Vol. 104 Issue 3

Considered one of the western hemisphere’s worst natural disasters in recorded history, the January 2010 earthquake in Haiti caused massive destruction, killing hundreds of thousands and leaving the country’s physical and political infrastructure in ruins. Enter the United Nations (U.N.). Pervasively present in Haiti even before the earthquake, the overall United Nations Stabilization Mission in Haiti (MINUSTAH) forces were increased, and its mission was expanded “to support the immediate recovery, reconstruction and stability efforts” in the aftermath of the earthquake. . . .

Public litigation is being privatized as public entities turn to private actors to perform, and sometimes to pay for, litigation on behalf of the state and federal governments. Consider the following examples:

  • The U.S. Department of Justice hires David Boies to lead antitrust litigation against the Microsoft Corporation.
  • The National Credit Union Administration (NCUA) hires two private law firms to represent it in litigation against large banks concerning toxic mortgage securities. One of those firms boasts “long-standing and continuous representation of the NCUA in various matters.”
  • Multiple states hire private attorneys to represent them in litigation against tobacco companies in exchange for a portion of the proceeds.
  • After the state attorney general refuses to sue, the Nevada governor creates a “Constitution Defense Fund,” supported by private donations, to pay for costs associated with prosecuting the state’s challenge to the Affordable Care Act (ACA). Other states’ challenges to the ACA are handled, in part, by a private firm and financed by a private lobbying group.
  • Private citizens, many from out of state, bankroll a special prosecutor’s efforts to target topless bars in Memphis.

Ben & Jerry’s ice cream company contributes $1 from every purchase at certain locations to support the defense of Vermont’s law requiring special labels for food containing genetically modified organisms. Ben & Jerry’s recently committed to using non GMO ingredients in its own products. . . .

CommonWealth was a publicly traded real-estate investment trust (REIT) organized under the laws of Maryland. It was founded by Barry Portnoy and a partner in 1986. By 2006, Portnoy and his son, Adam Portnoy, occupied two of the five seats of CommonWealth’s board of trustees, while two of the remaining seats were held by associates of the Portnoys, who also sat on the boards of other Portnoy REITs. The Portnoys also owned and controlled a company called RMR, which CommonWealth’s board hired to manage CommonWealth’s assets. . . .

“New originalism” presents a profound challenge to originalist determinacy—that is, to the notion that original constitutional meanings alone can resolve most constitutional controversies. Although new originalists purport to seek out and adhere to original meanings of constitutional provisions, they acknowledge that some original meanings are too thin to fully resolve many constitutional questions. Such acknowledgment stands in sharp tension with traditional claims of originalist determinacy. . . .

In the spring of 1554, the English Crown charged Nicholas Throckmorton, a member of the Warwickshire gentry, with high treason for his alleged role in the Wyatt Rebellion. Several months earlier Queen Mary Tudor, a Roman Catholic, had risen to power and intended to marry Prince Phillip II of Spain. Powerful Protestant forces among the English highborn sought to ensure that Queen Mary’s reign—and her marriage to Prince Phillip—was short-lived. Soon after the Queen’s ascension to the throne, Sir Thomas Wyatt of Kent and several coconspirators allegedly hatched a plot, depending upon whom one believes, to implore the Queen to marry an Englishman instead, or to assassinate her. . . .

Broadly, this Note considers the efficacy of targeted banking sanctions and asset freezes in inhibiting terrorism and proliferation financing. Specifically, it asks whether recent settlements paid by sanction-violating banks increase the long-term effectiveness of and compliance with sanction regimes. This Note contends that whereas the current U.S. policy of collecting billions of dollars in penalties is effective in deterring financial institutions from violating sanctions, it has the negative impact of encouraging banks to de-risk and leave high-risk industries and countries altogether. Overreactive de-risking greatly impairs the intelligence community’s ability to identify and track clandestine transactions. Thus, in the long term, the U.S. Department of the Treasury will struggle to obtain the information necessary to enforce existing targeted asset freezes and will lack the capacity to track funding routed to and from emerging national security threats. In addition to impairing U.S. intelligence capabilities, the current OFAC enforcement policy will eliminate the humanitarian protections of a targeted smart sanctions policy by limiting civilian access to banking services. That is, when financial institutions overreact to fines levied on similarly situated banks, they become reluctant to deal in any innocuous transaction or industry that is even tangentially related to a sanctions regime, thereby turning a targeted asset freeze into an indiscriminant one. . . .