Volume 90.5

September

2023

The treaty process specified in Article II of the Constitution has been dying a slow death for decades, replaced by various forms of “executive agreements.” What is only beginning to be appreciated is the extent to which both treaties and executive agreements are increasingly being overshadowed by another form of international cooperation: nonbinding international agreements. Not only have nonbinding agreements become more prevalent, but many of the most consequential (and often controversial) U.S. international agreements in recent years have been concluded in whole or in significant part as nonbinding agreements. Despite their prevalence and importance, nonbinding agreements have not traditionally been subject to any of the domestic statutory or regulatory requirements that apply to binding agreements. As a result, they have not been centrally monitored or collected within the executive branch, and they have not been systematically reported to Congress or disclosed to the public. Recent legislation addresses this transparency gap to a degree, but substantial gaps remain. This Article focuses on the two most significant forms of nonbinding agreements between U.S. government representatives and their foreign counterparts: (1) joint statements and communiques; and (2) formal nonbinding agreements. After describing these categories and the history of nonbinding agreements and their domestic legal basis, the Article presents the first empirical study of U.S. nonbinding agreements, drawing on two new databases that together include more than three thousand of these agreements. Based on this study, and on a comparative assessment of the practices and reform discussions taking place in other countries, the Article considers the case for additional legal reforms.

Scholars have long demonstrated that cities are constrained by states and the federal government in the exercise of their power. While important, the emphasis on these “vertical” constraints on cities does not account for the “horizontal” constraints on city power from private actors. This Article suggests that the emphasis on vertical constraints on city power is due to a misunderstanding of the history of local government law that describes its sole function as the vertical distribution of power between cities and different levels of government. I revise the history of Dillon’s Rule, the doctrinal cornerstone of local government law’s vertical distribution of power, by arguing that local government law also distributes public and private power, between private capital and cities. Correcting the historical misunderstanding helps to show how private power still shackles cities in their efforts to address important challenges.

The test for qualified immunity states that officers are immune from liability in the absence of clearly established law that previously condemned their conduct, but the Supreme Court has not defined exactly what “clearly established law” means. In a set of conflicting cases, the Court has both repudiated the consideration of departmental policies as clearly established law and, subsequently, cited departmental policies as evidence of clearly established law. As a result of this ambiguity, lower courts have been inconsistent—even within circuits—about whether departmental policies count as clearly established law. This Comment addresses this gap in the doctrine by proposing a solution that ameliorates the legal fiction at the heart of the clearly-established-law inquiry. Using Hope v. Pelzer’s obviousness exception to the clearly-established-law requirement, this Comment proposes incorporating departmental policies into the qualified immunity doctrine as an objective measure for determining when an officer’s rights violation was obvious.

This Comment argues that one-time land-use decisions should not be categorically excluded from disparate impact liability under the FHA for three reasons. First, one-time employment decisions may serve as the basis for disparate impact liability under two analogous civil rights statutes—Title VII and the Age Discrimination in Employment Act—indicating that the same is true for one-time land-use decisions under the FHA. Second, the distinction between a policy and a one-time decision is untenable and provides little guidance for courts. Third, seminal appellate court cases which first established disparate impact liability under the FHA involved one-time land-use decisions, indicating that such decisions constitute the heartland of disparate impact theory. The Comment concludes by providing further clarity about which particular one-time land-use decisions should enable litigants to establish successful disparate impact claims.

Using Amarin Pharma, Inc. v. Hikma Pharmaceuticals USA Inc. as a jumping off point, this Comment is the first piece of legal scholarship to examine whether, and under what circumstances, health insurers can induce infringement of a method patent by providing preferential coverage of a skinny label generic when it is distributed for a patented drug indication. An evaluation of this question requires examining the standard of causation in induced infringement cases, a subject that has received startlingly little judicial or scholarly inquiry. This Comment argues that the Delaware district court’s decision in Amarin was based on an improper theory of causation that assumed insurance companies have a duty to prevent infringement. It then establishes that the proper counterfactual baseline for evaluating inducement claims against insurers reveals that insurance companies are rarely the but-for cause of infringement in the skinny label context. Ultimately, the Comment demonstrates that adopting a loss of chance theory of the injury in future cases would force courts to conduct often-ignored causation analysis and ensure that a finding of inducement corresponds with a proportionate damages award.