Vol. 101 Issue 4

The Uthman opinions highlight a key consequence of the use of classified information in Guantánamo habeas proceedings: the production of classified opinions. Indeed, the vast majority of district and circuit court opinions in Guantánamo habeas cases feature at least some redaction. Some have been so redacted as to become virtually incomprehensible. This raises two questions, the answers to which have consequences for judicial legitimacy. First, what is the law when an opinion is redacted or classified? Second, how can the public and the political branches exercise meaningful oversight of the courts where judicial reasoning is hidden behind a wall of government secrecy? This Note addresses each of these questions in turn before proposing combining the dominant redaction approach with Judge Leon’s summary approach to maximize comprehensibility and transparency while avoiding wholesale declassification.

It seems obvious that there is something suspicious about a state entering into a contract only to later use its legislative power to escape from fulfilling that obligation. When the government enters into contracts, it binds itself according to the dictates of private law but, nevertheless, remains the sovereign. How can a space be preserved wherein a legislature can exercise its authority for the common good while simultaneously being bound to abide by agreements it made at an earlier time? This is the dilemma posed in a narrow band of Contracts Clause jurisprudence that culminates in United States Trust Co. of New York v. New Jersey. In that case, the Supreme Court attempted to solve the dilemma by reviewing a legislature’s repudiations of its own contracts with heightened scrutiny. Legislative repudiations of private agreements, though, would be accorded substantially more deference. This “dual standard of review” was justified by a reference to the “State’s self-interest” in altering or repudiating its own obligations. This all seems like good common sense, and since the promulgation of the doctrine, it has been continuously reaffirmed and supported by the Court. Despite this judicial consensus, the doctrine has been the subject of fierce criticism from the legal academy (with very few defenders). This Note will contribute to the debate about this doctrine and will conclude that it is entirely defensible. In the contemporary era, government contracting has become more prevalent than ever, and the government is again involved in alleviating the economy through various financial involvements. A sympathetic reassessment of the dual standard is appropriate and will hopefully inform the inevitable litigation following this recent recession.

This Article offers an initial assessment of the Supreme Court’s Spending Clause holding in National Federation of Independent Business v. Sebelius (NFIB), which addressed the constitutional challenge to the Affordable Care Act. As Justice Ginsburg pointed out, NFIB marks “the first time ever” that the Court has held that a spending condition unconstitutionally coerced the states. The implications of that holding are potentially massive, and some of the language in the decision, if read broadly, would seriously threaten the constitutionality of a broad swath of federal spending legislation.

Notwithstanding some of the Court’s language, this Article contends that the case is not best read as rendering federal spending conditions unconstitutional simply because they are attached to large amounts of federal money, change the terms of participation in entrenched cooperative programs, or tie together separate programs into a package deal. Rather, Chief Justice Roberts’s pivotal opinion is best read as adopting an “anti-leveraging principle” that will find coercion only where all three of these conditions are present at the same time. The anti-leveraging principle both makes the most sense of what the Chief Justice actually said in NFIB and does a better job of accommodating the relevant constitutional values than do plausible alternative readings of the case. Although that principle threatens the constitutionality of far fewer conditional-spending laws than do those alternative readings, it raises challenging questions about the constitutionality of certain spending conditions. And it gives states an important new tool in negotiations with federal administrators.

This Article puts forward the case for Securities and Exchange Commission (SEC) rules requiring public companies to disclose their political spending. We present empirical evidence indicating that a substantial amount of corporate spending on politics occurs under investors’ radar screens, and that share- holders have significant interest in receiving information about such spending. We argue that disclosure of corporate political spending is necessary to ensure that such spending is consistent with shareholder interests. We discuss the emergence of voluntary disclosure practices in this area and show why volun- tary disclosure is not a substitute for SEC rules. We also provide a framework for the SEC’s design of these rules. Finally, we consider and respond to the wide range of objections that have been raised to disclosure rules of this kind. We conclude that the case for such rules is strong, and that the SEC should promptly develop disclosure rules in this area.

Viewing the legal context of medical marijuana from a pharmacist’s perspective, the solution to medical-marijuana laws is not a matter of supporting or prohibiting its use; medical marijuana is in need of a better refined medical model. A proper medical model is composed of the prescribing of medicine by a licensed prescriber and the dispensing of medicine by a separate licensed entity, with attention to appropriate dosing and therapeutic use. The current method employed by medical-marijuana jurisdictions misses the mark. This Note will address the ever-growing complexities resulting from medical-marijuana laws, approaching the topic with an understanding that some form of medical marijuana will exist in the marketplace regardless of legal intervention. Without passing ethical or clinical judgments on the general acceptability of marijuana as a medicine, this Note will argue for reformation and uniformity of medical-marijuana laws on a national level.

Domestic and international law have, in different ways, recognized a human right to food since the twentieth century. The original reason for this recognition was the need to alleviate a particular type of food insecurity— “traditional” hunger, as manifested in conditions like malnutrition and underweight. The current public-health crisis of obesity, however, demands a reconsideration of this right. The food environment in the United States today is awash in high-calorie, low-nutrient food products that are often cheaper, on a relative basis, than more nutritious foods, leading to the overconsumption of the former by much of the American population. Merely ensuring a minimum level of food provision for the nation’s residents, therefore, no longer serves public health effectively. Rather, the right to food should be reoriented toward a right to nutrition, focusing on the relative nutritional quality of foods and increasing access to more nutritious foods. This right should also embrace some form of protection from the marketing and selling of foods likely to cause obesity, particularly for vulnerable segments of the population like children.

This Article demonstrates how a right to nutrition might be operationalized in the domestic legal system. In doing so, it uses a broader meaning of “right” than is common in American jurisprudence, which traditionally conceives of rights as constitutionally based and judicially enforced. After rejecting the possibility of a right to nutrition as a positive constitutional right, the Article offers four other models by which a right to nutrition might emerge: namely, as an indirect constitutional right; as a common law concern; through the public-utility paradigm; and as a matter of legislative grace. Borrowing from the implementation of other nonconstitutional positive rights, like the right to housing, the Article shows how a right to nutrition might be viable in each of these settings, and how these models are highly interdependent. The Article concludes with thoughts on how comparative institutional susceptibility to food-industry influence may affect the ability of different governmental actors to promote nutrition.

Privatization’s proponents are branching out. They have traditionally relied on government service contracting to boost efficiency, maximize budgetary savings, enhance unitary control over the administrative state, and reap political dividends. Now, however, these proponents are also blazing newer, bolder paths. They are experimenting with more powerful instruments that offer surer, quicker routes to promote privatization’s aims.

This Article explores how these new instruments uniquely challenge the administrative state, reorienting public programs, reversing longstanding practices, and forcing courts to recalibrate core administrative law doctrines. Specifically, these new instruments enable school districts to “teach to the test,” states to barter away sovereign authority, and presidents to politicize the bureaucracy. They also test the robustness of foundational legal precepts under-girding hard-look review, Chevron and Skidmore deference, and constitutional due process. Ultimately, the emergence of these new instruments reflects the extent to which government today is commingling political and businesslike agendas in ways both liberating and threatening.