Volume 86, Issue 4
Articles
In this Article, Professor Kousser takes the recent renewal of various provisions of the Voting Rights Act as an invitation to reflect on the history of Section Five of this politically transformative legislation. Although the Voting Rights Act currently enjoys overwhelming popular and legislative support, the rushed renewal of expiring provisions of the Act in 2005 and 2006 became a political minefield where partisan interests sowed the dragon’s teeth of the Act’s demise even as they extended provisions of the Act by twenty-five years.
The much-heralded renewal merely restored Section Five of the Act to its “damaged pre-2000” state, and tactics were employed to all but invite the Supreme Court to declare the Act unconstitutional under the Court’s reinvigorated federalism concerns. By delving into the history of Section Five of this Act, Professor Kousser reveals that the present confusions reflected in the “renewal saga” were not anomalous outcomes of unique circumstances but instead accurately reflect a history that is filled with irony and unintended consequences. This historical study illuminates the fragility of the Voting Rights Act and the ease with which political apathy and antagonistic judicial pronouncements can frustrate progress towards racial equality in voting and democratic representation.
Responses in See Also:
In this Article, Professor Sullivan examines the problem of Judicial deference to treaty interpretations by the Executive Branch. This problem has enormous implications for United States policy in conducting the “war on terror” as well as in dealing with an increasingly globalized world in which multinational treaties reach deeply into areas that have in the past been purely domestic concerns.
In this context, the current judicial doctrine of giving “great weight” to executive-branch treaty interpretations is dangerously vague. The Judiciary’s failure to explicate the contours of this test has led to confusing and irregular application of judicial deference. Professor Sullivan criticizes recent scholarly proposals to import the administrative law doctrine of Chevron deference into this area: he argues that such “fixed-point” approaches, although more disciplined than the current test, suffer from too much rigidity in their application and do not properly take into account unique issues arising in the context of treaty interpretations.
He proposes that the new model of deference should look to the administrative law doctrine of Skidmore and argues that application of the Skidmore factors provides a flexible test that would allow the Judiciary to better calibrate the level of deference to underlying facts. Furthermore, this approach would best respect the institutional competencies of the Executive and Judicial Branches while preserving the balance between the values of judicial review and executive discretion in foreign affairs.
Book Reviews
In this review of two books, Reviewing Law and New Governance in the EU and the US and The Regulatory and Administrative State: Materials, Cases, Comments, Professor Solomon considers the emerging scholarship of “new governance”—an experimental policymaking trend that is replacing the “command-and-control” top-down approach that characterized the post-New Deal regulatory state.
In new governance approaches, agencies and other standard-setting bodies are creating increasingly participatory and horizontal mechanisms for producing and policing standards. An example of a new governance model is the No Child Left Behind Act, which combines federal involvement with flexible implementation by the states. These new governance developments have fueled scholarly and curricular responses: the first book in the review is a collection of scholarly essays on new governance in the EU and the United States, and the second represents the changes in law-school curricula that reflect this latest trend of administrative law.
In this Review Essay, Professor Solomon seeks to connect the emerging scholarship and the curricular developments. He commends the approaches taken by both books; however, he argues that scholarship in this area should spend more time considering what conditions lead to the success of new governance models and praises those pieces that did so. Professor Solomon also criticizes Heinzerling and Tushnet’s casebook for emphasizing the perspectives of policymakers and state actors over that of lawyers. For example, Professor Solomon faults the casebook for spending too much time explaining the economic and political reasons necessitating the administrative state and not enough on issues central to lawyering, such as canons of statutory construction.
In general, while Professor Solomon welcomes the addition of these works to the literature of new governance and administrative law, he argues that both could benefit greatly by accounting for the American culture of “adversarial legalism” in evaluating the prospects and scalability of new governance models. Thus, an increased focus on the role of lawyers in an adversarial legal system will enrich new governance scholarship and strengthen the pedagogical value of administrative law courses.
Notes
This Note examines the ruling of the Bankruptcy Appellate Panel (B.A.P.) of the Ninth Circuit in Commercial Money Center. The panel held that rental payment streams stripped off of a lease should be classified as payment intangibles instead of chattel paper, as had been found by the trial court. This ruling was significant for the securitization industry because classifying these rental payment streams as payment intangibles meant that the streams automatically perfect under state law.
This removes the obligation of owners of marketable securities consisting of securitized or pooled rental streams to perfect by filing or possession under Article 9 of the Uniform Commercial Code (U.C.C.). While the ruling was welcomed by participants in the lease-securitization industry, the ruling and its rationale present many problems for those concerned with the secret-lien ramifications of this classification (i.e., the lack of public notice of ownership) or with the consistency of legal doctrine. This Note argues that the ruling of Commercial Money Center was in error. A careful examination of the classification scheme of payment intangibles, chattel paper, and accounts in Article 9 of the U.C.C. reveals how each category covers a different bundle of rights. Thus, a functional rights-based approach to this question strongly compels the conclusion that the rental streams at issue in Commercial Money Center should have been classified as chattel paper or, in the alternative, as accounts.
This Note examines one of the fundamental problems in national security: balancing the value of protecting speech—particularly speech critical of government activities—with the strong security interest in preventing disclosures of information sensitive to state security.
One of the government’s tools in protecting sensitive information is § 793(e) of the Espionage Act, which allows the government to prosecute anyone who transmits sensitive information without authorization or retains it without authorization and without promptly delivering it to the appropriate government actor. The language of the section is general: it covers any information “relating to the national defense.” As this Note argues, such language is overly broad and constitutionally unacceptable given First Amendment concerns. The simple threat of such prosecutions can unduly hamper important public discourse and media activity in a way that contravenes the purpose of the First Amendment.
This Note advocates for a strict-scrutiny evaluation of § 793(e), under which it should not pass constitutional muster unless it is the least-restrictive means possible of achieving legitimate state security interests. Concluding that § 793(e) cannot pass this test, this Note argues that § 793(e) should be amended and observes that the danger of unrestricted information disclosures is mitigated by other statutory provisions, such as § 794(b) of the Espionage Act and the Atomic Energy Act of 1954, further buttressing the argument for a statutory amendment.
