Current Issue

  • Volume 69,
  • Number 6 -
  • March 2020

Articles

Transferable Sovereignty: Lessons from the History of the Congo Free State
Joseph Blocher & Mitu Gulati
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In November 1908, the international community tried to buy its way out of the century’s first recognized humanitarian crisis: King Leopold II’s exploitation and abuse of the Congo Free State. And although the oppression of Leopold’s reign is by now well recognized, little attention has been paid to the mechanism that ended it—a purchased transfer of sovereign control. Scholars have explored Leopold’s exploitative acquisition and ownership of the Congo and their implications for international law and practice. But it was also an economic transaction that brought the abuse to an end.

The forced sale of the Congo Free State is our starting point for asking whether there is, or should be, an exception to the absolutist conception of territorial integrity that dominates traditional international law. In particular, we ask whether oppressed regions should have a right to exit—albeit perhaps at a price—before the relationship between the sovereign and the region deteriorates to the level of genocide.

Backdoor Purposivism
Anita S. Krishnakumar
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It has become standard among statutory interpretation commentators to declare that, “We are all textualists now.” The comment stems from the observation that in the modern, post-Scalia era, all of the Justices on the U.S. Supreme Court pay significant attention to statutory text when construing statutes and, relatedly, that legislative history use by the Court as a whole has declined since its heyday in the 1970s. The account of textualism’s triumph is so prevalent that some scholars have declared purposivism—or at least traditional purposivism—essentially defunct. Two prominent textualist scholars in particular have suggested that there is a “new purposivism” at work on the modern Court and that this purposivism is textually constrained, limiting its focus to the means identified in the text of the statute rather than the underlying policy objectives motivating the statute—or, alternately, using purpose as a threshold consideration in determining whether a statute’s text is ambiguous in the first place.

This Article challenges the conventional “purposivism is dead or dying” narrative in two important ways. First, relying on data from an empirical analysis of 499 Roberts Court statutory interpretation cases decided between 2006 and 2017, it argues that traditional purposivism is alive and well on the modern Supreme Court. That is, while purposivist Justices in the modern era do pay attention to text and invoke textual canons in a way that their 1970s purposivist counterparts did not, modern purposivists have not abandoned the traditional purposive approach of identifying a statute’s policy objective and adopting the construction that best fits that objective. On the contrary, modern purposivists regularly invoke statutory purpose, intent, and legislative history—even if the Court as a whole does not. Second, and perhaps more importantly, the Court’s textualist Justices have been quietly engaging in a form of purposive analysis that comes closer to traditional purposivism than scholars and jurists have recognized. That is, the textualist Justices regularly have been using pragmatic reasoning, as well as traditional textual canons such as noscitur a sociis and the whole act rule, to impute a specific intent or policy goal to Congress. This practice, which I call “backdoor purposivism,” goes beyond using text as the best evidence of statutory purpose and entails significant judicial guesswork and construction of legislative purpose and intent.

The Article suggests that, in the end, there may be less distance between textualists and purposivists than the old debates suggest—but because textualists have embraced purpose and intent in unexpected ways, rather than because, or merely because, purposivists have become more text focused. It concludes by advocating that both textualists and purposivists employ interpretive resources outside their preferred toolkit to check the accuracy of their initial statutory readings and to curb the influence of their inherent personal biases.

Notes

“Souls Aren’t Saved Just in Church Buildings”: Defining “Religious Exercise” Under the Religious Land Use and Institutionalized Persons Act
Taylor Luckey Brennan
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Throughout its First Amendment jurisprudence, the Supreme Court has acknowledged the difficulty inherent in determining the scope of the multivalent term “religion.” The Court has repeatedly struggled to articulate workable definitions of religion, religious belief, and religious exercise. And the struggle is ongoing. The Religious Land Use and Institutionalized Persons Act (“RLUIPA”) protects “religious exercise” in the land-use context. If a claimant can prove that its religious exercise is substantially burdened by a land ordinance or zoning regulation, it may receive an exemption.

Although RLUIPA offers a definition of “religious exercise,” it remains unclear just what types of land uses and activities are protected by the statute’s broad scope. Surely RLUIPA protects formal worship uses, such as hosting a mass or offering Sunday School classes, but does it protect a homeless shelter on church grounds? Residential housing for synagogue staff? A Christian radio show?

This Note examines the current framework used to assess religious land-use claims under RLUIPA, arguing that this analysis not only leads to inconsistent outcomes but also impermissibly requires judges to involve themselves too deeply in questions of religious belief. Recognizing the danger in having judges act as the arbiters of religious belief, this Note proposes an alternative criterion for what uses ought to count as religious exercise: sincerity alone. If a land use is considered to be a sincere extension of a religious person or entity’s religious belief it should qualify as religious exercise. This principle is supported by the Court’s own First Amendment jurisprudence and the text and legislative history of RLUIPA.

Constructing a Legal Framework for the
Expansion Proposals of Collection Museums

Colleen O’Leary
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In 2018, The Frick Collection, a museum featuring the private art collection of Henry Clay Frick and housed in the Frick family’s private residence, finally received approval from the New York City Landmarks Preservation Commission to expand its physical footprint to accommodate its growing number of visitors. Official sanctioning of the plan came after years of consternation, however, demonstrating the competing legal principles and conflicting interests that emerge when collection museums seek to expand their physical structures.

Collection museums, like the Frick, are institutions created from individuals’ private art collections that were themselves amassed to found and open the museum. Because collection museums possess a defining characteristic—a physical arrangement that integrates artwork, interior design, physical building, and landscape—proposals to alter or expand collection museums threaten to upset their unique aesthetic and experiential natures.

To effectively balance the public’s right to express its interests with the collection museum’s autonomy to determine its institutional needs, this Note assesses legal frameworks for understanding the complex intersection of interests that are raised by collection museums’ proposals to expand. Critical analysis of the trust framework, even when supplemented by nonlegal constraints, reveals its shortcomings. Ultimately, a property-based framework emerges as the preferable framework, capable of enfranchising the public while also maintaining a collection museum’s authority to make necessary alterations.

 

 

Retroactive Diplomatic Immunity
Anna Raphael
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When German tennis star Boris Becker attempted to become a diplomat of the Central African Republic in 2018 to avoid bankruptcy proceedings in the United Kingdom, much of the world ridiculed his efforts. But his actions begged a genuine question: Can an individual become a diplomat so that his or her past actions are immunized from prosecution or suit, even after the actions have occurred or court proceedings have been instituted? In the United States, the answer appears to be yes. On at least two occasions, federal courts have allowed such retroactive applications of diplomatic immunity in cases involving allegations ranging from false imprisonment to mistreatment of domestic workers. Presumably under the political question doctrine, these courts reasoned that they must defer to the executive branch on issues of foreign affairs and on State Department certifications of diplomatic immunity, in particular. These courts did not review the factual contexts of the cases, which would have illuminated that the individuals in question were not actually diplomats, would be unlikely to ever act as diplomats, and seemingly had obtained diplomatic status solely for the purpose of evading suit or prosecution.

This Note argues that the purposes of diplomatic immunity, analogies to other forms of immunity like presidential immunity, and the potential for unfettered abuse all cut against the retroactive application of diplomatic immunity. Courts need not dismiss cases as nonjusticiable under the political question doctrine solely because a case involves a question of diplomatic status. Rather, courts should narrowly tailor the judicially developed political question doctrine when legitimate issues as to the factual and legal validity of a defendant’s diplomatic position arise.