Vol. 101 Issue 5

This Note addresses the challenges and options arising from private contracting of U.S. government covert activities. I argue that, because of the difficulty of remedying ex post facto problems with these contracts, the government must limit the contracting out of such functions in the first place. Part I analyzes the restrictions in U.S. law that apply to contractor performance of covert action, as well as the benefits and risks of such involvement. Part II discusses the implications for contractor immunity when things go wrong under contracts of this type and the challenges of enforcing the legal restrictions. Part III proposes solutions for a better covert action contracting policy.

This Article highlights the role of capture in providing a normative foundation for regulatory review of administrative action, which, at the federal level, is conducted by the Office of Information and Regulatory Affairs (OIRA) within the White House Office of Management and Budget (OMB). It also establishes a reform agenda to help bring the practice of review in line with its anticapture justification. There are two traditional justifications for OIRA review: that centralized review facilitates the exercise of presidential authority over agencies, and that bureaucratic tendencies toward overzealousness require a centralized checking response. Both of these justifications are problematic, however. The normative desirability of maximizing presidential power is subject to debate, and OIRA’s contribution to increasing presidential control is controversial. Bureaucratic incentives can lead to both overregulation and underregulation, raising doubts about the need for a systematic check focused solely on the former. An anticapture function for OIRA provides a more promising ground for regulatory review. OIRA has four important features that, in principle, can facilitate an anticapture role: its generalist nature; its coordination function; its use of cost–benefit analysis; and its tradition of independent leadership. There are, however, elements of OIRA review that undermine its anticapture potential, most importantly the near-exclusive focus on the review of agency action. The failure of an agency to act can be just as detrimental to social well-being as overzealousness, and special interests may seek deregulation, delay, and weak regulation as often as overregulation. This Article proposes a specific mechanism for OIRA to engage in review of agency inaction by examining petitions for rulemakings filed with agencies. This procedure cabins OIRA’s inaction review powers within a fairly limited field, making the task workable, and takes advantage of information held by parties outside the government.

The relationship between the Federal Arbitration Act (FAA) and state public policy has long been unsettled. According to some judges, scholars, and litigants, the FAA precludes courts from invalidating arbitration clauses under the contract defense of violation of public policy. However, in a practice that is impossible to square with that understanding of FAA preemption, courts have traditionally nullified arbitration clauses to advance a range of state interests, including preserving substantive rights under state law. Nevertheless, in AT&T Mobility LLC v. Concepcion, the U.S. Supreme Court held that the FAA eclipses a rule that deemed class-arbitration waivers to be unconscionable when they prevented plaintiffs from pursuing numerous, low-value state law claims. Both Justice Scalia’s majority opinion and Justice Thomas’s decisive concurrence strongly implied that state public policy is not a permissible basis for striking down an arbitration clause. As a result, lower courts are now compelling arbitration—often through gritted teeth—of lawsuits that are destined to fail.
Counterintuitively, I argue that Concepcion holds the seeds of an approach to FAA preemption that gives judges greater freedom to strike down arbitration provisions to further state interests. FAA preemption stems from its centerpiece, section 2, which makes agreements to arbitrate specifically enforceable “save upon such grounds as exist at law or in equity for the revocation of any contract.” According to the conventional wisdom, the plain language of this “savings clause” immunizes arbitration clauses from state public policy: few state regulations apply across-the-board to “any contract.” Yet the courts and commentators who embrace this view have not explained why its rigid textualism is appropriate in the context of the FAA, which displaces state law through the purposivist mechanism of obstacle preemption. Concepcion implicitly recognizes this disconnect and breaks new ground by relying not on the statute’s text, but on its “purposes and objectives.”
I show that the purposivism that animates Concepcion is superior to textualist approaches to FAA preemption. The incoherence of the any-contract test and the centrality of context and legislative history to obstacle preemption suggest that purposivism should be the primary technique for mapping the FAA’s dominion over state law. However, this path leads to a starkly different endpoint than the one Concepcion reached. A faithful, full-bore examination of Congress’s goals reveals that the phrase “grounds . . . for the revocation of any contract” encompasses all traditional contract doctrines, including the venerable doctrine of violation of public policy. Thus, the public policy defense should only be preempted when it thwarts the FAA’s “purposes and objectives.” I propose a test to determine when this has occurred and apply it to controversial issues now pending in courts, including class arbitration, the unconscionability doctrine, and judicial or legislative rules that prohibit that arbitration of particular claims.

This Note argues that courts should apply the clear statement principle whenever the AUMF—or the NDAA 2012—is invoked to detain individuals arrested in the United States in indefinite military detention without trial, so long as their status as an enemy combatant is in dispute. The clear statement principle serves the purpose of the constitutional avoidance canon. It rests on the principle that “[i]n traditionally sensitive areas . . . the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.” Reading § 1021 of the NDAA 2012 and the AUMF broadly would raise serious due process and separation of powers concerns. It would amount to displacing civilian law enforcement with martial law on U.S. territory, thereby circumventing the individual rights and the restraints on government provided for in the Constitution. Supreme Court precedent in cases involving ambiguous wartime statutes raising similar concerns supports the application of a clear statement principle in this context.
Several scholars of constitutional law have advanced arguments about when and how a clear statement principle should apply to the AUMF on U.S. territory. These arguments have generally focused on the status of the individual as the triggering factor. Some have argued that the clear statement requirement is triggered where the AUMF is invoked to detain U.S. citizens on U.S. territory, but that it does not apply to noncitizens. Others have argued that it applies if civilians are detained on U.S. territory, but not if the individual is deemed by the executive branch to be a “combatant.” This Note argues that these arguments fail to adequately address the constitutional concerns raised by a broad construction of the AUMF detention authority as applied on U.S. territory. First, theories that make citizenship the trigger for the clear statement principle ignore that, as a matter of settled constitutional law, the rights guaranteed under the Due Process Clause apply to citizens and noncitizens alike. Reading the AUMF as authorizing indefinite military detention without trial of noncitizens arrested on U.S. territory would violate the Due Process Clause of the Fifth Amendment. Second, arguments that exclude those deemed to be “enemy combatants”—at least where that status is in dispute—render the clear statement principle meaningless in practical effect. It would never be triggered because the executive branch is always going to claim that the individual it wishes to detain under the AUMF is an “enemy combatant” under its definition of that term. This approach thus leaves courts in the same position as they would be without the clear statement principle: they are forced to judge the legitimacy of the executive branch’s exercise of military power in a particular case by interpreting ambiguous statutory language as applied to a particular set of factual circumstances. This argument also fails to give adequate attention to the more fundamental question of whether it is constitutionally legitimate to apply law-of-war principles in the United States, in the absence of battlefield conditions, in lieu of the criminal justice system.

This Article divides the events of 1866 into four phases. First, I discuss the early framing debates and the political rupture between congressional Republicans and President Andrew Johnson that occurred in the spring of 1866. Johnson’s March 27 veto of the Civil Rights Act and the congressional override were major public events and signaled what would become the central issue in the fall elections: whether the southern states should be readmitted without condition, or whether they must first be forced to protect the rights of citizens of the United States. The second Part discusses the final framing and initial public discussion of the Fourteenth Amendment during the summer of 1866. The broadly publicized speech of Jacob Howard that introduced the Amendment to the Senate and to the country confirmed what observers of the Thirty-ninth Congress had long suspected: Congress proposed to require the states to protect the constitutionally enumerated rights of American citizens (through the Privileges or Immunities Clause) and the natural rights of all persons (through the Due Process and Equal Protection Clauses). In particular, states must respect the enumerated rights of American citizenship, from the substantive rights listed in the first eight Amendments to the equal protection principles declared by the Comity Clause. In response to what he viewed as a radical intrusion on the reserved powers of the states, President Johnson challenged the right of the rump Congress to propose constitutional reform and called on the country to make its opinion on the matter known in the fall election.
The third Part examines the dramatic and tragic events of the summer of 1866 that sharply focused political debate in the fall and clarified to the electorate what was at stake in the upcoming election. The state-sanctioned attack on black delegates meeting in convention in New Orleans on July 30, 1866, shocked northern voters and became a Republican clarion call for ratification of the Fourteenth Amendment. When President Johnson had his administration declare the proposed amendment unnecessary due to the existing protections in state constitutions, Republicans pointed to the massacre in New Orleans as a stark example of why states must be required to protect the constitutionally enumerated rights of speech and assembly.
The fourth and final Part of the Article discusses the aftermath of the Republican landslide and Johnson’s final attempt to defeat the Fourteenth Amendment. Working with a group of conservative advisors, Johnson drafted an alternate “fourteenth amendment” that deleted the Privileges or Immunities Clause and replaced it with a passive restatement of the Comity Clause. After months of political debate, it was clear the Privileges or Immunities Clause would force the states to protect rights that under the original Constitution had been left to state control. By erasing that Clause and replacing it with a restatement of the Comity Clause, Johnson’s version would do nothing more than require states to provide sojourning citizens equal access to a limited set of state-conferred rights. Johnson’s effort failed, but the attempt reflects the commonly accepted distinction between the Comity Clause of Article IV and the proposed Privileges or Immunities Clause—a critical point that cuts against scholarly attempts to equate the rights covered by both clauses. The Article closes with a discussion of remaining questions about the meaning of the Privileges or Immunities Clause and the need for a comprehensive theory of Section I of the Fourteenth Amendment.

The prison law library has long been a potent symbol of the inmate’s right to access the courts. But it has never been a practical tool for providing that access. This contradiction lies at the core of the law library doctrine. It takes little imagination to see the problem with requiring untrained inmates, many of them illiterate or non-English speakers, to navigate the world of postconviction relief and civil rights litigation with nothing more than the help of a few library books. Yet law libraries are ubiquitous in American prisons. Now, in light of a technological revolution in legal research methods, prison libraries face an existential crisis that requires prison officials, courts, scholars, and inmates to reconsider the very purpose of the prison law library. This Article takes up that challenge by providing a novel historical account of the prison law library’s development.
This Article uses original historical research to show how prison law libraries arose, not as a means of accessing the courts, but rather as a means of controlling inmates’ behavior. By placing the origin of the prison law library in the first decades of the twentieth century—half a century earlier than typical accounts—this Article shows how the law library evolved to take on a new purpose in the 1960s and 1970s, when the Supreme Court and other courts first began to fashion a law library doctrine. The central argument of this Article is simple: The courts’ attempts to graft an access-to-courts rationale onto a law library system that had developed for other purposes led to a law library doctrine riddled with contradictions and doomed to failure. This historical account helps explain a prison law library system that never really made sense in terms of providing access to the courts. As prisons look to update their law libraries in light of sweeping technological changes, it is all the more important to understand the history of the law library system so that authorities can plan for its future.