Volume 86, Number 5

November 2011

The Other Loving: Uncovering the Federal Government’s Racial Regulation of Marriage

Rose Cuison Villazor

This Article seeks to fill a gap in legal history. The traditional narrative of the history of the American racial regulation of marriage typically focuses on state laws as the only sources of marriage inequality. Overlooked in the narrative are the ways in which federal laws also restricted racially mixed marriages in the decades before 1967 (when the Supreme Court invalidated antimiscegenation laws in Loving v. Virginia). Specifically, during the American occupation of Japan after World War II, a combination of immigration, citizenship, and military laws and regulations led to restrictions on marriages along racial lines. These laws also converged to prevent married couples, many of whom were White American soldiers and local Japanese women, from living in the United States together. Accordingly, this Article claims that the confluence of immigration, citizenship, and military laws functioned as a collective counterpart to state antimiscegenation laws.

Sorting Guilty Minds

Francis X. Shen, Morris B. Hoffman, Owen D. Jones, Joshua D. Greene, Rene Marois

Because punishable guilt requires that bad thoughts accompany bad acts, the
Model Penal Code (MPC) typically requires that jurors infer the mental state of a
criminal defendant at the time the crime was committed. Specifically, jurors must
sort the defendant’s mental state into one of four specific categories—purposeful,
knowing, reckless, or negligent—which will in turn define both the nature of the
crime and the degree of the punishment. The MPC therefore assumes that ordinary
people naturally sort mental states into these four categories with a high degree of
accuracy, or at least that they can reliably do so when properly instructed. It also
assumes that ordinary people will order these categories of mental state, by
increasing amount of punishment, in the same severity hierarchy that the MPC
The MPC, now turning fifty years old, has previously escaped the scrutiny of comprehensive
empirical research on these assumptions underlying its culpability architecture.
Our new empirical studies, reported here, find that most of the mens rea
assumptions embedded in the MPC are reasonably accurate as a behavioral matter.
Even without the aid of the MPC definitions, subjects were able to distinguish regularly
and accurately among purposeful, negligent, and blameless conduct.
However, our subjects failed to distinguish reliably between knowing and reckless conduct. This failure can have significant sentencing consequences for certain
crimes, especially homicide.

Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders

Michael A. Helfand

This Article considers a trend toward what I have termed the “new multiculturalism,”
in which conflicts between law and religion are less about recognition
and symbolism and more about conflicting legal orders. Nothing typifies this trend
more than the increased visibility of religious arbitration, whereby religious groups
use current arbitration doctrine to adjudicate their disputes not in U.S. courts and
under U.S. law, but before religious courts and under religious law. This dynamic
has pushed the following question to the forefront of the multicultural agenda:
Under what circumstances should U.S. courts enforce arbitration awards issued by
religious courts in accordance with religious law? Indeed, with growing skepticism
regarding the oppressive potential of religious majorities, critics have questioned
whether religious arbitration has any place in a regime dedicated to individual liberties.
By contrast, this Article contends that current arbitration doctrine can meet
the challenges of the new multiculturalism. To do so, this Article makes two concrete
policy recommendations: (1) courts should redefine the scope of enforceability
of religious arbitration awards by limiting the application of public policy to vacate religious arbitration awards; and (2) courts should expand the application of
the unconscionability doctrine to void religious arbitration agreements.


Judicial Review and the Humane Treatment of Animals

Craig A. Wenner

Humans have a complicated relationship with animals. Animals are at the same
time companions, food, subjects of research, and competitors for resources. Determining
how we should treat them in these different contexts—setting the standards
that capture our concern for their welfare—is difficult. Our contemporary scientific
understanding of animal behavior and physiology should ultimately inform our
standards for animal welfare. However, what science cannot determine is how
much concern we should have in the first place.

This Note focuses on those laws that aim to set humane standards for the treatment
and care of animals. When legislatures place the burden of setting those standards
on administrative agencies, courts should ensure that the meaning of “humane”
relied upon by an agency reflects more than science alone. Through examining a
recent opinion of the Supreme Court of New Jersey, this Note argues that such
standards must incorporate the social value that we place on mitigating animal pain
and suffering and provides examples of how such value should be measured. Furthermore,
judicial review of agency action can be conducted in a manner that both
respects the institutional role of the court and ensures that agencies have actually
made tough ethical decisions.

The “Surveil or Kill” Dilemma: Separation of Powers and the FISA Amendments Act’s Warrant Requirement for Surveillance of U.S. Citizens Abroad

Anthony M. Shults

In July 2010, Nasser Al-Aulaqi, the father of suspected terrorist leader and U.S. citizen Anwar Al-Aulaqi, filed a lawsuit alleging that his son had been placed on a targeted killing “hit list” by the U.S. government. In dismissing the suit, Judge John D. Bates pointed out an extraordinary aspect of the current law of counterterrorism: Prior judicial consideration is required under the FISA Amendments Act of 2008 to target suspected terrorists like Anwar Al-Aulaqi abroad for surveillance, but it is unnecessary under U.S. law to seek judicial authorization to target such individuals for assassination. This apparent antilogy in the law creates a “surveil or kill” dilemma for the government. On the one hand, current law burdens the President’s ability to engage in foreign intelligence surveillance of suspected threats; on the other, it incentivizes aggressive counterterrorism interventions like the CIA’s drone strike program. Indeed, the U.S. government ultimately killed Al-Aulaqi, along with another U.S. citizen suspected of aiding al Qaeda in the Arabian Peninsula, without ever receiving judicial approval or making public any formal charges against them.

In this Note, I explore the constitutionality of the current legal regime established by the FISA Amendments Act of 2008. Specifically, I argue that the statute’s protections for U.S. citizens abroad, while a laudable extension of civil liberties, constitute an unconstitutional infringement of the President’s inherent authority to engage in warrantless foreign intelligence surveillance overseas. By imposing statutory limitations on the President’s power in this context that go beyond the baseline requirements of the Constitution, Congress has encroached upon inherent executive authority and therefore has violated a formal understanding of separation of powers.

Taxes as Regulatory Tools: An Argument for Expanding New York City’s Taxing Authority

Erin Adele Scharff

This Note explores the regulatory role of tax policy in New York City and argues
that the City’s power to tax independently should be increased. Currently, New
York City must seek permission from the New York State Legislature to impose
new taxes or change the structure of existing taxes. This restriction is justified primarily
by the revenue-raising function of tax policy—an analysis that ignores the
important role tax policy plays in creating effective regulatory regimes. The first
Part of this Note sorts out the tangled relationship between fiscal policy tools such
as taxation, regulation, user fees, and spending, and suggests factors relevant to
determining which tool is most appropriate to use in a given situation. The Note
next discusses New York State’s scheme for distributing authority over taxation and
regulation, and provides an overview of local government law. The concluding Part
of this Note argues that New York City should be given more independent taxing
authority and directly addresses arguments against the granting of greater municipal
taxing power.

A New Model for States as Laboratories for Reform: How Federalism Informs Education Policy

Shannon K. McGovern

In the decade since passage of the No Child Left Behind Act, American education
policy has been federalized and politicized to an unprecedented degree.
Widespread substantive and ideological criticism of the Act has left the future of the
legislation—and of federal education policy itself—in doubt. The Obama
Administration has called for an overhaul of No Child Left Behind, which has
engendered criticism as an unfunded federal mandate on the states. But the
Administration’s implementation of Race to the Top, a controversial education
reform competition among the states, has exacerbated concern about federal
encroachment upon state policy making autonomy.
In this Note, I explore both the troubling federalism implications of recent federal
education initiatives and the equally compelling policy considerations demanding
continued federal leadership. I conclude that globalization and entrenched interstate
inequality, among other forces, necessitate a continued, albeit more prudent,
role for the federal government in reforming K–12 education.

Neither Constitution nor Contract: Understanding the WTO by Examining the Legal Limits on Contracting Out Through Regional Trade Agreements

Joanna Langille

This Note seeks to describe the legal system of the World Trade Organization
(WTO) by analyzing the extent to which countries that are members of the WTO
can contract out of WTO obligations. The current literature on the WTO provides
two primary models through which we can understand the WTO’s legal regime: a
constitutional model and a contractual model. The constitutional model sees the
WTO as a legal system that cannot be easily varied by individual WTO members
because WTO commitments are made to all members. Alternatively, the contractual
model describes WTO obligations as easily variable by subsets of members, since
WTO commitments are made only on a bilateral (country-to-country) basis. This
Note addresses that debate by looking at the ability of WTO members to contract
out of WTO obligations through bilateral and regional trade agreements, whereby
two or more members define the trade rules governing their relationship outside of
the WTO legal regime. WTO law governing regional trade agreements reveals that,
on the one hand, member states cannot contract out of all WTO obligations; certain
core obligations cannot be varied. However, there remains significant scope for
contracting out through regional trade agreements on most subjects. Therefore,
both the constitutional and contractual models are insufficient and do not accurately
describe the nature of WTO obligations.

Are We Sailing in Occupied Waters?: Rethinking the Availability of Punitive Damages Under the Oil Pollution Act of 1990

Lauren E. Hume

Litigants’ briefs in the myriad cases arising from the Deepwater Horizon explosion
raise questions about the extent to which the Oil Pollution Act’s two savings clauses
preserve additional remedies, such as punitive damages. A large number of comprehensive
federal frameworks include savings clauses that anticipate supplementing
the statute with additional federal or state law. When these clauses are
ambiguous, the statute and precedent may not suffice to resolve the ambiguity. This
Note explores how economic policy, specifically optimal deterrence theory, may be
used to resolve whether the Oil Pollution Act’s ambiguous maritime savings clause
preserves or precludes maritime punitive damages. Optimal deterrence theory bolsters
the Supreme Court’s recent repeated affirmances of using maritime punitive
damages to supplement federal statutes, providing a firmer justification for the
argument that two lower courts wrongly held that the Act precludes the maritime
damages for oil spill injuries. Having resolved the ambiguity caused by the interaction
between maritime punitive damages and the Oil Pollution Act with optimal
deterrence theory, I conclude by proposing a framework that courts could use to
determine when and how to award maritime punitive damages for oil spill injuries
in particular cases, integrating the common law remedy with the statutory scheme.