In classical contract law, the concept of one-to-one negotiations is familiar: contracts where one party negotiates with the other and, eventually, terms are offered and then accepted. More modern times have made us comfortable with the notion of one-to-many contracts: contracts typically drafted by large corporations and then distributed on a take-it-or-leave-it basis to the masses. This Article discusses a third kind of contract: a many-to-many contract, which may look like the standard one-to-many contract in that it is composed of nonnegotiable language. But when the arrangements between the parties are further considered, we will see that the point of the contract is not for one party to impose its terms on another without question, but for a series of parties to determine the best way to facilitate interchange. In such situations, imposing standard doctrines of contract interpretation may frustrate the purpose of the contract entirely, and for that reason, courts should approach the interpretation of these contracts with care.
I'll Believe it When I C It: Rethinking 501(c)(3)'s Prohibition on Politicking
The United States Supreme Court's decision in Citizens United v. FEC challenged fundamental notions of free speech jurisprudence. While many commentators have focused on the decision's implications for corporate speech, this Comment examines whether the new First Amendment paradigm announced in Citizens United will challenge current speech restrictions on churches and other entities organized under § 501(c)(3). Not only does this Comment propose that such restrictions could potentially be invalidated based on the Court's reasoning in Citizens United, but also that practical factors relating to compliance and enforcement problems inherent in § 501(c)(3) indicate the ban should be amended. This Comment concludes by offering a proposed change to § 501(c)(3)'s politicking ban that would allow a § 501(c)(3) organization to engage in “some” amount of politicking, as long as it was not a substantial part of the organization's overall charitable activity.
Juvenile Criminal Responsibility: Can Malice Supply the Want of Years
Can the young be held accountable for their crimes? At common law, juveniles were entitled to a presumption of incapacity, but were subject to criminal liability on an individualized basis: demonstrated malice supplied the want of years. In Graham v. Florida, the United States Supreme Court rejected this principle and held that juveniles categorically could not be sentenced to life without parole for crimes other than homicide. This Article argues that embedded in the Court's holding is a simplifying assumption about the relative maturity of juveniles and adults and a moral claim about the culpability of homicides and nonhomicides—both this assumption and this claim are demonstrably false in a nontrivial number of cases.
This Article focuses on the facts of some of these cases. One cannot assess the culpability of particular defendants unless one considers, without artful euphemisms or convenient elisions, what they did. And what certain crimes reveal is that there are violent juvenile offenders—fortunately rare—who are at least as mature and culpable as the typical adult violent offender. The Article also considers lower court applications of Graham and finds, in many instances, marked skepticism. The Supreme Court's general theory of juvenile immaturity has failed to impress judges confronting particular cases. The Court's central claim about the relative culpability of adult and juvenile offenders originates from a failure to confront inconvenient facts and a belief that human nature is sufficiently captured by the three standard deviations that surround one's own experience in the world. Lower court judges have access to a wider data set in reaching contrary conclusions.
Breaking the Grip of the Administrative Triad: Agency Policy Making under a Necessity-Based Doctrine
The justification for the modern American administrative state is built on a belief that (1) limited congressional delegation, (2) cabined executive discretion, and (3) properly exercised judicial deference are akin to the system of checks and balances established by the nation's Founders. In this Article, I propose that the time has come to rid ourselves of this legal fiction, particularly as it has developed in two well-known (and highly criticized) lines of administrative cases: the United States Supreme Court's Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., jurisprudence and the United States Court of Appeals for the District of Columbia Circuit's cases wrestling with the use (or misuse) of nonlegislative rules by agencies. In its place, I propose the creation of a “Necessity Doctrine.” Unlike the constitutional branches of government, agencies are tasked with a much narrower objective within our system: to enable the enforcement of congressional directives through application of expertise, practicality, broad stakeholder input, and inclusion of political considerations. To restore the value of administrative process, we must limit the exercise of that process to those matters that necessitate the use of these bureaucratic tools and deny the urge to rely upon agencies as a surrogate for properly exercised judicial and legislative power.
The Illusion of Amateurism: A Climate of Tortious Interference in the World of Amateur Sports
When a player-agent pays an NCAA-eligible player in violation of NCAA regulations, the agent usually suffers no consequences. Instead, players and the universities they attend are sanctioned, often harshly. Attempts to find a solution to this problem--NCAA regulations, regulations of professional players associations, and state and federal legislation--have thus far been unsuccessful. There is a potential remedy, however: the tortious interference with contractual relations claim. When a gifted student-athlete decides to attend and play a sport at an NCAA-member university, the student-athlete typically receives a scholarship offer from the school and signs a National Letter of Intent. This Comment establishes that these documents together create a binding contractual relationship between the university and student-athlete. Thus, this Comment concludes, by dealing with a student-athlete in a manner that causes the student-athlete to violate his or her contractual obligation to follow NCAA regulations, the agent improperly interferes with this contractual relationship, opening the agent up to liability to the university for tortious interference with contractual relations. Finally, this Comment analyzes why universities largely have not yet taken advantage of this promising claim.
Emergence of a Deportation Gideon: The Impact of Padilla v. Kentucky on Right to Counsel Jurisprudence
In Padilla v. Kentucky, the United States Supreme Court imposed a Sixth Amendment mandate on criminal defense attorneys to warn their clients of the immigration consequences of a criminal plea. Rooted in Sixth Amendment precedent, the Court's new constitutional requirement arose principally out of its concern that the unique nature of immigration consequences required heightened due process protections. This Comment analyzes Padilla's specific impact on the concept of a right to appointed counsel in deportation proceedings. Although no deportation Gideon right existed before Padilla, signs indicate that the Court may be willing to revisit the issue. After explaining Padilla's relation to right to counsel jurisprudence, the Comment explores how the Court's newly heightened concerns over due process protections in immigration proceedings will affect its future analysis of the right as applied to the immigration context. This Comment concludes with an analysis of the manner in which the Court might come to recognize a categorical right to counsel in deportation proceedings.
Transnational Class Actions and the Illusory Search for Res Judicata
The transnational class action—a class action in which a portion of the class consists of non-U.S. claimants—is here to stay. Defendants typically resist the certification of transnational class actions on the basis that such actions provide no assurance of finality for a defendant, as it will always be possible for a non-U.S. class member to initiate subsequent proceedings in a foreign court. In response to this concern, many U.S. courts will analyze whether the “home” courts of the foreign class members would accord res judicata effect to an eventual U.S. judgment prior to certifying a U.S. class action containing foreign class members. The more likely the foreign court is to recognize a U.S. class judgment, the more likely an American court will include those foreigners in the U.S. class action.
Current scholarship accepts propriety of the res judicata analysis but questions the manner in which the analysis is carried out. This Article breaks from the existing literature by arguing that the dynamics of class litigation render the res judicata effect of an eventual U.S. class judgment inherently unknowable to a U.S. court ex ante. In particular, I argue that certain “litigation dynamics”--specifically the process of proving foreign law via experts, the principle of party prosecution, and the litigation posture of the action--complicate the transnational class action landscape and prevent a court from accurately analyzing the res judicata issues at play. This is exacerbated by the “structural dynamics” of class litigation: the complexity of foreign law on the recognition and enforcement of judgments, the newness of class action law in most foreign countries, and the distinction between general and fact-specific grounds for nonenforcement of a U.S. class judgment. Accordingly, I argue that U.S. courts should abandon their illusory search for res judicata.
Instead, courts should avoid the res judicata problem altogether by employing an opt-in mechanism for foreign class plaintiffs, whereby such plaintiffs are not bound unless they affirmatively undertake to be bound by U.S. class judgment. An opt-in mechanism for foreign plaintiffs also provides several advantages over the current opt-out mechanism: it allows all foreign claimants to participate in U.S. litigation if they so choose; it provides additional due process protections for absent foreign claimants; it respects international comity; and it sufficiently deters defendant misconduct.
Is It Really That Simple?: Circuits Split over Reasonable Suspicion Requirement for Visual Body-Cavity Searches of Arrestees
In Bell v. Wolfish, the United States Supreme Court upheld visual body-cavity strip searches on pretrial detainees but called for a balancing of privacy and security interests. For the three decades following Bell, courts routinely read in a reasonable suspicion requirement as part of that balance. That changed in 2008 when the United States Court of Appeals for the Eleventh Circuit held that the Fourth Amendment permits strip searches of all arrestees, regardless of whether there is any reasonable suspicion that an arrestee possesses contraband. In 2010, the United States Courts of Appeals for the Third and Ninth Circuits followed suit. In light of the recent split, the Supreme Court granted certiorari to determine whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense regardless of the circumstances. This Comment recounts the context of Bell, traces the courts' previously uniform interpretation of that decision, and explores this emerging debate, ultimately concluding that institution-specific security concerns could be a factor worthy of great weight in the Bell balancing equation.
False Efficiency and Missed Opportunities in Law and Economics
This Article points out a simple flaw common to many law-and-economics analyses, ranging from fundamental models like the Hand Formula to narrower arguments like those that oppose the doctrine of unconscionability.
The flaw is straightforward: economic analyses of law often assume, either implicitly or explicitly, that when it is more efficient for an activity to occur than for it not to occur, it is efficient for legal rules to encourage the activity. Even on grounds of efficiency alone, however, knowing in isolation whether an activity produces more wealth than its absence is insufficient to conclude that the activity is efficient. The determination of efficient legal rules requires an answer to a further question too often neglected by legal economists: what are the activity's alternatives? Even if an activity is more efficient than its absence, it may produce less wealth (perhaps significantly less wealth) than its alternatives, once its harms are taken into account. Encouraging all activities that appear to produce wealth on their own runs the risk of encouraging opportunistic behavior whose effect is more to transfer wealth than to create it.
As a simple example, a legal regime that followed the Hand Formula would encourage businesses to earn $100,000 by causing $95,000 worth of unavoidable harms to others; that incentive alone, while probably objectionable for other reasons, is not inefficient because, instrumentally speaking, the $100,000 social gains justify the $95,000 social losses. But a rule based on the Hand Formula would also encourage economic actors to engage in that $100,000-earning activity rather than one that paid $90,000 but caused no harms; that incentive is inefficient.
Some economic analyses acknowledge related points, but the law-and-economics movement insufficiently understands the flaw that this Article describes. Similarly, critics of the law-and-economics movement—while aware of other fundamental flaws in legal-economic analysis, such as the inapplicability of the rational-actor model in many circumstances—do not readily enough engage economic models on their own terms. This Article attempts to remedy those oversights, and in doing so, it suggests greater caution in applying economic reasoning to law.
Unnatural Resource Law: Situating Desalination in Coastal Resource and Water Law Doctrines
This Article offers the first legal analysis of desalination, the process of converting saltwater into freshwater. Desalination represents a key climate change adaptation measure because the United States has exploited nearly all of its freshwater resources, freshwater demands continue to grow, and climate change threatens to diminish significantly existing freshwater supplies. However, scholarship has yet to address the legal ambiguities that desalination raises in the context of property, water law, and coastal resource doctrines.
This Article addresses these ambiguities and suggests the legal adaptations necessary to accommodate desalination as a climate change adaptation. Under current legal doctrines, the chain of title for desalination is uncertain. Emerging desalination projects face questions about the entity with proprietary authority over seawater, the nature of the right to intake seawater, the nature of a desalinator's interest in desalinated water, and the nature of the interest that a utility, upon receiving water from a desalinator, holds in the desalinated water. This Article argues that legislation is necessary to clarify this chain of title both because existing common law doctrines are insufficient to resolve these issues and because development of new common law cannot keep pace with emerging desalination projects. Thus, the Article proposes legislation that (1) clarifies federal sovereignty over saltwater, (2) considers the public trust doctrine in creating a permit scheme for the intake of saltwater, (3) recognizes desalinators as service providers rather than holders of private property in desalinated water, and (4) recognizes municipal utilities as holding vested property rights in desalinated water. Finally, the Article proposes that this clarified chain of title for desalination can serve as a model for developing ecosystem service markets, public trust doctrine applications, and property theories aimed at adapting other resource doctrines to cope with climate change.