Volume 92 Number 2 December 2007ARTICLESState Habeas Relief for Federal Extrajudicial Detainees Beyond Liability: Rewarding Effective Gatekeepers CORPORATE GOVERNANCE—This article adds to the emerging literature on rewards to promote effective capital market gatekeeping. Capital market gatekeeping theory traditionally relies heavily on threats of legal liability for failure to perform legally mandated functions (along with a presumed constraint imposed by reputation effects). The ineffectiveness of many gatekeepers in the past decade revealed limitations of the liability strategy and yet reforms continue to emphasize legal duties and liability for gatekeepers. This emphasis also has the negative side effect of discouraging gatekeepers from willingness to perform desired functions—such as to detect for fraud. Using rewards can in-duce gatekeepers to perform desired functions and add positive incentives to encourage them to be more effective in vetting enterprises seeking access to capital. Judicial Interpretation in the Cost-Benefit Crucible STATUTORY INTERPRETATION—Professor Adrian Vermeule's new book, Judging Under Uncertainty, argues that while no one can empirically determine whether any net benefits arise from judicial use of legislative history or other interpretive methods that go beyond simple enforcement of plain text, such interpretive methods do impose substantial costs. Vermeule concludes, therefore, that courts should discard such interpretive methods. This article suggests, first, that the extent of the costs incurred as a result of applying interpretive methods other than simply enforcing plain text is far from clear. This article also suggests that it is uncertain whether discarding such methods would result in any cost savings. First, costs would remain if only some judges adopted Professor Vermeule's theory. Second, even if all judges adopted it, cost savings from the use of simpler interpretive methods might be offset by other, new costs that produce absurd results, like those imposed by the judicial enforcement of clear but erroneously drafted statutory text. Finally, this article argues that there are institutional reasons to believe that courts do get net benefits from methods that permit them to look beyond plain statutory text in some cases; most notably, the fact that courts interpret statutes at the moment of implementation puts them in a good position to detect statutory drafting errors. For these reasons, this article recommends against adoption of Professor Vermeule's interpretive theory. A New Vision of Public Enforcement FEDERAL STATUTORY LAW—Civil rights laws are not self-enforcing. Enforcement mechanisms, therefore, need to be studied as part of the larger debate on the form and direction of civil rights law. The current decline of the ability of the private attorney general to fairly and consistently enforce our civil rights laws strengthens the argument for a renewed emphasis on the importance and form of government enforcement. Focusing on the Americans with Disabilities Act, this article presents a new vision of public enforcement. After explaining the historical, theoretical, and practical strengths of public enforcement—all things that can-not be completely “outsourced” to private attorneys general—this article suggests that public enforcement officials need to renew their commitment to structural litigation, especially in areas where the profit motive for private lawyers is low, non-compliance appears systemic, there is a vacuum for case development, and individual plaintiffs have standing difficulties challenging broad-ranging discrimination. Recognizing that litigation, even of the structural variety, will always be an incomplete enforcement strategy, this article also offers a novel application of "new governance" theory to public enforcement activity. In particular, this article identifies several areas where public enforcement officials could help transform the way that ADA norms are established. In these areas, rather than relying on courts to make decisions interpreting the statute's broad principles, the government could foster a broader cross-section of interested stakeholders cooperatively deciding on individualized and contextualized solutions. NOTESNo Free Parking: Obtaining Relief from Trademark-Infringing Domain Name Parking TRADEMARK LAW—Trademarks are indispensable tools for businesses and consumers. Although the Internet serves as an efficient means for distributing trademark-related information, it nevertheless provides a platform that can reduce the value of trademarks. In particular, commercial domain name parking—the practice of registering domain names and setting up placeholder websites filled with advertisers' hyperlinks—often impermissibly exploits trademarks, resulting in trademark infringement and consumer confusion. This note advocates taking action, on behalf of both trademark owners and consumers, against those who commit this Internet-based harm. This note first presents the purposes underlying trademark law and develops the concept of domain name parking. It then discusses the statutory framework available to contest trademark infringement. This note suggests that the current federal statutory framework may adequately address individual trademark owners' complaints of infringement via domain name parking. However, current law fails to provide a comprehensive remedy against the activity as a whole and does not sufficiently protect consumers from the consequences of trademark misuse. Finally, this note proposes that the Federal Trade Commission investigate this activity and initiate suits against entities involved in domain name parking schemes. How the Presumption Against Extraterritoriality Has Created a Gap in Environmental Protection at the 48th Parallel INTERNATIONAL LAW—Harmful pollutants are crossing the United States-Canada border as actors on either side of the boundary export environmental risk and harm through transboundary rivers. However, public international law has been unable to provide a remedy for the problem. Furthermore, efforts to address the problem in national courts have run afoul of the presumption against extraterritoriality. This rule is used to limit the application of environmental statutes to wholly territorial pollution cases. This note begins by explaining why the public international law system is ill-suited for addressing transboundary pollution along the United States-Canada border, and why it is appropriate for national courts to rule on these cases. It continues by examining the jurisdictional rules in both the United States and Canada that control the use of statutes in transboundary cases. In the United States, the presumption against extraterritoriality has developed exceptions that may allow for the application of environmental cases where either the conduct or the effects are located within the country. In Canada, recent developments in jurisdictional law allow courts to hear cases having a real and substantial connection to the forum. This note draws on insights provided by these two jurisdictional frameworks to propose a collaborative model for addressing transboundary cases. Under this model, the courts of each country have concurrent jurisdiction over transboundary cases, but work together to develop procedural rules that allocate jurisdiction over a case based on the court able to provide an adequate remedy. |
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