Showing papers in "Washington Law Review in 2002"

Freedom’s Associations

Abstract: This Article offers a new approach to the protection of associations under the United States Constitution. Although the modern U.S. Supreme Court's doctrine of freedom of association is based on expression, in the early American Republic, associations were understood not in terms of free speech, but in terms of freedom of assembly and popular sovereignty. On this account, associations are constitutionally significant because they allow for self-government. Popular sovereignty also offers a more useful basis for understanding freedom of association today. This Article therefore provides tools for assessing the proper scope of constitutional protections for associations once they are understood in terms of popular sovereignty, and for evaluating governmental regulations of associational life. This Article shows that associations merit constitutional protection if they directly engage in political activities, or if they equip their members with politically relevant skills. This Article sorts out different kinds of associations and evaluates the proper scope of their associational freedom. With respect to the contentious issue of whether associations should be exempt from anti-discrimination laws, the popular sovereignty approach suggests that only small, member-intensive associations should be free to select their members without governmental interference. While mass-membership organizations like the Boy Scouts or even political parties may merit some constitutional protection, their significance to popular sovereignty does not depend on their exemption from laws prohibiting discrimination.

The Attribution Right in the United States: Caught in the Crossfire between Copyright and Section 43(A)

Abstract: The human impulse for attribution symbolizes the linkage between an author and her creative work. In many countries, authors are afforded a right of attribution as part of a broader doctrine known as moral rights. The United States, however, does not adequately protect moral rights. This Article focuses exclusively on the right of attribution as one component of the moral rights doctrine. Initially, it examines the connection between copyright law and the right of attribution and establishes the inadequacy of the current copyright law as a means of safeguarding the right of attribution. Next, it addresses why section 43(a) of the Lanham Act, which frequently has been hailed as a viable substitute for the right of attribution, is an inadeauate safeguard for the attribution interest. The underlying theme of this Article is that because United States' copyright law and section 43(a) are grounded in objectives other than the personality and non-monetary interests with which the right of attribution is concerned, the federal enactment of a right of attribution applicable to a broad category of copyrightable works is vital. The adoption of this approach is necessary for protecting fully the authorial interests that currently are insufficiently addressed under our legal system. Such explicit recognition for a right of attribution can be accomplished with a relatively minimal degree of controversy and disruption to our current legal fabric.

Use "The Filter You Were Born With": The Unconstitutionality of Mandatory Internet Filtering for the Adult Patrons of Public Libraries

Abstract: The only federal court (at the time of this writing) to consider the question ruled unconstitutional the mandatory filtering of Internet access for the adult patrons of public libraries. That 1998 decision helped the American Library Association and other free speech advocates fend off mandatory filtering for two years at the state and federal level, against the vigorous efforts of filtering proponents. Then, in 2000, the U.S. Congress conditioned federal funding of libraries on filter use, forcing the question into the courts as the latest colossal struggle over Internet regulation. This Article contends that the federal court in 1998 was right, and the Article counters criticism that has been leveled against that decision since. The public library is the quintessential venue for citizens to exercise their First Amendment right to receive information and ideas. As such, the library should be preserved against the imposition of automated content filters, which are too imprecise, and alternatively value-laden or arbitrary, to meet exacting constitutional safeguards.

Racketeering, RICO and the Revenue Rule in Attorney General of Canada v. R.J. Reynolds : Civil RICO Claims for Foreign Tax Law Violations

Abstract: When Congress passed the Racketeer Influenced Corrupt Organizations Act (RICO), it created a civil cause of action for any entity, including a foreign government, to recover for injury caused by a defendant's pattern of racketeering activity. However, Congress did not expressly indicate how the revenue rule, a conflict of laws doctrine that allows a court to decline to enforce a foreign government's tax claim or judgment, would relate to civil RICO claims. In Attorney General of Canada v. R.J. Reynolds Tobacco Holdings, Inc., the United States Court of Appeals for the Second Circuit held that the revenue rule barred Canada's civil RICO suit for lost tax revenues caused by R.J. Reynolds' extensive tobacco smuggling scheme. This Note argues that the revenue rule should not block Canada's civil RICO suit. The rationale for the revenue rule, the constitutional separation of powers principle, would not be implicated if the court were to hear the case. In addition, the majority opinion impermissibly expanded the revenue rule to restrict the scope of RICO because the rule had previously only applied to claims based on foreign tax laws. Between 1991 and 1997, R.J. Reynolds allegedly participated in an elaborate scheme to smuggle tobacco in contravention of Canadian tax laws.' In response, Canada brought a suit under the Racketeer Influenced Corrupt Organizations Act (RICO)2 to recover, inter alia, lost tax revenues and increased law enforcement expenses. A federal district court in the Northern District of New York dismissed Canada's suit for failure to state a claim The United States Court of Appeals for the Second Circuit affirmed.4 Specifically, the Second Circuit held that the revenue rule, which states that U.S. courts are not required to enforce foreign tax judgments,5 bars the claim because the RICO damages would be calculated based on lost revenues.6 Yet, had the plaintiff been New I. See Attorney Gen. of Can. v. R.J. Reynolds Tobacco Holdings, Inc. [hereinafter Reynolds I], 103 F. Supp. 2d 134, 137-38 (N.D.N.Y. 2000), affd [hereinafter Reynolds I], 268 F.3d 103, 10607 (2d Cir. 2001); United States v. Miller, 26 F. Supp. 2d 415,419 (N.D.N.Y. 1998) (criminal case). 2. 18 U.S.C. §§ 1961-1968 (1994). 3. Reynolds 1, 103 F. Supp. 2d at 144. 4. Reynolds II, 268 F.3d at 106. 5. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 413-14 (1964); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNrED STATES, § 483 (1987) [hereinafter RESTATMMENT]. 6. Reynolds 11, 268 F.3d at 106. Washington Law Review York State instead of Canada, the suit would have proceeded.7 After Attorney General of Canada v. R.J. Reynolds [hereinafter Reynolds I],' the Second Circuit denied Canada's petition for rehearing, and Canada filed a petition for certiorari to the United States Supreme Court.9 The illicit tobacco trade emanating from the U.S. has become a global problem. 0 In recent years, American tobacco companies have apparently smuggled cigarettes into Canada, the European Union, Ecuador, Honduras, Belize, and Colombia.1\" Following the Reynolds I decision, other civil RICO cases have been pursued, most recently in Florida.1 2 Thus, the issues presented in Reynolds II will likely be reconsidered in another circuit, if not in the U.S. Supreme Court. However, although RICO allows foreign states to assert claims to remedy racketeering injuries,13 the Reynolds II decision now effectively nullifies their cause of action if they seek to recover lost tax revenue in the Second Circuit.1 4 This Note argues that the Reynolds 11 court should have allowed Canada's civil RICO suit to proceed. Part I explains the scope and purpose of RICO. Part II describes the revenue rule's origins, the debate surrounding the rule's validity, and the present state of the rule in U.S. law. Part III details the facts, history, and rationale of Reynolds 11.15 Finally, Part IV argues that Reynolds II was wrongly decided for two reasons. First, the Second Circuit incorrectly found that the case presented a separation of powers problem, leading the court to inappropriately apply the revenue rule to block Canada's claim. Second, 7. See Missouri v. W.E.R., 55 F.3d 350, 357 (8th Cir. 1995) (State has a cause of action under civil RICO); United States v. Porcelli, 865 F.2d 1352, 1355 (2d Cir. 1988); 111. Dep't of Revenue v. Phillips, 771 F.2d 312, 313 (7th Cir. 1985) (finding that the government stated a claim for civil RICO for repeated mailing of false tax returns, a mail fraud violation). 8. 268 F.3d 103. 9. Attorney General of Canada v. R.J. Reynolds, 268 F.3d 103, petition for cert. filed, 35 U.S.L.W. 3580 (U.S. March 19, 2002) (No. 01-1317); see also Cristin Schmitz, U.S. Supreme Court Asked to Review Tobacco-Suit Dismissal, THE LAWYERS WEEKLY, March 22, 2002 at 19. 10. See generally Reynolds II, 268 F.3d at 103; Republic of Ecuador v. Philip Morris, 188 F. Supp. 2d 1359 (S.D. Fla. 2002); European Community v. Japan Tobacco, Inc., 186 F. Supp. 2d 231 (E.D.N.Y. 2002); European Community v. RJR Nabisco, Inc., 150 F. Supp. 2d 456, 460 (E.D.N.Y. 2001). 11. See generally Reynolds 11, 268 F.3d 103; Philip Morris, 188 F. Supp. 2d at 1359; Japan Tobacco, 186 F. Supp. 2d at 231; European Cmrty., 150 F. Supp. 2d at 460. 12. See Philip Morris, 188 F. Supp. 2d at 1359. 13. See Republic of the Philippines v. Marcos, 862 F.2d 1355, 1358 (9th Cir. 1988). 14. See Japan Tobacco, 186 F. Supp. 2d at 234. 15. Reynolds 1l, 268 F.3d at 106. Vol. 77:843, 2002 Attorney General of Canada v. R.J. Reynolds the Reynolds II court employed a novel expansion of the revenue rule that impermissibly restricted the scope of RICO. I. IN RICO, CONGRESS CREATED BROAD REMEDIES TO FIGHT RACKETEERING In 1970, Congress enacted RICO, 6 a remedial statute that provides both criminal penalties and civil remedies against defendants who participate in a pattern of racketeering activity. 17 The statute was a response to a two-decade investigation that revealed the enormous influence of organized crime on businesses, state and local governments, and labor unions.\" This widespread impact 9 lead Congress \"to seek the eradication of organized crime in the United States... by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.\"20 Culpability under RICO arises out of a preliminary three-step analysis: the defendant must have committed racketeering activity, the defendant's activity must amount to a pattern, and the defendant must thereby influence an enterprise engaged in interstate commerce.2' RICO defines racketeering activity by reference to specific state22 and federal criminal laws prohibiting extortion, embezzlement, mail fraud, wire fraud, obstruction of justice, securities fraud, money laundering, obscene materials, terrorism, and drug activity.23 To commit a pattern of racketeering, a defendant must have committed a minimum of two of the 16. 18 U.S.C §§ 1961-1968 (1994). 17. Id. 18. See THE ABA REPORT ON ORGANIZED CRIME AND LAW ENFORCEMENT 10 (1952-1953); PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 200-09 (1967); see also G. Robert Blakey, The RICO Civil Fraud Action in Context: Reflections on Bennett v. Berg, 58 NOTRE DAME L. REv. 237, 249 (1982). 19. Organized Crime Control Act of 1970, Pub. L No. 91-452, 84 Stat. 922, 923 (1970); 18 U.S.C. § 1961 (detailing RICO's history). The Statement of Findings and Purpose notes that \"organized crime in the United States is a highly sophisticated, diversified, and widespread activity that annually drains billions of dollars from America's economy by unlawful conduct and the illegal use of force, fraud, and corruption.\" Id. 20. S. REP. NO. 91-617, at 76 (1969). 21. 18 U.S.C. §§ 1961-1962; see also Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479,496 (1985). 22. State laws must be punishable by more than one year imprisonment. 18 U.S.C § 1961.