The Georgetown Law Journal

Latest print issue: Vol. 107 Issue 3

Half a million people sit in jail every day in America who have not been convicted of a crime but stand merely accused. Detention can cost defendants their jobs, housing, or even custody of their children; detention makes defendants more likely to commit a crime and can harm them mentally and physically; it takes a toll on defendants’ families and communities too. Courts simply ignore these serious harms when deciding whether a defendant should lose her liberty because of a mere accusation of wrongdoing. Yet in striking contrast to criminal cases, where the government so often succeeds in obtaining before trial the relief that it ultimately seeks—incarceration of the defendant—civil plaintiffs attempting to obtain before judgment the relief that they ultimately seek—by way of a preliminary injunction—face quite a challenge . . . . A more civil-like approach to pretrial detention would raise the threshold of government interest necessary to justify detaining an accused—not some minimal likelihood that the defendant might forget to appear in court or be accused of some minor crime such as jaywalking. As in the civil system, criminal courts should not simply ignore the immense costs to a defendant of ordering pretrial detention. Rather, courts should consider those costs to defendants, their loved ones, and the broader public and should detain defendants only when the benefits outweigh those substantial costs.

Defendants found incompetent to stand trial are often committed to an inpatient mental health facility to restore their competence, even if out-patient care may be the better treatment option. This inpatient-default model has two serious negative effects: (1) defendants found incompetent spend far longer confined before trial than their similarly situated competent counterparts, and (2) because of long wait periods for hospital beds, defendants found incompetent spend large chunks of their time con-fined in a jail cell, which is possibly the worst place for a person with a mental health condition to be housed. This Article is the first to examine how the language of competence restoration statutes defaults to inpatient treatment, even when the statute appears to allow for outpatient care. Some statutes man-date inpatient care. Others impose additional, irrelevant hurdles to the release of defendants found incompetent, or give courts unbridled discretion to place defendants in inpatient care, or both. When paired with widespread false presumptions about individuals living with mental illness, the implicit—or sometimes explicit—inpatient default found in most competence restoration statutes leads courts to over-commit defendants to state mental health facilities.

Most people’s entitlements are protected by a property rule, which means that their holders can sell them for a price. But some important entitlements are protected by an inalienability rule, and hence cannot be sold under any circumstances. For example, people cannot sell their organs. In most jurisdictions, women cannot be surrogate mothers for a fee (only for reimbursement of costs). People cannot sell their right not to be exposed to highly life-threatening conditions. Most constitutional rights are not transferrable. People cannot reassign their legal entitlements to social benefits provided by the government. Tort victims in many jurisdictions cannot sell their rights to sue. Finally, neither individuals nor governments can sell some types of cultural property to foreigners or to foreign governments. In this Article, we propose and develop an intermediate rule for protecting entitlements—a middle ground between property and inalienability rules—that we call the “Limited Inalienability Rule” (LIR). Under this rule, the holder of the entitlement is free to transfer her entitlement but still possesses an inalienable right to revoke the transfer (or the agreement to transfer) at a later stage, with no penalty. We show that this rule currently exists with respect to a few entitlements, and we suggest that it be employed in additional areas of law. We demonstrate that on many occasions, an LIR serves as a sensible compromise between property and inalienability rules, and can be justified on efficiency and justice grounds.

Responsible for nearly seventy-five percent of the world’s foreign anti-bribery sanctions imposed since the turn of the century, Germany and the United States have emerged as global leaders in the fight against cross-border business corruption. The legal frameworks enabling that active enforcement, the U.S.’s Foreign Corrupt Practices Act (FCPA) and Germany’s Gesetz zur Bekämpfung internationaler Bestechung, provide contesting legislative blueprints for eradicating bribery in the solicitation of international business contracts. This Note argues that specific aspects of the U.S. anti-bribery regime should be incorporated into Germany’s system, and vice-versa, to strengthen the enforcement and deterrent capacities of the systems in place. The United States should, mirroring German procedure, increase judicial oversight of its criminal and civil sanctions, reduce the prosecutorial discretion inherent in its approach to anti-bribery indictments, and criminalize the use of “grease-payments,” or facilitation payments. On the other hand, Germany should, taking a page from the U.S. book, introduce criminal liability for corporations, provide whistleblower protections, launch an incentive program for whistleblower disclosures that lead to successful prosecutions, and publicly report anti-corruption sanctions to deter future foreign bribery. These recommendations can serve as a wider paradigm for balancing prosecutorial activism with domestic business interests and competitiveness—as both the United States and Germany have sought to do.

As the staggering costs of the criminal justice system continue to rise, states have begun to look for nontraditional ways to pay for criminal prosecutions and to shift these costs onto criminal defendants. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. The shift from government funding of criminal litigation to user funding constitutes a privatization of criminal procedure. This intrusion of market ideology into the world of fundamental constitutional rights has at least two broad problems: it exacerbates structural unfairness in a system that already disadvantages poor people, and it degrades our conception of those rights. This Article proposes solutions to ameliorate the harshest effects of these rights-based user fees but also argues for the importance of resisting the trend of the privatization of constitutional trial rights.

Since the 2016 campaign, Donald Trump has threatened to withdraw from NAFTA. Can he? The question is complex. For one thing, NAFTA is not a treaty negotiated under the Treaty Clause of the Constitution, but rather a congressional–executive agreement, a creature of dubious constitutionality and ill-defined withdrawal and termination parameters. This Article reviews the scope of those restrictions and concludes that unilateral presidential withdrawal from NAFTA, although not without support, is ultimately unlawful. On one hand, unilateral presidential withdrawal would be valid as a matter of international law, and the NAFTA Implementation Act appears to be designed to terminate in the event of a lawful U.S. withdrawal from NAFTA. However, the President probably lacks statutory or constitutional authority to withdraw from NAFTA, and litigants might overcome political question hurdles by arguing that the NAFTA Implementation Act should not terminate where the President’s action exceeds the scope of his authority. Finally, because the Legislative Branch possesses constitutional authority over foreign commerce, Congress would also have several political remedies if it wishes to foreclose unilateral executive withdrawal from NAFTA or other congressional–executive agreements.

This Note will examine the legal landscape of U.S. citizenship by birth to those born abroad and will argue that current treatment of same-sex couples as giving birth “out of wedlock” violates not only the Constitution but also general principles of statutory interpretation. First, this Note will provide an overview of the INA’s statutory scheme, agency interpretations, and legislative history, and then will analyze the effect of Supreme Court and Ninth Circuit caselaw on the constitutionality of the State Department’s interpretation and application of the INA. Part II will compare definitions and presumptions of parentage under domestic and immigration law, examining what interests the government may have in affording differential treatment to children born abroad. Part III will assess the validity of the State Department’s actions under the Administrative Procedure Act (APA) and the Constitution. Finally, Part IV will conclude that there is no legitimate legal basis for denying children like Ethan their rightful citizenship by birth and will argue that the State Department’s interpretation of the INA should be amended to include same-sex married couples under the definition of “wedlock.”

Web-exclusive content: GLJ Online Vol. 107

This Note posits that the Second Circuit's new definition of friendship for insider trading cases, as set forth in United States v. Martoma, is incorrect. Rather, United States v. Newman’s close standard is the correct definition of friendship. The paper is divided into two parts. Part I addresses the antecedent issue of whether Salman v. United States rejected the close standard, concluding that Salman neither expressly nor impliedly rejected the close standard. Part II establishes that prior cases and the underlying policy rationale of the prohibition against insider trading compel the conclusion that the close standard is the proper definition of friendship under the gift theory.

Part I of this Note provides a brief background of cryptocurrencies and ICOs. Part II examines historical speculative bubbles and argues that the ICO market is a speculative bubble. Part III explores characteristics of those who invest in bubbles as well as the psychological biases that those investors may encounter. It presents psychological arguments for market behavior in an effort to counter the neoclassical economic claims for why a bubble cannot occur and identifies two distinct types of investors in ICOs—the smart money investors and noise traders. Part IV discusses the limited regulations currently governing the ICO market. Finally, Part V argues that an asymmetrically paternalistic regulatory scheme is the most fitting way to regulate the ICO market. Part V does not provide a comprehensive regulatory framework; rather, it argues for light-touch regulation of ICOs and offers examples for how to implement such regulation.

This Note is divided into five parts. Part I explores the history of psychological operations broadly, examining how information has been used to manipulate adversaries and foreign populations. Part II examines the development of technology and how social media has changed the way psychological operations are employed during peacetime to shape attitudes and intervene in sovereign affairs. Part III examines the current legal framework surrounding psychological operations and demonstrates how the gaps in that framework create legal grey zones for states to exploit through the use of disinformation on social media. Part IV discusses the role of international agreements in qualifying state use of “weaponized social media” as a prohibited intervention. It then considers the design of a multilateral treaty that addresses the limits of acceptable deliberate state behavior on social media when the use is intended to manipulate foreign populations during peacetime. This Note concludes by addressing the threat of emerging technologies and the need to reach an international consensus regarding permissible online behavior.

In Jesner v. Arab Bank, PLC, the Supreme Court held that foreign corporations are not subject to lawsuits under the Alien Tort Statute (“ATS”). Written by Justice Kennedy, the highly fractured opinion offered several reasons for its holding. Although commentators have already criticized various aspects of Justice Kennedy’s opinion, one point has not received meaningful consideration and merits correction. In his plurality opinion, Justice Kennedy attached significance to the placement of the Torture Victim Protection Act (“TVPA”) as a statutory note to the ATS in the U.S. Code. In so doing, he disregarded longstanding practice and black letter law that the placement of a statutory note in the U.S. Code by the Office of Law Revision Counsel (“OLRC”) does not have any substantive impact on the law’s meaning, interpretation, or application. This error merits correction by the Court for several reasons. Although it undoubtedly influenced Justice Kennedy’s interpretation of the ATS, its implications extend beyond this case. It will affect future ATS and TVPA cases. It also creates uncertainty over the status of the countless statutory notes that populate the federal code. And, it raises constitutional concerns by attaching legal significance to OLRC’s placement decisions.