the students famously do not shed at the schoolhouse gate. (6) As if that task were not difficult enough already, the rapid change of technology that allows students to communicate instantly, on and off campus, has compounded the problem. The rapid change in communication technology did not simply plateau with the advent of the Internet and email. Rather, in recent years the forms of electronic communication have multiplied, with instant messaging, text messaging, MySpace, Facebook, blogs, YouTube, Twitter, and many more technologies. (7) These allow students to reach each other more and more. They also multiply the number of ways that students can bully, harass, taunt, and slander each other. (8) Cyberbullying--bullying through websites, email, and other forms of electronic communication--has become a widespread problem, with as many as seventy-five percent of teenage students reporting having been bullied online. (9) Teachers and administrators have become targets as well. (10) While some of these forms of student expression may originate off campus, they can eventually have a great impact on the campus environment, sometimes without ever being accessed from school. The disruption caused by such students can wreak havoc on individuals at school (11) and the entire school environment, as though the words were uttered in the classroom. Yet schools are commanded to deal with such disruptive students in an appropriate way, even when those students decline to act appropriately themselves. On the other hand, school administrators have been known to overreach and overreact to squelch undesirable student speech, often infringing on student free speech rights. (12) In a post-Columbine world, schools are especially sensitive to possible threats to student safety. (13) While the Internet may offer students a new outlet for expression, with the potential to reach wide audiences, it is also a place where school administrators may seek out and punish what they find to be inappropriate behavior. In the 1960s, overreaching by administrators was a threat to student expression via "underground newspapers." (14) Now it has become a threat to all student expression via electronic media. (15) When students are outside of school, they are normally governed by the general laws that govern citizens of all ages. (16) This includes speech. When students choose to express themselves in school, however, their rights are slightly circumscribed, governed by the familiar Supreme Court trilogy of Tinker v. …

Double Take: Evaluating Double Jeopardy Reform

Abstract: In February 1990, Ann Ming found her daughter Julie Hogg’s body hidden behind a bath panel in her Teesside, England home1 She had been missing since the previous November2 The British government charged and indicted William Dunlop with her murder3 Following two mistrials in May and October 1991, the Crown Court declared Dunlop “not guilty”4 In 1999, while incarcerated for an unrelated offense, Dunlop repeatedly admitted to having murdered Hogg5 He confessed to his prison nurse, wrote letters referencing his guilt to friends, and in a child custody proceeding stated, “I have admitted that I was responsible for the death of Julie Hogg I stood trial at Newcastle Crown Court for her murder and was acquitted I denied the offence and I accept that I lied”6 Barred from re-indicting Dunlop for homicide by the historic common law prohibition on double jeopardy,7 the Crown prosecution took the “unusual” step of

Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal

Abstract: This Article critically examines the Supreme Court's most recent decision on Rule 8(a)(2) pleading standards, Ashcroft v. Iqbal, decided in May 2009. The Article supplements and extends the analysis in my recent article, Twombly, Pleading Rules, and the Regulation of Court Access, which examined the Supreme Court's seminal Bell Atlantic Corp. v. Twombly decision and evaluated the costs and benefits of screening meritless suits at the pleading stage. In this Article, I argue that Iqbal does much more than clarify and reinforce key points in Twombly; it takes Twombly's plausibility standard in a new and ultimately ill-advised direction. My criticism has two parts. First, Iqbal adopts a "two-pronged approach" that filters legal conclusions in the first prong before applying the plausibility standard to factual allegations in the second. I argue that this two-pronged approach is incoherent. There is only one prong: the judge must determine whether the complaint, interpreted as a coherent whole, plausibly supports each element of the legal claim. The second problem with Iqbal runs deeper. Iqbal screens lawsuits more aggressively than Twombly, and does so without adequate consideration of the policy stakes. In particular, Iqbal applies a thick screening model that aims to screen weak as well as meritless suits, whereas Twombly applies a thin screening model that aims to screen only truly meritless suits. The thick screening model is highly problematic on policy grounds, even in cases like Iqbal that involve qualified immunity. Moreover, the Supreme Court is not institutionally well equipped to decide whether strict pleading is desirable, especially when it implements a thick screening model. Those decisions should be made through the formal Rules Enabling Act process or by Congress. INTRODUCTION Court access has become a matter of intense concern today in the wake of two major pleading decisions of the United States Supreme Court. The first, Bell Atlantic Corp. v. Twombly, (1) held that a plaintiff must allege sufficient facts to state a "plausible" claim for relief. (2) Twombly's critics--and there are many--complain that the plausibility standard unfairly impedes court access for meritorious suits. (3) The second decision, Ashcroft v. Iqbal, (4) issued on May 18, 2009, applies the plausibility standard to allegations that are less obviously deficient than those in Twombly and, in so doing, signals an even stricter approach to pleading requirements. Provoked by the Iqbal decision, many critics now believe that it is imperative to undo the effects of plausibility pleading. On July 22, 2009, Senator Arlen Specter introduced the Notice Pleading Restoration Act (5) aimed at reinstating the liberal notice pleading standards existing prior to Twombly, and on November 19, 2009, Representative Jerrold Nadler introduced the Open Access to Courts Act (6) for the same purpose. I discussed Twombly, plausibility pleading, and court access in a previous article. (7) This Article extends that earlier work by examining what Iqbal adds to Twombly. Although the Court purports to be applying Twombly's plausibility standard, a fair reading of the majority opinion shows that Iqbal's version of plausibility is significantly stricter than Twombly's. Moreover, the Iqbal Court enlists plausibility for a broader purpose. Twombly uses plausibility to screen only for truly meritless suits, but Iqbal uses it to screen for weak lawsuits too. The difference is crucial. Screening weak lawsuits raises much more complex and controversial policy questions than screening meritless suits, and the Supreme Court is not well equipped institutionally to address those policy questions. They are better left to the committees involved in the formal rulemaking process or to Congress. Moreover, although a response to Iqbal is needed, neither of the proposed bills is the right response. It is not at all clear that the best approach is to restore pre-Twombly law. …

The Constitution and the Laws of War during the Civil War

Abstract: INTRODUCTION I. LAW OF THE FOUNDING AND ANTEBELLUM PERIODS A. Allegiance and Protection B. Municipal and International Law C. War and the Alien D. The Antebellum Law of Treason and Rebellion II. LEGAL UNCERTAINTY AT THE OUTSET OF THE CIVIL WAR A. Was the Insurrection Crime, War, or Both? B. Legal Theories Available to the U.S. Government III. THE WAR OF IDEAS: THE LAWS OF WAR DISPLACE THE CONSTITUTION WHEN THE UNITED STATES ACTS MILITARILY AGAINST ENEMIES A. The Union's Lawyers, Statesmen, and Theorists 1. Rebels in Arms 2. Noncombants B. A Theory of Extra-Constitutional, Lawless Power? C. The Work of Lower Federal Courts in 1861 and 1862 1. Decisions on Prize and Other Seizures 2. Piracy and Treason Prosecutions IV. THE SUPREME COURT ENTERS THE WAR A. The Prize Cases B. Wartime Decisions After the Prize Cases 1. Additional Decisions Concerning Maritime Prizes 2. Courts Closed to Rebel Enemies During the War 3. Vallandigham's Case V. POSTBELLUM SUPREME COURT DECISIONS ON WAR ISSUES A. Secession Was Treason Because Allegiance Was Unimpaired. B. The Laws of War Displace Constitutional Rights of U.S. Citizen Enemies C. Discretion to Choose Sovereign or Belligerent Methods D. Immunity/Indemnity E. The Displacement of Constitutional Protection by the Laws of War Was Not a Theory of Extra-Constitutional Power F. Enforcing the Constitutional Rights of Citizens During the War G. Military Occupation of Enemy Territory H. Milligan in Context CONCLUSION INTRODUCTION In the courts and legal academy, interest in the Civil War has increased greatly in the last decade, and it is not hard to understand why. The 9/11 attacks were by far the most spectacular and deadly military attacks on the mainland United States since the Civil War. Both the conflict against al Qaeda and the Civil War were untraditional; in both, it was contested whether they amounted to "war" in the sense used in the Constitution and public international law, and what effect that had on government powers and individual rights. Lines between combatants and noncombatants were blurry in both conflicts, often intentionally so. Because significant aspects of both conflicts occurred on U.S. soil and involved American citizens (the Civil War much more so, obviously), the federal courts were from the outset asked to rule on the legality of executive and congressional actions. The Supreme Court has issued four important decisions regarding the war on terror: Hamdi v. Rumsfeld, (1) Rasul v. Bush, (2) Hamdan v. Rumsfeld, (3) and Boumediene v. Bush. (4) In all four, the Court found and enforced novel constitutional, statutory, or international rights for alleged terrorist enemies of the United States. In all four, the Justices relied on precedents and authorities from the Civil War and engaged in detailed debate about their meaning. The scholarly literature about war-on-terror legal issues is rife with references to Civil War precedents. Two which have been very prominent in the post-9/11 debates are the Supreme Court's decisions in the Prize Cases (5) and Ex parte Milligan. (6) The former held that President Lincoln had the authority to invoke belligerent rights akin to those in international wars--that is, the rights and powers that the laws of war allow sovereign nations to use in their mutual conflicts--to blockade the ports of seceded states in the spring of 1861 against Confederate and neutral shipping, without Congress having first declared or otherwise noticed the beginning of a war between the states. (7) (Enemy vessels or cargo seized validly under the international laws of war were referred to as "prizes" of war, because they generally accrued to the financial benefit of the captors--hence the "Prize Cases. …

Re-Examining Customary International Law and the Federal Courts: An Introduction

Abstract: Legal scholars have debated intensely the role of customary international law in the American federal system. The debate involves serious questions surrounding the United States’s constitutional structure, foreign relations, and human rights. Despite an impressive body of scholarship, the debate has stood at an impasse in recent years, without either side garnering a consensus. This symposium— Re-examining Customary International Law and the Federal Courts—aspires to help advance the debate over the status of customary international law in the federal courts. The symposium received thoughtful and constructive contributions from Professors Curtis A. Bradley, Bradford R. Clark, Andrew Kent, Carlos M. Vázquez, and Ingrid Wuerth. The authors presented early versions of their papers at the annual meeting of the Federal Courts Section of the American Association of Law Schools in New Orleans, Louisiana on January 7, 2010. The papers address the general status of customary international law in the federal system and, more specifically, the scope and effect of the Alien Tort Statute (ATS), which confers jurisdiction upon federal courts to hear an important category of cases involving customary international law.

If All Politicians Are Corrupt, but All Defendants Are Presumed Innocent, Then What? A Case for Change in Honest Services Fraud Prosecutions

Abstract: Who steals my purse steals trash; 't is something, nothing; 'T was mine, 't is his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed. (1) PROLOGUE On December 8, 2009, the Supreme Court heard arguments in United States v. Black (2) and United States v. Weyhrauch. (3) The Court has also granted certiorari in United States v. Skilling, (4) which it will hear this Term. Each case requires the Court to interpret 18 U.S.C. [section] 1346, an arrow in the Department of Justice's quiver for prosecuting corrupt politicians and businessmen. (5) Considering the issues presented, it seems that the Court intends to throw light on a subject it admonished Congress to "speak more clearly" about nearly twenty-two years ago in McNally v. United States, (6) in which the Court refused to extend federal mail fraud (7) to schemes to deprive the public of its right to honest and fair government. (8) Congress subsequently amended the statute in 1988 to include frauds that "deprive another of the intangible fight of honest services," (9) thereby reinstating any "honest services" jurisprudence preceding McNally. (10) Ever since, the question of what constitutes "honest services" has festered in the courts of appeals, which have adopted a variety of principles to limit the statute's reach, albeit not uniformly. (11) The resulting circuit split and post-McNally caselaw evinces concerns regarding vagueness, federalism, and how best to preserve the force of [section] 1346. (12) And so, regardless of how the Court decides these issues, this much is certain: a unifying definition for the "outer boundaries" (13) of honest services fraud, in light of [section] 1346's enactment, is long overdue. INTRODUCTION Are all politicians crooked? Are all captains of industry thieves? In the United States, where scandals in Washington, D.C. and on Wall Street make headlines (14) and movie plots, (15) can anyone be blamed for answering those questions affirmatively? Between print, television, radio, film, and Internet, Americans are regularly reminded that even white-collared professionals often have evil-meaning minds and evildoing hands. Indeed, many Americans assume that politicians and businessmen are corrupt--they are presumed guilty. (16) Certainly, an unsettling number of politicians misuse their offices--be it for money or interns--and lately Wall Street seems chock-full of swindlers looking to fleece unsuspecting investors. Nevertheless, honest politicians and fair-dealing businessmen do exist. (17) Regardless of how their cases are decided, Bruce Weyhrauch, Conrad Black, and Jeffrey Skilling fit the bill of high-profile citizens who are widely regarded as corrupt. (18) Weyhrauch was a lawyer and member of the Alaska House of Representatives, (19) Black was CEO of Hollinger International, (20) and Skilling was CEO of Enron Corporation. (21) Each man was indicted pursuant to 18 U.S.C. [section] 1346 for honest services mail fraud. (22) Another such individual is former Alabama governor, Don Siegelman, who was also indicted (and convicted) under [section] 1346. (23) Each man was charged with the same federal crime in a different circuit, and now seeks Supreme Court review of his case to decide whether honest services fraud may be fairly enforced against him. (94) What constitutes a "scheme or artifice to deprive another of the intangible right of honest services"? (25) The answer varies depending on the federal circuit in which a defendant is charged, and then it may be based on state law or subject to interpretation by a federal court. (26) At its core, the problem is that a comprehensive definition for "honest services" cannot be gleaned from the language of [section] 1346, or from case law, or from legislative history. (27) Each circuit has had to establish a judicial construction of honest services, (28) and the resultant split has been criticized as subjecting defendants to ad hoc standards of culpability by federal prosecutors and judges. …

Are You Serious: Examining the Constitutionality of an Individual Mandate for Health Insurance

Abstract: Are you serious? Are you serious? Nancy Pelosi, Speaker of the House, responding to a question about the constitutionality of an individual mandate for health insurance (1) INTRODUCTION The Patient Protection and Affordable Care Act (PPACA) (2) has significantly reformed the U.S. health care system. As a result, nearly all Americans will be required to purchase health insurance. (3) An individual mandate for health insurance is not a new idea. In 1993, the Senate Republican Task Force drafted a health care reform bill that included an individual mandate. (4) As the debate over health care reform has unfolded, questions have been raised about whether the Constitution grants Congress the power to impose an individual mandate to purchase health insurance. (5) In 1994, the Congressional Budget Office addressed the issue, concluding that "[a] mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action." (6) More recently, the Congressional Research Service concluded that Congress might have the power to enact an individual mandate "as part of its taxing and spending power, or its power to regulate interstate commerce." (7) However, it acknowledged that "[w]hether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or a service." (8) This Note analyzes whether Congress has the power to enact an individual mandate for health insurance under the Taxing and Spending Clause and Commerce Clause. (9) Part I examines the problems with our current health care system and the policy argument for an individual mandate. Part II addresses the complaint that an individual mandate would be an unprecedented assault on individual liberty. It compares the effects that prohibitions and mandates have on personal freedom and notes that there is precedent for the federal government mandating action as a condition of citizenship. Part III examines whether Congress can enact an individual mandate under its taxing power. Finally, Part IV analyzes whether an individual mandate can be enacted under Congress's power to regulate interstate commerce. I. A BRIEF EXAMINATION OF HEALTH CARE IN THE UNITED STATES AND THE ARGUMENT FOR AN INDIVIDUAL MANDATE The rising cost of health care and the number of Americans without health insurance are two of the main concerns that drove the push for health care reform. (10) In 2007, health care spending in the United States was equivalent to 16.2% of gross domestic product (GDP). (11) This total is expected to rise to 25% of GDP by 2025 if our current health care system is not reformed. (12) Since 1980, the annual rate of growth in medical care prices was 4.7%--almost double the annual rate of inflation. (13) The cost of obtaining health insurance has increased significantly in the last decade, making it difficult for some Americans to afford health insurance. (14) In 2007, 45.7 million Americans were uninsured at some point during the year. (15) Over ninety-eight percent of the uninsured are under age sixty-five. (16) The two main groups of the uninsured are low-wage workers who do not receive health insurance through their employers and healthy young people unwilling to buy insurance at its current price. (17) Thirty-nine percent of the uninsured are nineteen to thirty-five years old, (18) and sixteen percent of the uninsured earn at least $50,000 per year in household income. (19) One recent study estimates that forty-three percent of uninsured Americans have enough disposable income to afford health insurance but voluntarily choose not to purchase it. (20) Being uninsured can adversely affect an individual's health. The uninsured have a higher premature mortality rate than people with health insurance. …

Confronting Religion: Veiled Muslim Witnesses and the Confrontation Clause

Abstract: INTRODUCTION On October 11, 2006, Ginnnah Muhammad appeared in Michigan small claims court before District Judge Paul J. Paruk in her suit against Enterprise Rent-A-Car. (1) Muhammad is a practicing Muslim who wears the niqab (hereinafter "veil"), which covers every part of her face except her eyes. (2) The judge asked Muhammad to remove the veil prior to testifying so that he could gauge her reliability and credibility. (3) She refused on religious grounds and Judge Paruk ultimately gave her a choice: remove the veil and continue testifying or continue to refuse and risk having her suit dismissed. (4) Muhammad chose the latter option and her suit was ultimately dismissed. (5) In effect, Muhammad lost her day in court because of her desire to practice an aspect of her religion. This past summer, partially in response, the Michigan Judges Association and Michigan District Judges Association adopted a new statewide rule "giving judges 'reasonable' control over the appearance of parties and witnesses to observe their demeanor and ensure they can be accurately identified." (6) Now imagine a similar situation in the criminal context: A lead prosecutor decides that the key witness is a Muslim woman, who happens to wear a veil, and he needs her to testify against the criminal defendant. The witness will appear in the courtroom before the judge, jury, and each side. But the Muslim believes, as Muhammad does, that removing her veil is a burden on her religious practice, offensive to her dignity, and an infringement of her Free Exercise rights under the First Amendment. She refuses to remove the veil but is willing to give her testimony while her face is covered. Defense counsel immediately cites the Sixth Amendment, quoting, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." (7) Defense counsel claims that the defendant's general right to confront witnesses includes a face-to-face meeting in which the finder of fact is given ample opportunity to judge the credibility and reliability of the witness. (8) Meanwhile, the Muslim witness argues that she is entitled to an exemption from general court procedures concerning witness attire due to the protections of the Free Exercise Clause in the First Amendment. The government is caught in the middle because it has an interest in upholding both constitutional rights. Protecting religious freedom seems just as important as ensuring that criminal defendants receive a fair trial, especially given the explicit guarantees of both the First and Sixth Amendments. The above hypothetical scenario has not occurred in any criminal case to date. However, in a post-9/11 world this scenario is certainly foreseeable given the heightened awareness of the place of Muslims in American society and an increasing interest in the intersection of religious practice and the law. This is especially true considering the increase in the number of U.S. residents that identify as Muslims. (9) In such a situation, which constitutional right takes precedence? Is the liberty interest found in the Free Exercise Clause stronger than that found in the Confrontation Clause? Does the government have a stronger interest in the protection of either right and should the government take sides in such a conflict? Does current Supreme Court jurisprudence, concerning both clauses, provide an adequate solution to this problem? Is it possible to have a workable resolution of a conflict between two fundamental constitutional rights, grounded in both the history and text of the Constitution? These are the issues underlying the threshold question that this Note will address and attempt to answer: whether a Muslim witness must unveil while on the witness stand in a criminal trial. It seeks to elucidate future discussions about this topic. Part I acknowledges the various interests held by the witness, the defendant, and the State. …

The Cost of Time: Haphazard Discounting and the Undervaluation of Regulatory Benefits

Abstract: When performing cost-benefit analyses, regulators typically use willingness-to-pay studies to determine how much to spend to avert risks. Because money has a time-value, when a risk is valued is inextricable from how much it is valued. Unfortunately, the studies on which regulators rely are insensitive to this fact: they elicit people's willingness to pay for risk reductions without identifying the time at which the risk reduction will occur. Relying on these time-indeterminate studies has led to a systematic skew in regulatory cost-benefit analysis, toward the undervaluation of risks to human lives. Insofar as cost-benefit analyses inform regulation, this suggests that the current system systematically under regulates against risks to health and safety. INTRODUCTION I. TIME, MONEY, AND RISK: AN ORIENTATION A. Risk and Money B. Time and Money C. Risk and Time II. MONETIZATION AND TIME-INDETERMINACY: PROBLEMS WITH PRACTICE A. Regulatory Cost-Benefit Analysis in Practice B. One Agency's Practice: EPA 1. Cost-Benefit Analysis at EPA 2. A Review of the Studies C. Policy Implications of Time-Indeterminacy III. TOWARDS A (PARTIAL) SOLUTION A. Improving Time-Determinacy B. Choosing When to Value Preferences IV. OBJECTIONS V. IMPLICATIONS OF TIME-INDETERMINACY IN OTHER CONTEXTS CONCLUSION INTRODUCTION To perform cost-benefit analyses, regulators often trade off immediate costs with benefits that will not accrue until some future time. How this trade-off is performed has important implications, particularly where--as with climate change, nuclear power, and the preservation of endangered species--most of the benefits of a regulatory action will be enjoyed by the future. How do regulators value risks to the future? At first glance, much the way they value immediate risks: they rely on studies that measure people's willingness to pay for a risk reduction and assume that those preferences are constant across contexts. If study participants are, on average, willing to pay $80 to ameliorate a risk of 1-in-100,000 of dying from cancer, regulators assume that preventing a single cancer death will justify an expenditure of $8 million. (1) But an expenditure of $8 million ... when? If the cancer death will not occur until twenty years from now, regulators assume that it will be appropriate to spend $8 million to prevent the death in twenty years. To determine how much to spend today to reduce the future (or "latent") risk, regulators "discount" the value of the risk reduction to modern-day dollars. They do this on the assumption that money has a time-value: a dollar today is worth less than a dollar twenty years from now, because money can be invested and made to grow. The effect of discounting is marked: at a 7% discount rate--a rate currently recommended by the Office of Management and Budget (2)--regulators would be willing to spend only $2 million today to prevent the future cancer death. This approach is highly controversial. (3) For the purposes of this Article, however, I take current practice on its own terms (4) and make a basic internal point. The point is this: study participants may discount too. This point will turn out to be very inconvenient for regulators. To see why, consider the example above. The initial study found that, on average, people were willing to spend $80 to ameliorate a cancer mortality risk of 1-in-100,000. Regulators used this figure to calculate both the amount they would spend now to prevent a single cancer death today ($8 million) and the amount they would spend now to prevent a single cancer death in twenty years ($2 million). To avert the risk of one hundred cancer deaths in twenty years, then, regulators would be willing to spend $200 million today. But if participants in the study gave their initial valuations on the assumption that the cancer death would come (if it did come) not today, but at some time in the future--then these numbers are completely wrong. …

Deciphering the Chemical Soup: Using Public Nuisance to Compel Chemical Testing

Abstract: The problem of toxic ignorance plagues modern society. On a daily basis, each of us is exposed to hundreds of chemicals, the vast majority of which have been subject to little or no testing to determine whether they are toxic to humans or the environment. Many of these chemicals may turn out to be harmless. Some, however, may cause cancer, reproductive defects, and other harms. In toto, chemicals are believed to be responsible for tens of thousands of deaths per year. The systematic failure of manufacturers and distributors to test chemical substances is a rational response to marketplace incentives, tort liability rules, and existing chemical regulations. To address the problem of toxic ignorance, this Article proposes the recognition of a new type of public nuisance to compel chemical testing. In contrast to conventional toxic tort litigation, which requires a showing of physical injury, the failure to test itself would constitute a public nuisance. Inadequate testing puts the public health at risk, and the resultant lack of information undermines the ability of governments and individuals to protect public health. In addition to explaining the basis for applying public nuisance doctrine to the failure to test, the Article also examines practical considerations relating to how courts would enforce the duty to conduct testing. INTRODUCTION I. THE PROBLEM OF TOXIC IGNORANCE A. Background B. Incentives Not to Test C. Tort Law Exacerbates the Ignorance Problem 1. The Duty to Test 2. Difficulties in Enforcing the Duty to Test D. TSCA Makes Matters Worse 1. TSCA Does Not Require Toxicity Testing 2. TSCA Creates Disincentives to Test 3. The HPV Challenge Program Has Done Little to Bridge the Data Gap II. ARTICULATING AN ENFORCEABLE DUTY TO TEST IN PUBLIC NUISANCE DOCTRINE A. Public Nuisance Doctrine B. Applying Public Nuisance Doctrine to the Failure to Test C. An Alternative Public Nuisance Theory Centered on the Right to Information D. Litigating Public Nuisance for Failure to Test E. Other Proposals 1. Liability Without Causation 2. Statutory Reform III. WHAT MIGHT A DUTY To TEST REQUIRE? A. Toxicity Testing Methods in General B. In Vitro and In Vivo Testing 1. In Vitro Methods 2. In Vivo Methods C. Applying the Duty to Test in Specific Instances CONCLUSION INTRODUCTION We live in a chemical soup. On a daily basis, each of us is exposed to hundreds of chemicals, the vast majority of which have been subject to little or no testing to determine whether they are toxic to humans or the environment? Many of these chemicals will turn out to be harmless, but others will have detrimental or even devastating effects that will become apparent only with the passage of time. The problem of toxic ignorance is widely recognized, yet legislatures, regulatory agencies, courts, and the chemical industry have done relatively little to address the problem. Without analyzing the risks posed by chemicals before they become widely distributed, it is difficult to determine the precautions that should be taken or the scope of any health and environmental problems that may result. Experiences in which we have discovered the hazards of chemical substances belatedly--ranging from asbestos to benzene to polychlorinated biphenyls (PCBs)--illustrate the potentially broad and serious consequences of toxic ignorance. (2) Uncertainty is a constant companion in scientists' efforts to understand the phenomena occurring around us, and the field of toxicology is no exception to that principle." (3) Rarely do we know as much as we would like to know about cause-and-effect relationships. Yet the level of toxic ignorance that surrounds us is not the inevitable result of the limits of scientific inquiry. Rather, it is the consequence of deliberate decisions by the chemical industry and by those who incorporate chemicals into their manufacturing processes to avoid testing that would identify at least some of the likely harms. …