The vital role of Spending Clause legislation in the operation of our government flies below the popular radar. Not many people realize that programs like Social Security, special education, and the current economic stimulus efforts take the form of laws exercising Congress's power under the Spending Clause of the Constitution. Spending Clause statutes exercise this power by imposing conditions on the funding recipients. But this source of expansive federal power is under pressure. The United States Supreme Court's conservative members have developed and begun to use more aggressively a clear statement rule of interpretation that, by placing strict requirements regarding the conditions contained in the statutory text, narrows the reach of Spending Clause legislation. This Article provides a comprehensive look at the development and use of the clear statement rule for federal spending legislation. It uses a single statutory scheme, the Individuals with Disabilities Education Act, as a lens to examine the extent of reliance on the rule, with particular focus on two recent cases. I review the federalism-based justifications for the rule and recommend a rule of appropriate scope and strength. The purpose of giving states notice of their essential obligations under spending legislation is served by a far less rigid version of the rule-- one that looks to the core obligations imposed by the statute, and recognizes notice drawn from legislative history, judicial interpretations, and administrative interpretations, in addition to statutory text.
Dynamic Federalism in Human Rights Treaty Implementation
In response to the growing academic and political movement that opposes the direct incorporation of treaties into domestic federal law, numerous scholars have proposed that states take on an increased role in the domestic interpretation and implementation of international human rights treaties. The focus of this scholarship to date has been to locate doctrinal gaps where state legislatures and courts may act without intruding in areas of traditionally federal jurisdiction. Thus far, however, little effort has been directed towards modeling an affirmative obligation for state participation in treaty implementation, despite the fact that state action is arguably required, both pragmatically and doctrinally, if the United States is to comply with its commitments under international human rights law. In this Article, I argue that reframing treaty implementation through a dynamic federalist model could be productive and even necessary, if the United States is going to meet its existing international obligations. As an example, I discuss the ongoing litigation over the United States' failure to honor its obligations under the Vienna Convention on Consular Relations (VCCR). Federal actors have relied on federalism concerns to avoid forcing states to remedy violations of Convention rights, thus leaving the question of whether the United States will reach compliance entirely in the hands of the states, which have generally been slow to take up the call. Drawing on a model proposed by Justice Breyer, I contend that adopting a dynamic federalist model to implement and enforce the VCCR could help to move beyond this impasse, and perhaps more importantly, could help realize the benefits of federalism within the context of human rights treaty implementation.
Justice for All?: The Equal Protection Clause and Its Not-So-Equal Application to Legal Aliens
This Comment will argue that all classifications of legal aliens, including nonimmigrant aliens, should be subject to strict scrutiny, rather than rational basis review. Part II will discuss the Equal Protection Clause, the levels of scrutiny, and the criteria the Supreme Court uses to determine which classifications should be subject to each level of scrutiny. Part III will discuss Court precedent in relation to the Equal Protection Clause and how the Fifth and Sixth Circuits have contravened that precedent. Part IV will discuss why classifica-tions of nonimmigrant aliens, just like those of immigrant aliens, should be subject to strict scrutiny. Finally, Part V will discuss the implications of treating nonimmigrant aliens as a suspect class and subjecting laws that discriminate against them to strict scrutiny.
Sex Offender Treatment in the United States: The Current Climate and an Unexpected Opportunity for Change
While sex-offender laws and policies have garnished unquestioning support from a sector of the population largely uneducated about the specifics of their implementation and effects, they have frequently been criticized by scholars, mental health professionals, and others familiar with the realities of contemporary sex-offender treatment. This Comment explores many of these criticisms, from widespread societal implications and efficacy concerns to the frequently disproportional practical difficulties faced by individual offenders and their families. This Comment recognizes that because of the general population's lack of awareness about these issues, lawmakers who would otherwise support sensible and necessary modification of the existing system are often unable to do so without risking political suicide. As a result, this Comment suggests that legislators seize the opportunity presented by the current economic crisis and use the umbrella of budgetary constraints to restructure sex-offender laws and policies in order to inject into the system maximum financial economy, functionality, and justice.
Show Me the Money: The Applicability of Contract Law's Ratification and Tender-Back Doctrines to Title VII Releases
This Article seeks to remove this confusion and set forth the proper role (if any) for the common law contract doctrines of ratification and tender back with respect to a release of Title VII claims. Part II provides the background of these common law contract doctrines. Part III reviews the Supreme Court precedent on the application of the ratification and tender-back doctrines to the release of federal claims. Part IV reviews lower-court precedent on the application of these doctrines to the release of Title VII claims. Part V addresses whether Supreme Court precedent with respect to the application of the ratification and tender-back doctrines to other federal statutes compels a particular result regarding Title VII releases. Part VI discusses the competing policies and principles with respect to whether ratification and tender back should apply to Title VII releases. Lastly, Part VII demonstrates that ratification should apply to Title VII releases, but that the tender-back doctrine should be applied flexibly on a case-by-case basis.
This Field Is Our Field: Foreign Players, Domestic Leagues, and the Unlawful Racial Manipulation of American Sport
This Article argues that the MLS Policy restricting the numbers of international players on its teams' rosters does, in fact, perpetuate unlawful racial discrimination. While the Policy does not facially discriminate against prospective players on the basis of race, and while its drafters may not have intended racial exclusion, the MLS Policy disproportionately and negatively impacts players of color--particularly blacks and Latinos. In that the MLS Policy serves to racially exclude in violation of federal antidiscrimination law, it demands scrutiny. This Article provides that scrutiny, examines the implications the MLS Policy has for America's other premier professional sports leagues, and ultimately argues that MLS should abandon the Policy.
The Forgotten Freedom of Assembly
The freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women's suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the Civil Rights movement. Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the First World War and the second Red Scare of 1950s' McCarthyism. Abraham Lincoln once called “the right of peaceable assembly” part of “the Constitutional substitute for revolution.” In 1939, the popular press heralded it as one of the “four freedoms” at the core of the Bill of Rights. And even as late as 1973, John Rawls characterized it as one of the “basic liberties.” But in the past thirty years, assembly has been reduced to a historical footnote in American law and political theory. Why has assembly so utterly disappeared from our democratic fabric? This Article explores the history of the freedom of assembly and what we may have lost in losing sight of that history.
Raising the Dead?: The Lilly Ledbetter Fair Pay Act
If applied literally, the Lilly Ledbetter Fair Pay Act (FPA) has the potential to radically change the landscape for claims under Title VII and other antidiscrimination laws. While limited to discrimination in compensation, as opposed to discrimination in other terms and conditions of employment, the FPA removes the statute of limitations not only for compensation decisions per se but for any “other practice” affecting compensation. Further, the new law is explicitly retroactive. Thus, a failure to promote a plaintiff twenty years ago would seem to be actionable today, as long as the nonpromotion has an effect on current compensation. While the statute has a liability-limiting provision (capping backpay at two years before the filing of an Equal Employment Opportunity Commission charge), the potentially enormous financial costs of the new law are sure to trigger a variety of responses from employers, ranging from interpretation disputes about the scope of the statute, to constitutional challenges, to the applicability of laches--a defense that has been barely developed in this context. This Article analyzes the FPA and concludes that its most radical implications are in fact the correct interpretation of the law and that Congress acted well within its constitutional powers in making the FPA retroactive. Ironically, the Justices who read Title VII as it was originally enacted to impose a strict limitations period will be compelled by their own interpretative approach to read the FPA as an override. This Article does recognize, however, that laches may limit the impact of the new statute--most obviously where the plaintiff was aware both of the adverse employment action at the time it was taken and of the probability that the action was discriminatory.
Congressional Consent Under the Compact Clause: Plugging the Leaks in the Regional Greenhouse Gas Initiative
The United States faces a potential turning point in the relationship between state and federal regulation of environmental issues. With the election of President Barack Obama, who has signaled a commitment to taking action in the area of carbon emissions regulation, the national government may step into an arena where the states are already playing, setting up a federalism debate to determine the better actor to enact meaningful and efficient environmental protection. Effectiveness in this area depends on the balance between quick enactment to prevent increased emissions (and further harm) and the comprehensiveness required to address this national and global issue. This Comment examines the Regional Greenhouse Gas Initiative to illustrate how the use of a seldom-examined constitutional tool--consent under the Compact Clause--could enable states to form efficient and effective regional regulatory schemes that could be meaningful units within the greater system of federalism.
A Crime Against Common Sense: How Louisiana's Implementation of the Adam Walsh Act Exposes the Law's Most Significant Flaw
In Louisiana, hundreds of people are required to register as sex offenders for committing a crime that is neither violent, predatory, nor against children. Prostitutes who offer (or solicitors seeking) vaginal sex are convicted of prostitution, whereas prostitutes offering (or solicitors seeking) oral or anal sex may be convicted of “Crime against nature” and must register as sex offenders. This Comment explores how Louisiana's implementation of the flawed Adam Walsh Act has led to the senseless mislabeling of those convicted of “Crime against nature” as sex offenders. More than merely recognizing the problem, this Comment offers a practical solution.