Volume 92 Number 1 November 2007ARTICLESThe Bill of Rights in the Early State Courts CONSTITUTIONAL LAW—The Bill of Rights originated as a constraint only on the federal government. As every law student learns, therefore, in the 1833 case of Barron v. Baltimore, the Supreme Court dis-missed a Fifth Amendment takings claim against a state. This article shows, however, that early state courts regularly invoked and applied the provisions of the Bill of Rights in reviewing state law and state executive action. Barron meant only that the federal courts would not apply the provisions of the Bill of Rights to the states. State courts could decide independently to apply those provisions against their own state governments, and the jurisdictional limits of the 1789 Judiciary Act shielded those state court decisions from Supreme Court review. Largely forgotten today, state court applications of the Federal Bill of Rights against state government represented a vibrant body of constitutional law in the early Republic. Restoring this history challenges the conventional account that states were mostly unconstrained until ratification of the Reconstruction-era amendments, and that only in the mid-twentieth century did courts begin to protect adequately the rights of individuals. Instead, early constitutional law was multifaceted, sophisticated, and innovative, with a diverse set of jurists invoking and applying an array of constitutional rules to keep government at all levels in check. The history of the Federal Bill of Rights in the early state courts points also to some deficiencies of modern constitutional law. Compared to the antebellum era, constitutional law today is radically consolidated. Among other things, state courts can-not extend federal constitutional protections beyond the limits the Supreme Court itself sets; this leaves individuals with fewer places to turn to protect their rights. Consolidation is also inconsistent with federalism. The historical practice of allowing state courts leeway to interpret independently the Federal Constitution reflected the importance of state courts in our constitutional design and the benefits that accrue to the system as a whole when individual state courts are able to make different choices. In addition, consolidation has weakened state constitutional law, as developed and applied by the state courts. Incorporation of federal constitutional protections, as defined by the Supreme Court, has displaced state constitutional law as the principal source of individual rights. Rather than decide independently what provisions of their own state constitution mean, state courts have tended to hew to the Supreme Court’s understandings of analogous provisions in the Federal Constitution. State courts have lost their voices under the Federal Constitution, and they have fallen out of practice of speaking under their state constitutions. Finally, consolidation helps account for the enormous tension that is characteristic of our current regime when federal constitutional rights are, ultimately, dependent upon the decisions of the Supreme Court. Punitive Damages and Valuing Harm ENVIRONMENTAL LAW—In 2003, the Supreme Court created a presumption that only single-digit ratios of punitive damages to compensatory damages would satisfy substantive due process limits. The Court also created an exception to this presumption, applicable when the defendant’s misconduct results in only a small amount of compensatory damages or when harm is difficult to value. While lower courts have properly departed from single-digit ratios where the compensatory damages are small, they have had more difficulty doing so when harm is difficult to value. This article proposes that, as a result, lower courts are mechanically—and incorrectly—adhering to a single-digit ratio in cases where the Court’s current framework and the purposes of punitive damages justify departure from that ratio. This article uses cases involving intentional torts on the one hand, and private party actions involving environmental harm on the other, to illustrate how lower courts have failed to fully implement the exception to single-digit ratios. This article proposes that, in conducting a due process analysis of punitive damages, courts should focus on the existence of uncompensated harm to either depart from single-digit ratios or calculate punitive damages based on the full amount of harm even if that amount exceeds the compensatory damage award. To avoid “windfalls” to plaintiffs in cases involving harm to public natural resources, state legislatures or state courts should utilize a “split-recovery” approach to direct to governmental or nonprofit coffers a significant portion of the punitive damages awarded based on public harm. Such an approach is consistent with due process and still fulfills the purposes of punitive damages. Integrating Investment Treaty Conflict and Dispute Systems Design INTERNATIONAL LAW—The debate on the renewal of the Trade Promotion Authority Act has brought public scrutiny to the terms of investment treaties—including dispute resolution provisions. In a so-called litigation explosion, investors resolve disputes against host governments through international arbitration mechanisms in investment treaties, and there is little evidence of reliance on other processes like mediation. This escalation has lead to a teething period where parties and nonparties have expressed divergent views as to the efficacy, efficiency, and fairness of the dispute resolution process. With billions of dollars and sovereignty at stake, the dispute resolution system is at a critical historical juncture. In an effort to examine the system’s integrity, this article describes unexplored synergies between investment treaties and Dispute Systems Design. It considers how systematic design of dispute resolution systems can create more effective conflict management, and it assesses the costs and benefits of such an approach. The article suggests a new area of scholarship integrating Dispute Systems Design and investment treaties to create dispute resolution mechanisms that will maximize the success and legitimacy of investment treaty conflict resolution. NOTESTo Fix or Not to Fix: Copyright's Fixation Requirement and the Rights of Theatrical Collaborators COPYRIGHT LAW—Despite its typical responsiveness to technological advances, copyright law has not kept pace with the emergence of the director as the primary player in American theater, leaving the contributions of this essential, creative artist without recognition or protection. Because work must be original, authored, and fixed to warrant copyright protection, critics cite the lack of fixation in live theater as a fatal obstacle to protection. This note contends that stage direction is not only original and authored, but that contemporary legislative and judicial dilution of the fixation requirement has led to a doctrinal framework flexible enough to render stage direction copyright-able as a derivative work. This note first traces the history and purpose of the Copyright Act and its requirement that work be "fixed in any tangible medium of expression." It then explores the relationship between copyright law and theater directing. Finally, this note considers solutions to the issue of the intellectual property rights of stage directors and argues that, given the lack of robustness in the fixation doctrine, the staging of a play is sufficiently fixable to warrant protection under the Copyright Act. |
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