Volume 13 / Number 1 / Spring 2009



Medellin: The New Formalism?

Ingrid Wuerth

The Supreme Court’s 2008 decision in Medellín v. Texas appears to represent a formalist turn in the Court’s approach to foreign relations cases. The opinion emphasizes text as the key to treaty interpretation and it stresses the importance of the Constitution’s specific law-making procedures. But the opinion does not deliver on its formalist promises. Emphasis on treaty text is undermined by the Court’s insistence that the text reflects the intentions of the U.S. treaty-makers, a questionable proposition with respect to the issue of domestic implementation raised by the case, and one that will raise serious interpretative difficulties down the road. Most significantly, however, the opinion is saddled with an unnecessary and unconvincing application of Justice Jackson’s tripartite Youngstown framework. The Court concludes that the President’s effort to implement the treaty falls within the third category, but the indicia of congressional intent that the Court relies on are weak, and the analysis works a substantial expansion of this category. Moreover, as the Court frames the issue—one of treaty interpretation—it is unclear why Youngstown should apply at all.

Open Doors

Paul B. Stephan

This Article focuses on two issues left open by Medellín v. Texas. First, do the courts of the United States have an obligation to accord comity to judgments of international tribunals such as the International Court of Justice? Second, is it possible to construe a treaty as delegating lawmaking authority to the Executive Branch, and if so, what are the criteria for determining that a delegation is intended? The Article argues that the comity doctrine rests on principles of reciprocity and discrimination, and that such principles generally are inapplicable to a treaty-based international tribunal. The Article further argues that the Medellín majority failed to address the delegation issue, and that strong arguments exist for inferring delegations from particular treaty provisions. In particular, it is plausible to infer, from a treaty commitment to submit a matter to binding dispute settlement by an international tribunal, a limited delegation to the Executive of discretionary authority to take necessary steps to bring the United States into compliance with the tribunal’s judgment.

A Primer on Treatises and Section 1983 after Medellin v. Texas

John T Parry

The majority opinion in Medellín v. Texas contains a number of statements to the effect that treaties are not equal to federal statutes and that courts should presume that treaties do not create private rights. This Article analyzes the impact of those statements on the ability of plaintiffs to bring actions under 42 U.S.C. § 1983 for the enforcement of treaty rights. Because there has been no comprehensive assessment of whether § 1983 applies to treaties at all, however, the Article first considers the textual, precedential and policy-based arguments on that issue, and it concludes that § 1983 should include treaty-based claims. Turning to Medellín, the Article discusses and criticizes the ways in which the decision creates problems for treaty claims, and it argues that treaties and statutes should receive similar treatment under § 1983.

Breach Without Remedy in the International Forum and the Need
for Self-Help: The Conundrum Resulting from the Medellín Case

Scott W. Lyons

The Supreme Court decision in Medellín v. Texas has created considerable doubt as to what methods exist for remedying breaches of treaty-based obligations. In Medellín, the Court acknowledged there was a violation of the Vienna Convention on Consular Rights (VCCR), yet did not find that this breach led to a remedy for Mr. Medellín or others similarly situated. This Article examines the current uncertainty surrounding available remedies for breaches in VCCR treaty obligations. Review of the strategies employed by the United States and Mexico to prevent irreparable breaches of the VCCR demonstrates these methods were insufficient. More significantly, the traditional options for redress for an irreparable breach are limited in availability to Mexico, demonstrating the limitations of international law in remedying these types of breaches. The Article explores unilateral self-help measures that states like Mexico may employ to seek redress, suggesting that these may be the only available remedies after Medellín.



Developing Defenses in Trademark Law

Graeme B. Dinwoodie

Trademark law contains important limits that place a range of third party conduct beyond the control of the trademark owner. However, I suggest that trademark law would be better served if several of its limits were explicitly conceptualized as defenses to an action for infringement, that is, as rules permitting unauthorized uses of marks even where such uses implicate the affirmative concerns of trademark law and thus support a prima facie cause of action by the trademark owner. To explore why this distinction between limits and defenses matters, I discuss the different nature of the proscription imposed by copyright and trademark law. And I draw lessons both from case law deriving limits from interpretation of the proscription of trademark law as well as from the development of statutory defenses to dilution. Conceiving of limits as defenses would help ensure that the (often unstated) values underlying socially desirable third party uses are not too readily disregarded if they happen to conflict with confusion-avoidance concerns that are historically powerful drivers of trademark protection. Such an approach would also ameliorate the uncertainties caused by the acceptance of extended (and increasingly amorphous) notions of actionable harm in trademark law. And it would facilitate a more transparent debate about the different forms that limits on trademark rights might take. Some defenses will operate as mechanisms by which to balance competing policy concerns on a case-by-case basis, while others (reflecting more fundamental normative commitments, or driven by more proceduralist concerns) might allow certain values categorically to trump the basic policy concerns supporting liability for trademark infringement. Full development of these defenses will involve courts adopting a conscious understanding of the different jurisprudential nature of defenses and will be made easier by acceptance of the Lanham Act as a delegating statute.

Of Persons and Prenatal Humans:
Why the Constitution is Not Silent on Abortion

Lawrence J. Nelson

Many jurists and legal commentators have concluded that the Constitution does not protect a woman’s right to terminate a pregnancy because nothing in the Constitution’s text and no principle or rule derived from its structure, internal logic, or propositions supports striking down restrictive legislation on abortion. In short, Roe v. Wade, Planned Parenthood of Southeastern Pennsylvania v. Casey, and their progeny have been wrongly decided because the Constitution has absolutely no bearing on abortion other than to leave it to the legislative branch.

The conclusion that the Constitution is silent on abortion is false because the Constitution, in the text of the Fourteenth Amendment pertaining to the basic rights of persons and their entitlement to the equal protection of the laws, does have something to say about abortion. The Fourteenth Amendment grants only persons basic rights to life, liberty, property, and the equal protection of the laws. Pregnant females undoubtedly are constitutional persons. The prenatal humans they gestate may or may not be constitutional persons, but they must be one or the other. Consequently, prenatal humans either have the same basic rights on equal terms with born constitutional persons or they do not.

If prenatal humans are not constitutional persons, then they lack basic constitutional rights. The constitutional status of pregnant women who are persons with basic rights, then, is necessarily superior to that of nonpersons, and this superior status entitles them to have an abortion if necessary to preserve their lives or avoid significant damage to their health. It also entitles them to end their pregnancies to some extent as an exercise of their liberty.

If prenatal humans are constitutional persons, then the Fourteenth Amendment grants the unborn the same right to life possessed by all other persons and requires the State to afford that life the same protection it gives to all other persons. As the State cannot justify the routine killing of one class of blameless persons by another, the Constitution requires the State to ban all abortions. Therefore, regardless of whether prenatal humans are or are not constitutional persons, the Constitution significantly affects the State’s power to regulate abortion, and the conclusion that the Constitution is silent on abortion must be false.

However, the ascription of constitutional personhood to unborn humans results in women losing their fundamental rights to maintain bodily integrity and refuse medical treatment, to exercise autonomy over the conduct of their daily lives on the same basis as all other persons, and to avoid subordination of their vital interests in order to preserve the interests of another. This creates a dangerous constitutional anomaly and results in an unacceptable destruction of the Constitution’s commitment to equality with respect to the basic rights of all persons. This Article argues that the only way to avoid this anomaly is not to regard prenatal humans as constitutional persons. Nevertheless, the State has a morally legitimate interest in valuing and protecting prenatal humans—even a moral obligation to do so, and it may enforce that interest, provided that it does not violate the fundamental rights and interests of persons.

“Go West, Disappointed Heir”: Tortious Interference with
Expectation of Inheritance—A Survey with Analysis of State Approaches in the Pacific States

Diane J. Klein

This Article is the fifth piece of a nationwide survey and analysis of tortious
interference with expectation of inheritance, which offers a civil remedy to a
person who believes that another has wrongfully interfered with an inheritance, legacy, or lifetime gift the donor intended the aggrieved person to receive. This in personam remedy is awarded by the civil court, not the probate court, and damages are paid by the tortfeasor, not the estate. To some courts and commentators, the need for such a cause of action is obvious, and acute: a variety of wronged persons, who lack standing in the probate court or are otherwise unable to prove up their legacy there, are left remediless without the tort, while wrongdoers can act with impunity. To others, the tort is an equally obvious improper and unnecessary incursion on the probate court’s special procedures and evidentiary requirements, developed over centuries for determining whether testators and trust settlors have made valid and enforceable gifts, and distributing their assets accordingly. 

This short Article surveys and analyzes the cases from Oregon, which recognizes the tort; and California, Hawai’i, and Washington, which do not. (Alaska has no cases yet mentioning it.) The Article includes a comprehensive and up-to-date state-by-state listing of cases involving the tort.

The Meaning, Measure, and Misuse of Standards of Review

Amanda Peters

Standards of review should be the appellate court’s first consideration when it reviews the trial court decision on appeal. Yet, so often it is ignored or misused. This article seeks to explore the history of modern-day standards of review and the policy reasons for their creation. It uses empirical data collected from two sample jurisdictions, California and Texas, to identify ways that courts ignore, confuse, and misuse standards of review. The purpose of this article is to illustrate how standards of review are supposed to work in theory, demonstrate how they are often abused in practice, and encourage judges and appellate practitioners to recognize and confront problems that arise with the use of standards of review.

Are Debtors Rational Actors? An Experiment

Chrystin Ondersma

This Article examines patterns in bankruptcy filing data to determine whether this data supports the simplistic Rational Actor model that is the basis for Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA). The Article closely reviews the Rational Actor and Situationist models—the current debate about human behavior in bankruptcy context. Analysis of empirical data of pre-BAPCPA, post- BAPCPA, and current filings demonstrate that while BAPCPA reduced the number of filings nationally, unexplained variation in filing patterns exist. These findings suggest that the Rational Actor model provides a limited understanding of human behavior in the bankruptcy arena. As salient economic factors— poverty, unemployment, and foreclosure rates—fail to adequately explain the local variation patterns, this Article explores non-economic factors to develop a better understanding of debtor decision making. Wide local variation patterns in filing data demonstrate that a more nuanced model that takes into account both nationwide and local situational pressures is required for understanding debtor decision-making and developing effective policies.