The main ambition of "Constitutional Constraints" is to open up the subject of constitutional constraints on government officials, including Presidents and Supreme Court Justices, as a topic for discussion within the field of Constitutional Theory. The subject has so far received little comprehensive discussion in the law reviews, in part because of a division between scholarly approaches that treat constitutional law as a system of norms and political scientific theories that portray judges and other officials as constrained maximizers of personal goals or preferences. This Article attempts to incorporate the central insights of both approaches and to identify the important, frequently unappreciated ways in which they frequently reinforce on another.

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Invoking memories and imagery from the Holocaust and other German atrocities during World War II, many contemporary commentators and politicians believe that the international community has an affirmative obligation to deter and incapacitate perpetrators of humanitarian atrocities. Today, the received wisdom is that a legalistic approach, which combines humanitarian interventions with international criminal prosecutions targeting perpetrators, will help realize the post-World War II vision of making atrocities a crime of the past. This Article argues, in contrast, that humanitarian interventions are often likely to create unintended, and sometimes perverse, incentives among both the victims and perpetrators of atrocities. The problem is that when the international community intervenes in the civil wars or insurrections where most humanitarian atrocities take place, its decision is partially endogenous or interdependent with that of the combatants; humanitarian interventions both influence and are influenced by the decisions of the victims and perpetrators of atrocities. Herein lies the paradox: because humanitarian interventions tend to increase the chance that rebel or victim group leaders are going to achieve their preferred political objectives, such leaders might have an incentive to engage in the kinds of provocative actions that make atrocities against their followers more likely in the first place. More specifically, the prospect of humanitarian intervention often increases the level of uncertainty about the distribution of costs and resolve between the combatants. In turn, such uncertainty amplifies the possibility of divergent expectations between the dominant and rebel group regarding the outcome of a civil war. At bottom, the prospect of humanitarian intervention might sometimes increase the risks of genocidal violence. This Article turns to insights from the domestic framework of torts and criminal law to elaborate upon the theoretical framework that motivates this perverse dynamic, provides some contemporary illustrations from civil wars in Africa and the Balkans, and recommends improvements to the current regime to mitigate some of its unintended effects. This Article concludes that the optimal regime of humanitarian intervention would incorporate comparative fault principles that take into account the failure of victim (or rebel) leaders to take adequate precautions against the risks of humanitarian atrocities.

There has been very little discussion about the intersection of victims’ rights and the juvenile justice system. Statutes that allow victims to attend juvenile hearings and present oral and written impact statements have shifted the juvenile court’s priorities and altered the way judges think about young offenders. While judges were once primarily concerned with the best interests of the delinquent child, victims’ rights legislation now requires juvenile courts to balance the rehabilitative needs of the child with other competing interests such as accountability to the victim and restoration of communities impacted by crime.

In this article, Professor Henning contends that victim impact statements move the juvenile court too far away from its original mission and ignore the child’s often diminished culpability in delinquent behavior. She also argues that victim impact statements delivered in the highly charged environment of the courtroom are unlikely to achieve the satisfaction and catharsis victims seek after crime. Professor Henning proposes that victim impact statements be excluded from the juvenile disposition hearing and incorporated into the child’s long-term treatment plan.

Courts, John Marshall famously declared, must “say what the law is.” Increasingly, it seems, they are also called upon to say what the news is. When subjects of unwanted publicity sue for invasion of privacy or other torts, journalists commonly defend on the ground that the challenged disclosures were privileged as newsworthy. Traditionally, courts minimized constitutional concerns by deferring heavily to journalists’ own sense of what qualified as news; that a story made the newspapers or the evening news was itself nearly conclusive evidence that the topic was of legitimate public interest and therefore beyond the control of tort law. Recently, however, courts have grown decidedly less tolerant. Driven by mounting anxiety over the loss of personal privacy generally and by declining respect for the press specifically, courts are increasingly willing to impose their own judgments about the proper boundaries of news coverage. Ironically, an emerging tool used by courts to police news outlets is journalists’ own codes of professional ethics. By measuring editorial decisions against gauzy internal ethics standards, courts give the appearance of deference to the profession while, in fact, aggressively scrutinizing editorial judgments.

This Article demonstrates the growing threat to press freedom posed by these emerging trends. Part I places the conflict in historical context, showing how evolving legal understandings of privacy and press freedom set the two on course for a modern collision over “newsworthiness,” which was resolved initially by deferring to journalists’ editorial judgment. Part II explains how recent developments – including growing resort to journalists’ codes of professional ethics – have undermined judicial deference to journalism in defining the news. Part III examines the implications of the nascent resurgence of tort regulation of journalism, and Part IV concludes by suggesting ways in which courts and journalists individually might end this narrowing of news.

The recent mortgage crisis has brought national media attention to the problem of predatory lending. Predatory lenders target vulnerable communities who have been precluded from conventional financial markets, and minority communities are disproportionately affected. This Note examines predatory lending in the Hispanic population to illustrate why California’s anti-predatory lending law is not effective. Many of the predatory lending trends found in the Hispanic population are mirrored in literature on predatory lending in other vulnerable communities, providing a model for legislative reform. Drawing on the contextual understanding of predatory lending as it occurs in the Hispanic community, this Note recommends specific legislative reforms to California’s anti-predatory lending law.