Volume 79, Number 6

December 2004

Defending Cyberproperty

Patricia L. Bellia

In this Article, Professor Patricia Bellia explores how the law should treat legal claims by owners of Internet-connected computer systems to enjoin unwanted uses of their systems. Over the last few years, this question has become increasingly urgent and controversial, as system owners have sought protection from unsolicited commercial e-mail and from”robots” that extract data from Web servers for competitive purposes. In the late 1990s and early 2000s, courts utilizing a wide range of legal doctrines upheld claims by network resource owners to prevent unwanted access to their computer networks. The vast weight of legal scholarship has voiced strong opposition to these “cyberproperty” claims, arguing that such property-rule protection would threaten productive uses of the Internet, inhibit innovation, or even create an anticommons.

This Article challenges the typical criticisms of property-rule protection, demonstrating that they are based on simplifications or false assumptions about the behavior of system owners and the nature of the Internet. Most importantly, scholars have overlooked the use of technical measures to block access, in conjunction with or in place of legal measures. The Article then lays out a wide range of potential legal rules for network resources, from absolute property-rule protection to a “technology displacing” approach that actually limits the technical barriers a system owner can impose, with a number of “loperty” rules–involving property-rule protection triggered by a system owner taking a particular measure–in between. After examining the existing case law, the Article agrees that courts’ recent trend toward a closed-access property-rule regime is inappropriate. Professor Bellia, however, demonstrates that attempts to preserve open access by rejecting any sort of property-rule protection are equally misguided. She points out that too-weak legal protection will prompt greater reliance on technical measures that mimic a property-rule approach, similarly limiting access. Yet, because technology lacks the flexibility and common sense exceptions inherent to legal application, the results for the community-at-large could be worse.

The Article concludes that entitling a system owner to property-rule protection so long as she provides the user with actual notice of permissible uses of the system or adopts a system configuration making it plain to the user that access is restricted would better balance the interests of consumers and system owners than rejecting property-rule protection outright. Although such an approach might be inappropriate in a limited class of cases–as, for example, when a system owner’s predominant motive for limiting access is anticompetitive in nature–Professor Bellia demonstrates that courts and legislatures can apply technology-displacing measures in such cases to achieve an appropriate legal balance.

Between Dialogue and Decree: International Review of National Courts

Robert B. Ahdieh

Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found a Mississippi jury trial to have been “the antithesis of due process.”

Much of the interaction of courts across national borders–including the citation of foreign legal authority, transnational coordination of complex litigation, and the enforcement of foreign judgments–has been analyzed through the metaphor of “dialogue. ” As suggested by the Loewen case, however, there is a growing pattern of interaction between international tribunals and national courts for which dialogue is an ill-suited analogy. Contrary to conventional expectations of incapacity and restraint in international adjudication, recent interactions between international tribunals and domestic courts incorporate a significant dimension of “review” in both a literal and a figurative sense. Although such review is not appellate in nature, it shares with appellate review some potential to effectuate its mandate without the consent of the court subject to review. This dimension of “power” further distinguishes emerging cases of international review from transnational dialogue. Standing between the hierarchy of appellate review and the comity of judicial dialogue, Loewen and similar occasions for international engagement with national courts represent a distinct pattern of judicial interaction, one I develop and detail as “dialectical review.”

Defined broadly as a hybrid of appellate review and dialogue, the nature of dialectical review can be elaborated by examining other hybrid judicial interactions–federal habeas review of state criminal convictions and appellate courts’ use of dicta as a signaling device to lower courts. In each of these cases, a form of dialectical review serves as a mechanism of legal innovation. In the face of accelerating trends of globalization, a pattern of dialectical review between international and national courts can help to facilitate the emergence, evolution, and internalization of universal norms of due process. The present analysis thus offers international and domestic judges, as well as policymakers, a framework for understanding and facilitating beneficial judicial interaction in an ever-shrinking world.


Unilateralism and Constitutionalism

Jed Rubenfeld

This Essay explores American unilateralism and the divergence between American and European attitudes toward international law. The United States, Professor Rubenfeld shows, has always displayed unilateralist tendencies. Since 1945, however, while Europe has grown ever more internationalist, the United States has spoken out of both sides of its mouth, acting both as a world leader in forging the new international order and as the world’s chief locus of resistance against that order. To understand this phenomena, Professor Rubenfeld argues, it is crucial to distinguish between two conceptions of constitutional law. “Democratic constitutionalism” sees constitutional law as the foundational law a particular polity has given itself through a special act of popular lawmaking. “International constitutionalism” sees constitutional law not as an act of democratic self-government, but as a check or restraint on democracy, deriving its authority from its expression of universal rights and principles that transcend national boundaries. The international charters and institutions that emerged after the Second World War were built on the premises of international constitutionalism. This development was broadly acceptable among elites in Europe, where World War II had come to exemplify the potential horrors of both nationalism and democracy. As a result, the true challenge international law’s supporters face today is that the existing international governance institutions are not only antinationalist, but antidemocratic–and not by accident, but by structure and design. To this extent, America, with its longstanding commitment to democratic constitutionalism, does in fact have good reason to resist international governance today. Drawing on this conclusion, Professor Rubenfeld suggests principles that could guide U.S. relations to international governance regimes, showing the kinds of international law that America could embrace without compromising its commitment to self-government.


The Trials and Tribulations of Petty Offenses in the Federal Courts

Mary C. Warner

Only one rule of criminal procedure applies to the trial of alleged petty offenders in federal court. This rule establishes a baseline for the trial of petty offenders. However, district courts implement that baseline in many diverse ways. The procedures vary dramatically, and there is little or no information available to defendants in order to prepare them for court. Court-appointed counsel is provided in very few cases. In this Note, Mary Warner examines the systemic problems with the current procedures governing the trial of alleged petty offenders. With the limited information available on how petty offenses are tried in various districts, she first surveys district court procedures. Based on the application of procedural rules in the various district courts, she then analyzes how current practices fall short of constitutional norms and efficient best practices.

Toward the Recognition and Enforcement of Decisions Concerning Transnational Parent-Child Contact

Marguerite C. Walter

Currently there is no broadly applicable international legal instrument that protects ongoing contact between noncustodial parents and their children across national borders. Although the Hague Convention on the Civil Aspects of International Child Abduction provides strong protection for rights of custody, it grants relatively weak protection for rights of contact. This absence of protection for rights of contact both undermines the goal of preventing abduction and leaves unresolved the question of how to ensure the continuity of relationships between noncustodial parents and their children. In particular, parents and courts involved in relocation cases have no assurance that orders for visitation and other forms of parent-child contact will be fully recognized and enforced once the residence parent and child have relocated. In this Note, Marguerite C. Walter argues that a protocol providing for the recognition and enforcement of contact decisions by states adhering to the Abduction Convention would provide a relatively simple and immediate solution to the problem. Such a protocol would provide for the automatic recognition and enforcement of contact decisions when certain criteria are met. The most important of those criteria would be that the order emanate from the authorities of the child’s habitual residence no earlier than six months to one year prior to the recognition request, and that all parties have been given the opportunity to be heard in the original proceeding. In addition, the protocol should provide for interjudicial communication, a strictly construed emergency exception to mandatory recognition and enforcement, and specific sanctions for failure to recognize and enforce a contact decision meeting the criteria set forth.

Three Angry Men: Juries in International Criminal Adjudication

Amy Powell

To date, no international criminal tribunal has seriously considered using a jury trial. In the International Criminal Court (ICC), for example, a panel of judges appointed by the Assembly of States Parties acts as the fact finder. In this Note, Amy Powell examines the theoretical justifications for a jury in the context of international criminal adjudication. She concludes that the use of a jury–or, at a minimum, the integration of the important values underpinning the institution of the jury–would greatly benefit the ICC by protecting important principles of justice.

Circumventing the National Environmental Policy Act: Agency Abuse of the Categorical Exclusion

Kevin H. Moriarty

The National Environmental Policy Act (NEPA), the nation’s seminal environmental-protection legislation, has affected tremendously the course of executive-agency decisionmaking. Its broad, ambiguous mandate that agencies consider the potential environmental impact of agency decisions has been interpreted aggressively to require thorough analysis of environmental factors and also that those considerations guide the ultimate conclusions of the decisionmaking process. The demanding analytic requirements, such as the environmental impact statement and the environmental assessment, are recognized to be a significant burden on the resources of executive agencies. Consequently, the agency charged with administrating NEPA has urged executive agencies to promulgate categorical exclusions–categories of actions that are exempted from traditional NEPA analysis due to their repetitive nature and the predictability of their limited environmental impact. This NEPA exception has steadily broadened and invited agency abuse to avoid the burdens of NEPA requirements and the scrutiny of environmental advocacy groups. The resulting litigation brought by advocacy groups to hold these agencies accountable has been expensive and time-consuming. In this Note, Kevin Moriarty explores the history of categorical exclusions and discusses past efforts to remedy potential abuses of agency discretion. The most recent incarnation of categorical exclusions includes a set of burdensome analytic requirements designed to counteract potential abuses that could result from the increased discretion provided in modern categorical-exclusions regulations. In this Note, Moriarty argues that if categorical exclusions were limited to their original form, fewer actions would be excluded, but the actions actually excluded would be protected from challenges through litigation. This Note concludes that the resulting loss of agency discretion through use of broad categorical exclusions would likely increase overall efficiency in agency decisionmaking.

The Unwarranted Regulatory Preemption of Predatory Lending Laws

Nicholas Bagley

In response to a perceived increase in the incidence of predatory lending, several states have recently enacted laws designed to protect vulnerable borrowers from abusive lenders. Earlier this year, however, the Office of the Comptroller of the Currency (OCC) determined that the new laws conflicted with the National Bank Act and issued a regulation preempting them. This Note argues that the OCC overstepped its congressionally delegated authority when it promulgated the regulation, and that courts should consequently invalidate it in order to allow states to continue to develop novel legislative responses to the growing problem of abusive lending. The Note proceeds in two stages. First, after canvassing the unsettled case law on the issue, it argues that courts should not categorically defer to agency decisions to preempt state laws. Because of the relative ease with which administrative agencies can preempt state laws and the real threat that preemption orders pose to state legislative independence, the judiciary should scrutinize agency preemption decisions to ensure that they are at the very least reasonable. Second, the Note turns to the substance of the OCC order, contending that it reflects an unwarranted, unnecessary, and unwise effort to meddle in states’ purely internal affairs. Because the predatory lending laws only minimally affect national bank lending powers, do not impose costs on the national banking system, and do not generate spillover effects, they do not interfere with national banks in a way that can justify the OCC’s wholesale preemption.