115 Yale L.J. 996 (2006)

According to conventional law-and-economics theory, private property rights tend to evolve as resource values rise. This optimistic assessment fails to explain the development of open access in many Third World property systems. Indeed, while the evolution of property has been studied extensively, scholars have paid relatively little attention to the evolution of open access itself. This Essay presents a theoretical analysis of open access that focuses on contested institutional interactions between laws, norms, and agreements. It argues that rising resource values are more likely to lead to open access than private property when the institutional environment is characterized by competing legal and norm-based systems. The Essay concludes that to understand property failures in contemporary Third World circumstances, we must move beyond conventional evolutionary analysis to taxonomic formulations based on the nature and interaction of property enforcement arrangements.

115 Yale L.J. 1086 (2006)

This Note argues for judicial recognition of a Fourth Amendment right to privity, conceived broadly as a right to make limited disclosure of one's personal information without surrendering the constitutional privacy interests that attach to it. In particular, this Note challenges the so-called third-party doctrine, which holds that when individuals disclose information to a third party, they retain no constitutional protection against government searches of that information. It argues that a privity right is essential for people to be secure in their "papers," particularly in a world increasingly defined by "informationships," or relationships formed around shared access to and exchange of personal information.

115 Yale L.J. 1157 (2006)

More than a decade after the world did nothing to halt genocide in Rwanda, and in the shadow of ongoing atrocities in Darfur, Sudan, the international community recently made a new commitment to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. The United Nations 2005 World Summit brought together representatives from more than 170 countries, including the United States. While largely reiterating previous international development and security goals, the Summit culminated with an agreement that the international community, acting through the United Nations, bears a responsibility to help protect populations from genocide and other atrocities when their own governments fail to do so. The agreement further announced a willingness to take "collective action" through the Security Council to protect populations if peaceful means prove inadequate.

The motivating force behind the agreement is the United Nations' past inaction in the face of grave atrocities, including genocide. At the conclusion of the World Summit, Secretary General Kofi Annan told the world's leaders: "[Y]ou will be pledged to act if another Rwanda looms." However, by describing the responsibility to protect in terms of U.N. action, the World Summit failed to address a critical issue: What can and should be done by individual states if the United Nations fails to fulfill its pledge? The answer to this question will inform the scope of permissible unilateral action, with implications for future humanitarian interventions and military actions.

This Comment argues that the Summit agreement strengthens the legal justification for limited forms of unilateral and regional action–including military action–if the United Nations fails to act to protect populations from genocide and other atrocities. The Summit agreement strengthens the justification for unilateral action in two main ways. First, the agreement affirms important limits on national sovereignty by recognizing a state's responsibility to protect its own citizens. Second, the agreement sets clear responsibilities for the international community when a country fails to protect its own citizens. In cases of U.N. inaction, would-be unilateral actors can point to an explicit failure to fulfill a duty.

However, the agreement only supports unilateral action in a narrow set of circumstances. First, the agreement is limited to a small set of extreme human rights abuses. Second, the agreement implies a hierarchy of actors and of interventions: Good faith U.N. action is privileged over unilateralism and peaceful action is privileged over violent means. Finally, the agreement limits the scope of intervention to the goal of protection. For these reasons, the U.S. invasion of Iraq could not have been justified using the Summit agreement.

115 Yale L.J. 1177 (2006)

In Kilburn v. Libya, the D.C. Circuit held that a plaintiff may turn to United States courts to seek recovery from a foreign nation for injuries suffered at the hands of a terrorist organization with which the foreign nation was affiliated--if actions taken by that foreign nation were a proximate cause of the plaintiff's injury. Kilburn is part of an emerging pattern. Over the past ten years, Congress and the courts have made it increasingly easy for plaintiffs to secure compensation from foreign nations for injuries arising out of terrorist acts. In particular, courts have liberally interpreted the state sponsor of terrorism amendment to the Foreign Sovereign Immunities Act of 1976 (FSIA), which permits plaintiffs to sue those nations designated as state sponsors of terrorism for damages in U.S. courts.

Yet Kilburn also broke with prior cases. Kilburn involved an unusual set of facts and resolved the questions they presented in atypical fashion. Prior to Kilburn, most cases brought pursuant to the terrorism amendment had involved terrorist acts committed directly by a foreign nation or instigated by a foreign nation and committed by that nation's agent. Kilburn, by contrast, involved damage done by a nonstate actor who received material support and resources from the defendant nation but who was not its agent. Moreover, prior to Kilburn, courts had seldom permitted plaintiffs to seek relief for injuries foreign nations had not specifically intended to cause. Indeed, the United States, appearing as amicus curiae in Kilburn, asserted that it was not clear from existing case law that "the allegation of a foreign state's general support for the terrorist group that carried out the act of terrorism is sufficient to satisfy the statute." The Kilburn court, by contrast, adopted a more relaxed, proximate cause standard for jurisdiction.

This Comment argues that Kilburn is inconsistent with the FSIA scheme. I do not weigh the merits of the Kilburn causation standard on its own terms. Rather, I contend that Kilburn will lead to extensive jurisdictional discovery. Permitting such discovery not only would create a disjunction between foreign sovereign immunity practice on the one hand and domestic sovereign immunity practice and international law on the other, but it also might frustrate Congress's goals in passing the terrorism amendment. I begin by explaining why the adoption of the Kilburn standard makes it more likely that courts will engage in jurisdictional discovery. In Part II, I elucidate the history of the FSIA and use that history to demonstrate why extensive jurisdictional discovery is incompatible with the FSIA. Finally, in Part III, I offer alternatives to the Kilburn standard.