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Amplifying Voices and Fighting Impunity: A Case for Incorporating Victim Impact into Early Release Decisions at the International Residual Mechanism for Criminal Tribunals
Get PDFReanimating the Foreign Compacts Clause
Get PDFOn October 23, 2019, the United States Department of Justice (“DOJ”) filed a complaint against the State of California “for unlawfully entering a cap and trade agreement with the Canadian Providence of Quebec.” In many ways, the complaint reflects a conventional disagreement between states and the federal government over the contours of federalism, but the complaint’s second cause of action, alleging a violation of the “Compacts Clause,” Article I, section 10(3) of the United States Constitution, is unique. The body of law and scholarship surrounding the Compacts Clause is often guesswork at best, for jurists and scholars alike, because typically states’ practice is not to seek congressional consent, and Congress’s, to rarely consider granting or denying it. Further, Congress has only explicitly rejected one state-made compact in its history.
Federal litigation challenges to agreements made by states are even more uncommon. While still limited, the vast majority of litigation is initiated by private parties. And when Congress does consider compacts made by states (also de minimis), they usually concern agreements made between two or more states, referred to as “interstate” agreements. A truly rarified species, though, is a direct federal legal challenge to an agreement under the second group in the Compacts Clause, concerning compacts made between states and foreign governments, referred to as “foreign state agreements” (“FSAs”).
Article I, section 10 of the United States Constitution directs, “no State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State, or foreign Power.” While the body of law and scholarship concerning both interstate agreements and FSAs is limited, authors have not unreasonably assumed that the test for interstate agreements, originating from Virginia v. Tennessee, applies to FSAs as well, but the Supreme Court has never explicitly held so.
While Article I, section 10 is parallel in construction for both types of agreements, the potential harm each type of agreement poses is actually quite different. Therefore, the courts should see not one unitary Compacts Clause, but two: the more developed interstate Compacts Clause and the less well-defined “Foreign” Compacts Clause.
Positive or negative federal action under the Foreign Compacts Clause, either by Congress or the President, is so rare that most scholars accurately describe the Foreign Compacts Clause as having “fallen into desuetude.” Professor Sharmila Murthy, in her analysis of the suit, quickly dismisses the strength of DOJ’s Compacts Clause argument, asserting that, under the single Compacts Clause theory, “[m]ost experts believe that the functional test developed for interstate compacts applies to cross-border agreements.” Murthy concludes that the President “does not have the constitutional authority to end the Cap-and-Trade Agreement with Quebec.” The District Court agreed on both counts, as argued by both the State of California, as well as amici, Judge William Shubb, in his March 12, 2020, ruling, which adopted this commonly advanced view of a singular compacts clause, with the test from Virginia and its progeny controlling. But before reaching that conclusion, Judge Shubb concluded that the “agreement” was not a compact, stating “‘classic indicia’ . . . from Northeast Bancorp are missing.” Later, in separate motions, Judge Shubb further dismissed the DOJ’s arguments, finding the Cap-and-Trade Agreement did not violate Foreign Affairs Doctrine preemptions. For the sake of the current matter, California’s attempt to do something in the face of the disjointed, ineffective federal response to climate change, the result appears desirable, but I am skeptical that the current Supreme Court will take a similar view, or that the result is most favorable where unified national (not to mention international) action is required.
While likely apocryphally attributed to the eminently quotable Yogi Berra, it remains true that “it’s tough to make predictions, especially about the future.” However, if the current litigation reaches the Supreme Court, it seems likely that the Court will reanimate the disused requirement of congressional consent and find the current agreement between California and Quebec to be violative of the Foreign Compacts Clause. Strong textual arguments will be appealing to the current Court. Likewise attractive is the expansive view of the President’s power in foreign affairs, possible federal preemption in the form of environmental protection legislation, and the distinguishability of precedent for interstate agreements from FSAs. The current Court is unlikely to adopt a rule that is so clearly the opposite of the words in the Constitution. The upcoming presidential election will affect whether the federal government appeals. For now, the DOJ is “considering [their] next steps.”
If appealed, the current litigation should force answers to a number of important questions the Supreme Court has left unresolved: 1) Has federal inaction led the Foreign Compacts Clause to lose all (or almost all) of its meaning?; 2) Is there a separate standard for interstate agreements versus FSAs?; and, 3) If there is a separate standard, what should it be?
While certainly in overwhelming disuse, both congressional powers to approve or disapprove compacts made by states, and the executive’s ability to challenge agreements that encroach on presidential powers, are available to both Congress and the President. Congress clearly retains the power to disapprove agreements. But the President should be able to successfully challenge agreements that encroach upon plenary powers of the President, as well as agreements that infringe on authorities delegated to the executive by Congress. Delegation by Congress should function as disapproval of the agreement and be viewed as a form of federal preemption. Finally, California most likely has the ability to moot the current litigation by executing a new “understanding” with Quebec that would be without any legal effect, a mere political commitment that would neither purport to constrain the parties nor infringe on federal powers and thereby not implicate the Compacts Clause while still meeting California’s intent, namely reducing carbon emissions in both California and Quebec
Partisan Shift in En Banc Appeals Courts Since Trump
No full textNeal Devins, a Professor at William & Mary Law School, discusses his study with Professor Allison Or[r] Larson, Weaponizing En Banc, which shows a dramatic spike in partisan splits and partisan reversals when appeals courts sit en banc, since the Trump presidency. June Grasso hosts
Who Will Save the Redheads? Towards an Anti-Bully Theory of Judicial Review and Protection of Democracy
Get PDFDemocracy is in crisis throughout the world. And courts play a key role within this process as a main target of populist leaders and in light of their ability to hinder administrative, legal, and constitutional changes. Focusing on the ability of courts to block constitutional changes, this Article analyzes the main tensions situated at the heart of democratic erosion processes around the world: the conflict between substantive and formal notions of democracy; a conflict between believers and nonbelievers that courts can save democracy; and the tension between strategic and legal considerations courts consider when they face pressure from political branches.
Using comparative examples, the Article demonstrates how courts can indeed function as a useful stop sign or speed bump against attempts to erode the constitutional order. Since a central feature of democratic erosion is court-capturing, -packing, or -threatening, this Article builds on anti-bully theories to propose an “anti-bully theory of judicial review,” which posits that the judiciary should neither go down the bunker nor retaliate the confrontation but try, as much as possible, to act as though everything is “business-as-usual.”
At its core, this Article argues that courts have an important role in protecting democracy against constitutional reforms eroding the constitutional order and that courts should stand firm against pressure so they can do their best to protect democracy, even if they cannot save democracy on their own
Unduly Burdening Abortion Jurisprudence
Get PDFThe undue burden standard is the current test to determine whether abortion regulations pass constitutional muster. But the function, meaning, and application of that test have varied over time, which undercuts the test’s usefulness and the ability of legislatures to know which regulations pass constitutional muster. Even more confusing, the Court has refused to apply the test in light of its express terms, which cannot fail to yield surprising conclusions and undercut confidence in the Court. The Court must not only clarify what the test means and how it is to be used, but must also formulate that test so that it accurately conveys the conditions under which regulations will be upheld. Otherwise, the Court will not only continue to mislead the country about the content and breadth of abortion rights, but will also further convince the populace that the Court is simply set on promoting a political agenda.
Part I of this Article discusses how the term “undue burden” was used and what it meant in several cases preceding Planned Parenthood of Southeastern Pennsylvania v. Casey. Part II discusses how the undue burden test was construed in Casey and subsequent cases, noting some of the internal inconsistencies in the Court’s approach. The Article concludes that, unless the Court clarifies what the test is and then applies it consistently, courts and state legislatures will continue not to understand what the Constitution requires, and the Court will not only continue to be criticized both by those favoring and those disfavoring abortion rights but will also continue to undermine public confidence in the Court’s impartiality
Deepfakes: A New Content Category for a Digital Age
Get PDFTechnology has advanced rapidly in recent years, greatly benefitting society. One such benefit is people’s ability to have quick and easy access to information through news and social media. A recent concern, however, is that manipulated media, otherwise known as “deepfakes,” are being released and passed off as truth. These videos are crafted with technology that allows the creator to carefully change details of the video’s subject to make him appear to do or say things that he never did. Deepfakes are often depictions of political candidates or leaders and have the potential to influence voter choice, thereby altering the outcome of elections. Deepfakes have already influenced the politics of other countries, and lawmakers expressed legitimate fears about how deepfakes would affect the 2020 United States presidential election.
The current unprotected categories of speech developed during a more primitive technological age. Efforts have been made to combat deepfakes, but they have fallen short of effectively attacking the problem. It may be time for the Supreme Court to reevaluate First Amendment protections in light of the current digital age and consider the benefits of adding a new unprotected content category of speech for deepfakes. The dangers deepfakes present far outweigh the concerns of the potential chilling effects from restrictions on speech. Even though the Court has rejected arguments for new categories of unprotected speech in recent years, deepfakes should ultimately constitute a new content category because of the dangers they pose to the election process and political systems; the “marketplace of ideas” fails to combat their falsity
Pernicious Loyalty
Get PDFFiduciary loyalty is generally considered valuable, and in the usual case it is. Yet some of the very features of loyalty that make it valuable also encourage behaviors harmful to beneficiaries, third parties, or society as a whole. Examples include the corporate director whose concern with shareholder wealth maximization leads to considerable environmental harm and the skillful attorney whose zealous representation undermines justice between the parties. In short, actions that are motivated by good-faith fiduciary loyalty may be undesirable in individual cases. I will describe such cases as cases of pernicious loyalty. Outside the law, pernicious loyalty is often limited by features of extralegal loyalty itself. For example, the “alarm bells” that Philip Pettit describes as a trigger for moral reasoning may help constrain otherwise harmful loyalty between friends. Unfortunately, such responses do not always translate well to legal settings. This Article will consider the nature of pernicious loyalty together with potential legal responses to its excesses
Drilling for Admiralty: The OCSLA as a Bar to Maritime Law in OCS Drilling Accidents
Get PDFMaritime law is ultimately driven by commerce. The seas were—and continue to be—one of the easiest ways to transfer goods over large distances. Yet maritime commerce has a relative newcomer that is not shipping or transportation focused—offshore drilling. Should admiralty and maritime law, intended to protect seamen and keep ships engaged in maritime commerce apply to personal injury claims on drilling rigs on the Outer Continental Shelf? This Note argues that they should not apply for two reasons. In Lozman v. Riviera Beach, the Supreme Court announced that a “vessel” should appear to the reasonable observer as intended to carry a person or things over water. Because a maritime tort requires a “vessel,” and the Lozman definition thereof suggests that drilling rigs are not “vessels,” admiralty and maritime law generally cannot apply to torts on drilling rigs. Moreover, Congress was explicit in the Outer Continental Shelf Lands Act that structures engaged in drilling were to be treated as enclaves of federal law in some “upland state.” Because the OCSLA is clear that it intends federal law such as the Long Shore Harbor Worker Compensation Act to apply to drill platform workers, admiralty and the general maritime law should not apply to drilling-related torts occurring on such rigs
Accelerating the Gains of the Free Maternity Care in Kenya\u27s Urban Informal Settlements
Get PDFThe 2010 Constitution of Kenya recognizes the special group of women living in urban informal settlements, and provides for their access to the highest attainable standards of health care, including reproductive health care. The Health Act, which was enacted in 2017, recognizes the significant challenges of accessing maternal health services among the poorest populations. Pursuant to the resolutions of the African Union, the Health Act abolished user fees for pregnant women. The Health Act instructs the county and national governments to expand free maternity care and childhood immunizations through funding. Despite Kenya’s commitment to increase the national budget for health care to 15% of the gross domestic product (GDP), the budgetary allocation for free maternity services has not increased over the years.
Therefore, for the Health Act provision requiring free maternity care to be meaningful for women living in urban informal settlements, and improve their birth outcomes, the county and national governments must increase funding for basic medical facilities, essential health supplies and staffing needs in these areas. There are currently no adequate legal and policy frameworks for increasing maternal health care funding and accelerating the impact of the free maternity services program on maternal health outcomes in Kenya’s urban informal settlements.
In this Article, I propose that the national and county governments must increase funding for basic medical facilities, supplies and staffing at the county level to improve maternal health outcomes for the women living in urban informal settlements. The first part of this Article will describe the current state of the urban informal settlements. The second part will examine the state of maternal health care in Kenya’s urban informal settlements. The third part will explore the governance structure for implementing the right to maternal health care in Kenya. The fourth part will explore the existing legal frameworks that promote the right to maternal health care in Kenya. The fifth part will provide recommendations for improving maternal health care in Kenya’s urban informal settlements
Marriage Mandates: Compelled Disclosures of Race, Sex, and Gender Data in Marriage Licensing Schemes
Get PDFThis Note argues that mandatory disclosures of personal information—specifically race, sex, and gender—on a marriage license application constitute compelled speech under the First Amendment and should be subject to heightened scrutiny. Disclosing one’s race, sex, or gender on a marriage license application is an affirmative act, and individuals may wish to have their identity remain anonymous. These mandatory disclosures send a message that this information is still relevant to marriage regulation. Neither race nor gender is based in science; rather they are historical and social constructs created to uphold a system of white supremacy and heteronormativity. Thus, such statements are not facts which ought to be compelled by the government, particularly within the sphere of marriage, which falls within the penumbra of privacy under the Bill of Rights. These statutes should be struck down as unconstitutional. At a minimum, states should follow Hawaii’s lead to make these disclosures optional. Even better, similar to California, states can eventually explicitly forbid the government from collecting this information on marriage license applications at all