Volume 80, Number 1

How War Affects Only Non-War Cases

Does the U.S. Supreme Court curtail rights and liberties when the nation’s security is under threat? In hundreds of articles and books, and with renewed fervor since September 11, 2001, members of the legal community have warred over this question. Yet, not a single large-scale, quantitative study exists on the subject. Using the best data available on the causes and outcomes of every civil rights and liberties case decided by the Supreme Court over the past six decades and employing methods chosen and tuned especially for this problem, our analyses demonstrate that when crises threaten the nation’s security, the justices are substantially more likely to curtail rights and liberties than when peace prevails. Yet paradoxically, and in contradiction to virtually every theory of crisis jurisprudence, war appears to affect only cases that are unrelated to the war. For these cases, the effect of war and other international crises is so substantial, persistent, and consistent that it may surprise even those commentators who long have argued that the Court rallies around the flag in times of crisis. On the other hand, we find no evidence that cases most directly related to the war are affected.

We attempt to explain this seemingly paradoxical evidence with one unifying conjecture. Instead of balancing rights and security in high stakes cases directly related to the war, the justices retreat to ensuring the institutional checks of the democratic branches. Since rights-oriented and process-oriented dimensions seem to operate in different domains and at different times, and often suggest different outcomes, the predictive factors that work for cases unrelated to the war fail for cases related to the war. If this conjecture is correct, federal judges should consider giving less weight to legal principles established during wartime for ordinary cases, and attorneys should see it as their responsibility to distinguish cases along these lines.

Reconsidering the Evolution of Private Property

One of the most enduring questions about private property is why it develops. Strongly influenced by a short article by economist Harold Demsetz, property scholars recently have analyzed the evolution of private property in economic and social terms, and described it as a response to factors such as changes in relative prices, measurement costs, and the size and heterogeneity of user groups. In this Article, Professor Katrina Wyman argues that Demsetzian-inspired accounts of the evolution of private property tend to neglect the role of the state in property rights formation. Building on the extensive scholarship about the evolution of property rights, she emphasizes the need to take seriously the implications of the political process by which private property often is formed.

To underscore her theoretical argument about the evolution of private property, Wyman also offers a case study of contemporary property rights formation. For over six decades, an international movement has been underway to enclose the oceans, including marine fisheries. Drawing on original research, Wyman examines why individual transferable quotas and similar instruments have been slow to develop in U.S. coastal fisheries in federal waters since national jurisdiction over fisheries was extended to 200 miles from the shore in 1976.

In closing, Wyman underscores the richness of Demsetz’s pioneering account of private property and the scholarship that it has spawned. But she also suggests that there remains a large gap between how private property actually evolves and many of the prevailing theoretical understandings of the development of property rights. She argues in turn that filling this gap requires the development of a more robust positive theory of the evolution of private property that takes into account the political process through which private property often is formed, and more systematic empirical research into the development of property rights.

A New Test for the Locally Inapplicable Standard

Ever since Puerto Rico was acquired by the United States following the Spanish-American War, Congress and the courts have struggled with applying federal law to the island. Puerto Rico has been treated alternately as a state, territory, or something in between for purposes of federal law since the island became a commonwealth in 1952. In this Note, Elizabeth Vicens argues that in determining whether a federal statute should apply to Puerto Rico, in the absence of a clear statement by Congress, courts should inquire whether the law contradicts an overriding local interest. This test is based on the language of the Puerto Rican Federal Relations Act, which states that federal laws that are “not locally inapplicable” shall be applied to the island. After supporting the proposed model of statutory interpretation, Vicens applies the test to a recent controversial application of federal law to Puerto Rico: the application of the Federal Death Penalty Act. Vicens argues that under her model, the First Circuit should not have applied the Federal Death Penalty Act in United States v. Acosta-Martinez. The Note concludes that this test will aid Congress and the courts in a murky area of law, as well as help to improve U.S.-Puerto Rican relations.

Coalitional Districts, Party Primaries and Manageable Vote Dilution Claims

In the past two decades, minority plaintiffs claiming unlawful vote dilution under section 2 of the 1965 Voting Rights Act have been required to pass the three-pronged test elaborated by the Supreme Court in Thornburg v. Gingles. In light of a recent Supreme Court case extolling coalitional districts, the future of the first prong requiring the minority bloc to demonstrate it is sufficiently large and compact to comprise a majority of a single-member district is uncertain. These districts, eluding easy classification but understood to possess significant minority voting power without the minority bloc comprising a majority of the district, have been identified as shields against section 2 and section 5 suits challenging redistricting maps that reduced the number of majority-minority districts. In this Note, Luke McLoughlin addresses how courts should approach section 2 claims by minority blocs claiming dilution of a coalitional district itself. Arguing that Gingles‘s framework of bright lines must be respected in any reconsideration of the first prong, McLoughlin identifies the ability of the minority bloc to comprise a numerical majority of a party primary as a potential criterion for defining coalitional districts and a potential benchmark for considering section 2 claims. As McLoughlin shows, however, such a criterionwould be difficult to apply in practice,as internal party rules and state ballot access laws may thwart the creation of a viable coalition. Accuracy requires a fact-based inquiry into the coalition, while Gingles urges a bright-line approach. Eschewing a wholesale renovation of the Gingles framework, McLoughlin concludes that the two countervailing concerns are best reconciled by relying on Gingles‘s latter two prongs and examining population within the primary, while remaining skeptical at the totality-of-the-circumstances stage of whether a true coalition has been formed. If courts alter the first Gingles prong to permit claims by minority blocs unable to comprise a majority in a district, McLoughlin concludes that courts must retain a corresponding alertness to the interstitial role of parties, which are capable of both facilitating and obstructing coalition politics.

A New Judicial Remedy for Defective Agency Rulemakings

Once the D.C. Circuit has concluded that a rule promulgated by an agency is in some way arbitrary or capricious, the court has at least two options: It can either vacate the rule, or remand it to the agency without vacating it. In the latter case, the agency can continue to implement the challenged rule while revising its explanation to address the defects identified by the court. This Note analyzes the D.C. Circuit’s application of the remand-without-vacatur (RWV) remedy during the decade since the court articulated a generic test for its use. This Note argues that RWV is most justified in cases where the costs of vacating agency rules are particularly high, and where the benefits in terms of improving the agency’s decisionmaking process are minimal or nonexistent. Based on a survey of the rulemaking cases in which the court has applied RWV, this Note argues that while the test that the D.C. Circuit uses to determine the appropriateness of RWV is consistent with the theoretical underpinnings justifying the remedy, the court’s application of that test is frequently flawed. This Note also documents a response to RWV that is less than ideal; agencies generally respond slowly to RWV judgments, and occasionally do not respond at all. The Note concludes that, while the D.C. Circuit possesses adequate tools to counteract agencies’ tendency to ignore judicial decisions in individual cases, it has employed them too sparingly in recent years. This Note then develops a revised approach that would promote the remedy’s beneficial aspects while limiting its negative effects.

The Red Cross, War Correspondents, and Evidentiary Privileges in International Criminal Tribunals

The International Committee of the Red Cross operates according to a policy of confidentiality, which it claims is necessary for it to carryout its humanitarian mandate successfully. The International Criminal Tribunal for the former Yugoslavia found that, as a matter of customary international law, the Red Cross is permitted to maintain its confidentiality policy at all times. This means that delegates of the Red Cross cannot be called to testify in any international criminal tribunal unless the Red Cross waives its privilege. Based on similar arguments about their need for confidentiality, however, war correspondents were granted a much more qualified privilege against testifying. In this Note, Emily Berman argues that Red Cross delegates and war correspondents are more similarly situated than it initially might seem. The Note uses a comparison of the two as a case study to illustrate that conferring absolute privilege on the Red Cross is unnecessary in the pursuit of humanitarian accountability. Therefore, international criminal tribunals should articulate a narrow, uniform test for privilege that applies to both the Red Cross and war correspondents. Under this test, in which the court retains the final decisionmaking power over who must testify, reluctant witnesses from both groups would be required to present confidential materialto the court when the information in their possession both goes to a core issue in the case and is not available from any other source.