The Western Climate Initiative: Cross-Border Collaboration and Constitutional Structure in the United States and Canada – Note by Jeremy Lawrence

From Volume 82, Number 6 (September 2009)

Scientists have reached a consensus that global warming is a looming threat. A surprisingly large number of national politicians are lagging behind. The U.S. federal government, though making some strides toward reducing national greenhouse gas (“GHG”) emissions, has only addressed the problem in a piecemeal and halting fashion. In its place, the states have taken the lead. In Canada, the provinces have likewise taken the initiative in the face of federal inaction.

In light of these locally driven efforts, it was only a matter of time before states and provinces began to collaborate in their efforts. The first of these cross-border efforts originated in 2007, when the Western Climate Initiative (“WCI”), originally a GHG reduction partnership between a number of governors in the western United States, added British Columbia and Manitoba to its ranks.

But there is an apparent barrier to such cross-border collaboration. As the U.S. Supreme Court noted in its most recent case on global warming, “When a State enters the Union, it surrenders certain sovereign prerogatives. . . . [I]t cannot negotiate an emissions treaty with China or India.”



“Counter-Counter-Terrorism via Lawsuit”—The Bivens Impasse – Article by George D. Brown

From Volume 82, Number 5 (July 2009)

This Article deals with one of the most difficult questions arising out of the war on terror: what to do about the victims. How should the legal system respond to claims of collateral damage to constitutional rights when the government has tilted in favor of security at the expense of liberty? The war on terror has already put the American legal system to a severe test, exacerbated by the divide between those who see the problem as essentially one of preserving civil liberties and those who see it as one of preserving national security.

Increasingly, the system will have to grapple with suits by terrorism suspects who seek damages for the governmental conduct to which they have been subjected. The Supreme Court has already decided one such case; others are on their way. Apart from damages for the victims, these suits present the question of potential civil liability for federal officials, particularly those of the previous administration. Much of this litigation will be based on the Bivens doctrine, which permits damages actions for constitutional torts committed by federal officials. This Article contends that the Bivens doctrine exists in two forms: the Marbury-rights model and the prudential-deferential model. The former focuses on the plaintiff and points toward allowing the suit to proceed. The latter focuses on the subject matter and leads to emphasis on protecting the government. It is closely related to the political question doctrine and has prevailed since the 1980s.



“[J]udicial [I]mperialism”? The South African Litigation, The Political Question Doctrine, and Whether the Courts Should Refuse to Yield to Executive Difference in Alien Tort Claims Act Cases – Note by Marissa Renée Geannette

From Volume 82, Number 5 (July 2009)

For decades, foreign nationals alleging human rights abuses were frustrated by their inability to receive their idea of adequate redress in the courts of their own countries. Beset by ills such as environmental pollution triggered by aerial drug eradication programs, the murder of union leaders by right-wing paramilitary groups allegedly financed by multinational corporations (“MNCs”), and torture and deprivation in countries like South Africa, these plaintiffs were offered a glimmer of hope by a series of rulings in U.S. courts, which had purportedly opened up to them relief through a statute passed by the American Founding Fathers themselves. But that relief has often proven elusive, as courts have hesitated to grant redress for claims brought under what they see as an outdated statute.



Second Amendment Standards of Review: What the Supreme Court Left Unanswered in District of Columbia v. Heller – Note by Jason T. Anderson

From Volume 82, Number 3 (March 2009)

In June 2008 the Supreme Court issued its opinion in the case of District of Columbia v. Heller, its first directly concerning the Second Amendment since 1939. Heller involved a series of D.C. laws that had the effect of banning the possession of handguns. At the narrowest level, the Court was deciding whether a ban on handguns violated the Second Amendment; however, the broader issue facing the Court concerned the fundamental meaning of the Second Amendment: does the amendment protect a collective or individual right to bear arms? To that question, the Court answered the latter, thus ending an at-times heated debate among legal scholars and those on both sides of the gun control debate. But the Court left the door open for a new debate to begin in the Second Amendment context: what standard of review applies to legislation that restricts an individual’s right to bear arms? Writing for the majority, Justice Scalia noted that “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to “keep” and use for protection of one’s home and family’ would fail constitutional muster,” and—unapologetically—failed to identify which standard the majority was using in this case. Justice Breyer’s dissent chided Scalia for this move, claiming that this failure to be more specific “throw[s] into doubt the constitutionality of gun laws throughout the United States.”



The Extraterritorial Constitution After Boumediene v. Bush – Article by Gerald L. Neuman

From Volume 82, Number 2 (January 2009)

The U.S. Supreme Court’s recent decision in Boumediene v. Bush elaborates a “functional approach” to the selective application of constitutional limitations to U.S. government action outside U.S. sovereign territory. This functional approach provides the best fit, both descriptively and normatively, to the Court’s modern case law. The decision repudiates the stance of the plurality in United States v. Verdugo-Urquidez, which sought to deny all constitutional rights to foreign nationals involuntarily subjected to U.S. action abroad.

Important ambiguities remain in the articulation of the functional approach. One major question is whether and when foreign nationals who are not in U.S. custody (unlike the Boumediene petitioners) are also potentially eligible for constitutional protection. Another concerns how coarsely or finely the categories of foreign locations are drawn when the functional analysis is applied.



Is the Family at Odds with Equality? The Legal Implications of Equality for Children – Article by Anne L. Alstott

From Volume 82, Number 1 (November 2008)

This Article revisits the liberal dilemma and suggests that one plausible version of liberalism can, at least in principle, combine wide diversity and freedom in family life with equal opportunity for children. But this conclusion arrives with two caveats. First, the theoretical compatibility of the family and equality of opportunity rests on three interpretations which remain contested even within liberal theory: the scope of parental autonomy, the meaning of equality of opportunity, and the functions ascribed to the liberal family. Second, the legal changes necessary to reconcile the family with equality would face practical and political difficulties. An egalitarian regime would require new redistributive programs and tax increases to fund them. A commitment to children’s equality would also require revision of constitutional and state law doctrines that prize parental authority and family economic self-sufficiency and disclaim positive obligations of the state toward children.



Ganging Up on RICO: Narrowing Gonzalez v. Raich to Preserve the Significance of the Jurisdictional Element as a Constitutional Limitation in the Racketeer Influenced and Corrupt Organizations Act – Note by Noelle Formosa

From Volume 82, Number 1 (November 2008)

Almost four years after the Supreme Court decided Gonzales v. Raich, its uncertain effect on as-applied constitutional challenges remains visible in many lower federal court decisions. Circuit courts struggle to determine when and how to apply Raich’s “broad regulatory-scheme principle,” which, when liberally construed, states that Congress may regulate any intrastate activity so long as the regulation is rationally included within a broad statutory scheme. Lower federal courts are faced with unanswered questions about the scope of the broad regulatory-scheme principle, particularly whether the principle applies to a statute that does not regulate a “fungible commodity,” and whether Raich governs when the principle’s application will extinguish the viability of as-applied challenges to criminal statutes that include explicit jurisdictional elements. The latter of these two questions provides the basis for this Note, which suggests an answer to the jurisdictional-element question in the context of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) as applied to noneconomic gang activity.



The Nonconstitutional Character of Ineffective Assistance of Counsel Claims in Immigration Proceedings: A Brief Comment on Afanwi v. Mukasey – Postscript (Comment) by Patrick J. Glen

From Volume 82, Number 1 (November 2008)

On May 19, 2008, the United States Court of Appeals for the Fourth Circuit held that an alien was foreclosed from establishing that alleged ineffective assistance of counsel deprived him of his right to due process, as aliens do not possess any constitutional right to effective assistance of counsel in immigration proceedings, and thus any ineffectiveness of privately retained counsel cannot be imputed to the government for purposes of establishing a violation of the Fifth Amendment. On its face, the holding of the Fourth Circuit regarding this issue seems spectacularly uninteresting—immigration proceedings have long been recognized to be civil in nature, and thus the Sixth Amendment does not provide any right to counsel. Without a constitutional right to counsel, there can be no constitutional violation if privately retained counsel performs ineffectively, as there will be no nexus in those circumstances between the counsel’s ineffectiveness and the state action required for invoking the Constitution. Notwithstanding this seemingly straight-forward analysis, the Fourth Circuit joined just one other court, the Court of Appeals for the Seventh Circuit, in finding that ineffective assistance of counsel in immigration proceedings does not constitute a violation of an alien’s right to due process. Every other court of appeals that addressed this issue has found that, although the Sixth Amendment does not guarantee a right to counsel in immigration proceedings, ineffective assistance of counsel may render the proceedings so fundamentally unfair and so impeding the presentation of an alien’s case that the ineffectiveness could deprive an alien of his right to due process under the Fifth Amendment. These courts have reached this conclusion in a perfunctory fashion, without squarely reconciling Supreme Court precedent that seems to argue strongly against the possibility that the ineffective assistance of counsel may constitute a violation of due process in circumstances where the Constitution does not provide a right to counsel.