Volume 164, Issue 5 
April 2016
Articles

Combining Constitutional Clauses

Michael Coenen
Some constitutional questions implicate multiple, overlapping provisions of the Constitution’s text. In resolving these questions, the Supreme Court typically addresses each of the relevant clauses in separate and sequential fashion, taking care not to let its analysis of one clause affect its analysis of any other. But every so often the Court takes a different approach, looking to the clauses in combination rather than in isolation. The Court has sometimes suggested, for instance, that two or more rights‐based provisions might require the invalidation of government action, even where no single provision would do so on its own. The Court has also suggested that a federal law might fall too far outside the scope of Article I and too far within the scope of a rights‐based provision to withstand constitutional attack. And the Court has very occasionally suggested that a congressional enactment might qualify as a necessary and proper means of enforcing multiple enumerated powers at once. In all of these cases, the Court has embraced (or at least tinkered with) forms of what I call “combination analysis”—justifying judicial outcomes by reference to multiple clauses acting together, as opposed to individual clauses acting alone.

This Article presents a systematic examination of combination analysis in U.S. constitutional law. In so doing, it seeks to make four contributions to the burgeoning scholarly literature on the subject. First, the Article collects and taxonomizes existing examples of combination analysis in U.S. Supreme Court doctrine, demonstrating that combination arguments have enjoyed a wider range of application than has thus far been supposed. Second, the Article examines the conceptual structure of combination analysis, revealing some underappreciated functional similarities between combination‐based constitutional reasoning and other more commonly accepted features of public law adjudication (including, for instance, arguments based on constitutional structure and arguments based on the constitutional avoidance canon). Third, the Article sorts through the practical pros and cons of combination analysis, shedding light on the questions of whether and (if so) when courts should advance combination arguments in the course of resolving a particular case. Finally, the Article offers some preliminary guidance regarding the implementation of combination analysis, identifying in particular four different types of “combination errors” that courts should strive to avoid. What emerges from the discussion is the conclusion that combination analysis represents a real and conceptually valid method of constitutional reasoning, which, at least under some circumstances, stands to benefit the development of constitutional law.


A Complainant‐Oriented Approach to Unconscionability and Contract Law

Nicolas Cornell
This Article draws attention to a conceptual point that has been overlooked in recent discussions about the theoretical foundations of contract law. I argue that, rather than enforcing the obligations of promises, contract law concerns complaints against promissory wrongs. This conceptual distinction is easy to miss. If one assumes that complaints arise whenever an obligation has been violated, then the distinction does not seem meaningful. I show, however, that an obligation can be breached without giving rise to a valid complaint. This Article illustrates the importance of this conceptual distinction by focusing first on the doctrine of substantive unconscionability. I claim that the doctrine can be best explained by the way in which a party who engages in exploitative behavior may lose her moral standing to complain. It is because such a party has lost her moral standing to complain that the law, through unconscionability doctrine, bars her from bringing a legal complaint. This explanation avoids the oft ‐issued charge of paternalism and it also offers benefits over an alternative state-oriented account developed recently by Seana Shiffrin. Using the conceptual distinction behind this account of unconscionability, this Article further argues that recent theoretical debates about the relationship between contract law and morality have been largely misconceived. Those debates have focused on whether contract law and morality impose parallel obligations. Once one appreciates the difference between imposing obligations and recognizing complaints, the comparison looks quite different. Contract law recognizes valid complaints against broken promises, much as morality recognizes moral complaints.

The Failure of Immigration Appeals

David Hausman
Within the same immigration court, some immigration judges are up to three times more likely than their colleagues to order immigrants deported. Theories of appeal and of administrative adjudication imply that appeals processes should increase consistency. This Article uses an internal administrative database, obtained by Freedom of Information Act request, to demonstrate that the appeals process for the immigration courts—a system of administrative adjudication that makes as many decisions as the federal courts—does not promote uniformity. The removal orders of harsher immigration judges are no more likely to be reversed on appeal by the Board of Immigration Appeals or federal courts of appeals.

Why? I find that the Board of Immigration Appeals and the courts of appeals fail to promote uniformity across immigration judges because they review an unrepresentative sample of cases. Harsher immigration judges more often order immigrants deported early in their proceedings, before they have found a lawyer or filed an application for relief. Immigrants without lawyers rarely appeal. The Board therefore rarely reviews the removal orders of immigrants who might have meritorious claims but who are assigned harsh judges and lack lawyers at the beginning of their proceedings.

These quantitative findings, together with interviews and immigration court observation, lead to three incremental, practical policy recommendations. First, the Board of Immigration Appeals and the courts of appeals should adopt a less deferential standard of review of an immigration judge’s denial of a request for a continuance to seek representation. Second, the government should take simple steps to make applications for relief easier to fill out. Third, the Board of Immigration Appeals should hear a random sample of cases in addition to those appealed by the litigants. More broadly, these findings offer further reason—in addition to basic access‐to‐justice concerns—to support calls for the government to appoint counsel for immigrants in removal proceedings.


Comments

Hitting Reset: Devising A New Video Game Copyright Regime

Drew S. Dean
In this Comment, I argue that obtaining and sustaining optimal video game innovation and creativity requires two complementary advancements by the two main actors in the video game copyright space—the U.S. courts and the video game developers themselves. U.S. courts should maintain and build upon recent precedent in the Tetris Holding, Spry Fox, and DaVinci cases and recognize a greater sphere of protectability for game mechanics that is sensitive to copied elements. As I will show, the approaches in Tetris Holding, Spry Fox, and DaVinci strike a functional balance between the competing needs of protecting copyrighted expression and enabling further innovation. The cases also send a signal to clone developers that “cloning” may no longer be shielded from liability. Following these cases, U.S. courts can “rebalance” copyright for video games by revising how the idea–expression dichotomy, the merger doctrine, and the scènes à faire doctrine apply to video games and by expanding the sphere of protectable expression in video games. To that end, independent game developers who create new premises and mechanics should take conscious steps to infuse their software with unique expression to make their works more protectable and fend off clones. Otherwise, they must adopt marketing practices that enable them to more quickly monetize games that will inevitably be cloned. Together, these two sets of changes can foster greater protection for innovative game software and a richer marketplace for consumers, while not overextending the reach of copyright to threaten the iterative innovation that underpins video game development.

In Part I, I present an overview of the video game industry as a whole, with a focus on the increasingly important role mobile gaming plays. In Part II, I discuss the basic elements of copyright doctrine and how case law as applied to video games has evolved over time and shaped the industry. In Part III, I address the potential shifts in case law indicated by the Tetris Holding, Spry Fox, and DaVinci cases. In Part IV, I discuss a recent example of cloning in mobile gaming, and how a modified copyright regime could have led to a more preferable outcome. Finally, in Part V, I suggest steps for video game developers to take in game development to better protect themselves.


Preambles in Treaty Interpretation

Max H. Hulme
The New START Treaty debate provides a glimpse of what is a general state of uncertainty surrounding preambles, the roles they should play, and the roles they do in fact play in international law and treaty interpretation. The diverse views espoused by participants in the New START debate are notable for three reasons: First, they represent both ends of the spectrum of possible views on the question. Second, the individuals expressing those views are in many cases experienced players in the realm of foreign relations. And third, while both extremes of the debate can be understood as matters of common sense, neither seems to correspond to the approach of the VCLT or to the actual conclusions of international tribunals that have wrestled with the question of preambles. In short, their disagreement begs the question: Do treaty preambles in fact matter?

This Comment argues that the answer must be in the affirmative. Contrary to the propositions on display in the New START debate, there is quite simply no basis for a broad statement that preambles, by their very nature, are legally inconsequential. Customary international law, as embodied in the VCLT, supports this conclusion—although it does not provide clear guidance. Nevertheless, in practice, preambles are a frequent subject of discussion among treaty makers, parties to disputes, and adjudicators alike. This state of affairs naturally raises an additional query: To what extent do treaty preambles matter? This Comment aims to construct an answer to this question.


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