Volume 74, Number 6

December 1999

Compulsion “To Be a Witness” and the Resurrection of Boyd

Richard A. Nagareda

For more than a century, judges and commentators have sought to determine the proper meaning of the Self-Incrimination Clause of the Fifth Amendment . Although the Supreme Court during this period has expanded dramatically the scope of protection afforded by the Clause with regard to self-incriminatory oral statements, the Court has retreated steadily from its 1886 decision in Boyd v. United States, which had provided full-scale constitutional protection to self-incriminatory documents. In this Article Professor Nagareda draws upon the text of the Fifth Amendment, the content of related constitutional guarantees, and recent scholarship on the history of the privilege against self-incrimination to argue for a revival of the Fifth Amendment holding of Boyd. He concludes that the constitutional prohibition upon compulsion of a person “to be a witness” against himself is best understood as synonymous with the bar upon compulsion of a person “to give evidence” against himself found in state sources contemporaneous with the framing of the Bill of Rights. Such a reading not only supports the holding of Boyd but, more broadly, serves to clarify the relationship between the Fifth Amendment (as a categorical ban against the compelled giving of incriminatory evidence) and the Fourth Amendment (as a regulation of the unilateral taking of such evidence by government agents). At the same time, Professor Nagareda’s reading serves to underscore the textual support for much of modem self-incrimination jurisprudence including, most significantly, the use immunity doctrine.

Toward Optimal Environmental Governance

Daniel C. Esty

Better environmental results depend less on fine tuning theories of environmental federalism than on improving regulatory performance. Simply put, how we regulate is more important than where we regulate. Current environmental policy efforts fall short for a number of reasons: technical and information shortcomings, “structural” or jurisdictional mismatches, and public choice distortions. In this Article, Professor Daniel Esty argues that a theory of optimal environmental governance must seek to address each of these sources of regulatory failure.


Letting the Master Answer: Employer Liability for Sexual Harassment in the Workplace After Faragher and Burlington Industries

Justin P. Smith

In two recent Supreme Court cases, Faragher v. City of Boca Raton and Burlington Industries v. Ellerth, the Court clarified the standard by which employers are held liable for sexual harassment committed by their employees. In this Note, Justin Smith analyzes these decisions and concludes that the Court moved the law in the right direction by resolving conflicting and convoluted agency doctrines applied by the lower courts, by imposing strict liability on employers for all sexual harassment by supervisors, and by allowing a contributory negligence defense for employers in some circumstances. However, he argues that the new liability regime, in which liability standards vary depending both upon the type of harassment and upon the relative positions of harasser and victim in the employment hierarchy, is less than ideal Applying an economic understanding of causation, the author finds no sound basis for varying liability standards. Instead, he proposes a uniform regime of strict vicarious liability on employers for all sexual harassment by their employees, coupled with an extension of the contributory negligence defense to all sexual harassment cases.

Indigenous Peoples and the International Environmental Community: Accommodating Claims Through a Cooperative Legal Process

Rupta Gupta

For centuries, the Inuit peoples of the Arctic region have relied on whale hunting for physical sustenance, and the hunt serves as the central ritual of their culture. During the past century, however, commercial overhunting has seriously endangered whale populations, and environmentalists have taken up their cause, pushing for a moratorium on whale hunting. While the Inuits are sometimes granted a narrow exception to the regulations, their hunting rights are constantly under attack by those who fear that any hunting at all will drive the whales into extinction. In this Note, Rupa Gupta argues that the conflict between the rights of whales and of the Inuit is a false one and is based on Eurocentric notions of individual rights. She demonstrates how both the whales and the Inuit culture are endangered by commercial whaling and presents Inuit notions of social and environmental interdependence as an alternative interpretive framework to that of individual rights. Finally, she suggests that Inuits and other indigenous peoples be included in the international institutions and scientific communities that control the dialogue on environmental management.

The Unconstitutionality of Nonuniform Immigration Consequences of “Aggravated Felony” Convictions

Iris Bennett

In this Note, Iris Bennett analyzes the “aggravated felony” provision of the Imimigration and Nationality Act, which requires the deportation of noncitizens convicted of a number of crimes under federal or state law. Bennett discusses the implications of the provision in light of the Constitution’s Naturalization Clause, which requires a “uniform Rule.” She argues that the aggravated felony provision, as amended in 1996 by the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act, results in nonuniform immigration consequences for state criminal convictions because of varying state standards and definitions. After surveying courts’ treatment of the constitutional provisions for uniformity in immigration, taxation, and bankruptcy law, Bennett demonstrates that the jurisprudence of the uniformity requirement in immigration law is in need of further elaboration. She argues that the Naturalization Clause requires that the operation of immigration law not vary based on differences in state law and proposes a doctrinal model of constitutional uniformity for courts confronting this issue.

Digital Sampling and the Recording Musician: A Proposal for Legislative Protection

Christopher D. Abramson

In this Note, Christopher Abramson argues that Congress should create a statutory property right for musicians whose work is sampled or reused by other recording artists. Abramson examines the technological changes and business arrangements within the recording industry that necessitate this protection. He discusses the inadequacy of existing remedies such as contract and copyright law. Abramson also shows how the existing collective bargaining agreement between the American Federation of Musicians and the record companies fails to address adequately the problems associated with digital sampling. He concludes by calling for the enactment of legislation requiring record companies to compensate musicians whose work is appropriated by sampling.