For decades, scholars and judges have assumed that federal habeas corpus review of state court criminal convictions should focus on the individual rights of habeas petitioners and that the federal courts should ask whether a state prisoner is being unlawfully detained because the state violated his individual federal rights. This individualized approach to federal habeas review is expensive, time-consuming, and woefully ineffective in stopping states from violating defendants’ federal rights. Indeed, many states systematically violate criminal defendants’ federal rights with impunity. This Article proposes a new conception of federal habeas review under which the federal courts focus on states, not on individual petitioners. Federal habeas relief should be available when, but only when, a state routinely violates its criminal defendants’ federal rights as part of a systemic practice. Reconfiguring federal habeas corpus review to focus on states and systemic practices would reduce redundancy, increase efficiency, and be more respectful of state institutions while, at the same time, recovering one of the original and now lost purposes of federal habeas corpus review.

Mandates that agencies solve massive problems such as sprawl and climate change roll easily out of the halls of legislatures, but as a practical matter what can any one agency do about them? Serious policy challenges such as these have dimensions far beyond the capacity of any single agency to manage effectively. Rather, as the Supreme Court recently observed in Massachusetts v. Environmental Protection Agency, "agencies, like legislatures, do not generally resolve massive problems in one fell swoop, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best to proceed." Whether sprawl, climate change, or other daunting challenges, agencies are increasingly being told to address massive problems but without obvious tools or strategies to do so.

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Child-centered arguments have played a central role in debates over expanding marriage rights throughout history. Opponents of interracial marriage argued in Loving v. Virginia that “mixed race” children from interracial households were physically and psychologically inferior and suffered from social stigmatization. Over forty years later, child-centered arguments again took center stage in the debate over same-sex marriage. The arguments initially focused on the harms to children raised by same-sex parents—specifically, that such children suffer from stunted development and social alienation. Over the years, these arguments gradually morphed into claims that same-sex marriage harms all children, because the prevalence of same-sex marriage in society and its integration in school curriculum confuses children about gender roles and the “true” meaning of marriage. Tracing the evolution of child-centered arguments from Loving through the recent battle for same-sex marriage in California’s November 2008 election on Proposition 8 offers valuable lessons to same-sex marriage advocates about the propriety and consequences of using child-centered arguments in defining the marriage rights of adults.

The Hague Convention on the Civil Aspects of International Child Abduction seeks to ensure the prompt return of children who have been abducted by parents or other family members across national borders. The abductor, or taking parent, may raise several defenses in response to a petition for the return of a child, including the grave risk of harm to a child upon return to her home country and the contention that the child is well settled in her new environment. Although many consider the Hague Convention a successful example of the power of private international law, the narrow interpretation of the defenses available under the Hague Convention has proved harmful to women and children who flee across borders to escape domestic violence. This harm is exacerbated when U.S. immigration status, or lack there of, comes into play.

This Comment details the interaction of immigration status with two of the Hague Convention’s defenses to the return of a child, the Article 13(b) grave-risk defense and the Article 12 “well-settled” defense. Where appropriate, I assess this relationship through the lens of the parent escaping domestic violence, given the prevalence and severity of the problem. I argue that current U.S. Hague Convention jurisprudence takes immigration status into account when it should not – in the consideration of the “well-settled” defense – and fails to weigh immigration status when it should – when an asylum application is relevant to the assessment of the grave risk defense. In order to comport with the object and purpose of the Hague Convention, which is to “protect children internationally from the harmful effects of their wrongful removal,” and with other international law norms, U.S. courts must weigh the status of asylum applicants in grave risk determinations, while they should not deem immigration status a dispositive factor in the “well-settled” inquiry.

This paper explores a recent wave of pro-polygamy activism, exemplified in the recent Tenth Circuit challenge in Bronson v. Swensen. Though the plaintiffs in this case challenged Utah’s bigamy law partly on religious freedom grounds, they also argued that the law violated their rights to liberty and privacy under the Due Process Clause of the Fourteenth Amendment. In doing so, they relied heavily on the seminal gay rights case Lawrence v. Texas. In addition to invoking Lawrence, there are many other ways in which the Bronson plaintiffs and other polygamy activists make use of tactics and rhetorical strategies borrowed from feminism and LGBT rights activism. This paper posits that feminism and LGBT rights are part of a broader tradition of sex rights that is rooted in such values as gender equality, freedom from abuse or discrimination and bodily and sexual self-determination, and seeks to answer two questions about the relationship between this tradition of sex rights and polygamy activism. First, it inquires whether polygamy activism can be properly understood as part of this framework, given that its commitment to the range of sex rights values may be incomplete or ambivalent. Polygamy activists’ complex relationship with sex rights is not unique in the world of sex rights claimants, and thus considering them in a sex rights framework is both informative and appropriate. Second, the paper asks what particular insights polygamy activism has to add to conversations about sex rights. The tensions in polygamy activism point to questions about how the law should handle situations where a person is asserting freedom of choice in a context where they may be operating under cultural or other constraints, situations this paper describes as dealing with “imperfect autonomy.” This paper finishes by exploring imperfect autonomy through the lens of polygamy activism and other types of sex rights claims, and proposes some ideas for improving the law’s treatment of imperfect autonomy.

As a surge in pirate attacks in the seas around the Horn of Africa threatens to seriously damage international trade, the nations of the world have refused to enforce international law against these criminals. The dozens of nations patrolling the Gulf of Aden have ample legal authority to detain and prosecute pirates. Yet the United States and other navies have, as a matter of policy, been releasing apprehended pirates because of the difficulty of detaining or successfully prosecuting them. These fears are not unwarranted. As this Essay shows, while on the one hand international law requires all nations to fight pirates, a variety of other international legal rules—ranging from the Geneva Conventions to refugee law to the Law of the Sea Treaty—are in tension with this goal. These tensions are daunting enough to keep nations from even trying.

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