The Unabomber Strikes Again: An Investigation into Whether the Victim and Witness Protection Act of 1982 Violates the First Amendment or Conflicts with the Copyright Act of 1976 – Note by Michael B. Norman

From Volume 81, Number 6 (September 2008)

Over a decade after being arrested in a western Montana cabin, Theodore Kaczynski is once again grabbing headlines. Although he is currently in a federal maximum-security prison serving the life sentence that he received for committing the Unabomber crimes, Kaczynski is now engaged “in a legal battle with the federal government and a group of his victims over the future of [his] handwritten papers.” The government has proposed selling “sanitized versions of the materials” via an Internet auction in order to raise money for a group of his victims, and Kaczynski is fighting that plan.

At issue, largely, is the extent of the government’s power under the Victim and Witness Protection Act of 1982 (“VWPA”) and further, what the government may do with the property it seized from Kaczynski. This property includes his “handwritten . . . journals, diaries and drafts of his anti-technology manifesto . . . [which] contain blunt assessments of 16 mail bombings from 1978 to 1995 that killed 3 people and injured 28, as well as his musings on the suffering of victims and their families.” Moreover, due to its unique set of facts, Kaczynski’s case also provides an intriguing opportunity to evaluate whether the VWPA violates the First Amendment of the U.S. Constitution or conflicts with the Copyright Act of 1976 (“Copyright Act”), and to explore the fascinating interplay between these two areas of law, both of which provide protection for individuals’ free expression.



Carhart, Constitutional Rights, and the Psychology of Regret – Article by Chris Guthrie

From Volume 81, Number 5 (July 2008)

In Gonzales v. Carhart, the Supreme Court upheld the Partial-Birth Abortion Ban Act. In so doing, the Court used the prospect of regret to justify limiting choice. Relying on empirical evidence documenting the four ways in which regret actually operates, this Article argues that the Court’s analysis reflects a fundamental misunderstanding of the psychology of regret. By exposing the Court’s misunderstanding of this emotion, this Article seeks to minimize the most significant risk posed by the Carhart decision: that states will use the prospect of regret to justify additional constraints not only on the abortion right but also on other rights protected by the Constitution.



Brown v. Kamehameha Schools: An Instrumental Critique of Remedial Self-Segregation in Private Education – Note by Donald A. Thompson

From Volume 81, Number 4 (May 2008)

The Kamehameha Schools are a series of private, nonprofit, nonsectarian campuses interspersed throughout the Hawaiian Islands. Founded in the late nineteenth century, they have operated continuously ever since, fulfilling their mission to provide a “good education in the common English branches, and also instruction in morals and in such useful knowledge as may tend to make good and industrious men and women.” With over five thousand students enrolled in kindergarten through grade twelve, the Kamehameha Schools are collectively among the largest independent primary and secondary educational institutions in the United States. Otherwise—apart from their strong academic reputation and champion athletic teams—they might be perceived as fairly typical schools. This perception is deceiving. To the contrary, they are anything but.




The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine – Article by Margaret H. Lemos

From Volume 81, Number 3 (March 2008)

The nondelegation doctrine is the subject of a vast and ever-expanding body of scholarship. But nondelegation literature, like nondelegation law, focuses almost exclusively on delegations of power to administrative agencies. It ignores Congress’s other delegate—the federal judiciary.




On the Commander in Chief Power – Article by David Luban

From Volume 81, Number 3 (March 2008)

Since the attacks of September 11, 2001, the Bush Administration has made frequent dramatic appeals to the president’s commander in chief power, arguing that his decisions as military commander in chief in the global war on terror cannot and should not be second-guessed by the other branches of government. The “cannot” comes from Article 2 of the Constitution, which assigns the commander in chief authority solely to the president. Presumably this is what Mr. Bradbury, quoted in the epigraph above, means when he asserts that under the law of war the president is always right. The “should not” comes from elementary common sense. It seems self-evident that legislators and judges lack institutional competence to kibitz commanders about military matters. Their meddling would invite disaster. In its strong “cannot” form, the argument holds that it would be unconstitutional to enforce otherwise-valid laws that constrain the commander in chief’s pursuit of the war—a separation of powers argument for what has come to be known as the “commander in chief override” of other laws. In its weaker “should not” form, the argument holds that other branches of government, particularly courts, must adopt an extremely deferential stance toward the commander in chief’s decisions. Lawyers and legislators simply do not backseat drive on the battlefield.




Unreasonably Wrong: The Supreme Court’s Supremacy, the AEDPA Standard, and Carey v. Musladin – Note by Padraic Foran

From Volume 81, Number 3 (March 2008)

Plenty of injustices go judicially unresolved. On the Supreme Court’s docket, however, injustices in the criminal context have become alarmingly perfunctory, and the cause is a single procedural mechanism: a piece of legislation passed in 1996 called the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). Though in effect for more than ten years now, two representative cases serve to demonstrate the enormous power of the AEDPA.




Punitive Damages, Retribution, and Due Process – Article by Mark A. Geistfeld

From Volume 81, Number 2 (January 2008)

Tort law provides awards of punitive damages for reasons of deterrence and retribution. In light of a recent decision by the U.S. Supreme Court in Phillip Morris USA v. Williams, the retributive rationale for punitive damages will inevitably come under heightened scrutiny. The case involves a punitive award of $79.5 million, which is ninety-seven times greater than the compensatory damages, making it constitutionally suspect for exceeding the single-digit ratio between punitive and compensatory damages. The Court, though, has never addressed the constitutional issue in a case involving serious bodily injury or death, and so Williams poses a number of new questions. How can compensatory damages provide an appropriate baseline for evaluating punitive damages in a case of wrongful death, given that monetary damages provide no compensation to a dead person? What is the appropriate baseline? Any future deterrence provided by a punitive award cannot protect the decedent’s tort right, and so the award must be justified exclusively in terms of retribution. Is retribution inherently subjective and arbitrary, unless constrained by some objective measure such as the single-digit ratio between the punitive and compensatory damages? Or is there some way to translate retribution into dollars? These questions are not limited to wrongful death cases and must be resolved by any court trying to determine whether a punitive award is unconstitutional for exceeding the single-digit ratio. These questions can all be answered once retribution is tied to the inherent limitations of compensatory damages, which yields a method for quantifying this form of punitive damages. Based on government data and methodology for quantifying the social cost of a premature death, this method shows why vindication of the decedent’s tort right in Williams justifies the $79.5 million punitive award. When formulated in this manner, vindictive damages satisfy the requirements of both substantive and procedural due process and provide a baseline for reviewing courts to determine whether any given punitive award, like one based on general deterrence, is excessive in violation of substantive due process. This method fully accounts for the reprehensibility factors that determine the constitutionality of a punitive award, while also explaining why the Court could defensibly rely on procedural due process to reverse and remand Williams back to state court.