Electoral Lies and the Broader Problems of Strict Scrutiny
States often attempt to regulate political speech in the form of deliberate lies related to ballot initiatives, referenda, candidates, or their political positions. Some courts focus on the various harms of electoral lies, while others focus more on the risks of bias and partisan abuse involved in such speech regulations, and the cases are in disarray. This article argues, however, that the most important problem underlying this case confusion is inherent in the widely utilized constitutional standard of strict scrutiny. Strict scrutiny typically requires a compelling governmental interest, “narrow tailoring,” and some causal relation between the regulation and the compelling interest. The crucial point, though, is that, as this article documents, each of these elements lends itself to a surprising degree of arbitrariness, judicial subjectivity, uncontrollable complexity, and sheer impracticality. The article works through these multiple problems, in the context of electoral lies and much more broadly, and considers two significant possible reforms of standard versions of the judicial strict scrutiny test.
Wiping Away the Tiers of Judicial Scrutiny
Throughout much of constitutional law and beyond, courts often decide cases by applying some form of tiered or multi-level judicial scrutiny. The prominence of tiered scrutiny conceals, however, a number of important problems. The undue complications, manipulability, commonly mistaken emphases, and other costs of tiered scrutiny are by now conspicuous and remarkable. Tiered scrutiny review has by now decayed to the point at which its use is no longer justifiable. Among other basic problems, tiered scrutiny now offers only the appearance, but not the reality, of reasonable efficiency and of appropriate constraint on judicial subjectivity and discretion. The practice of tiered scrutiny today clearly undermines several basic rule of law principles. This Article suggests that a simpler, more rule of law-friendly substitute for tiered scrutiny is realistically available, and that such a substitute can also encourage more pragmatically effective law-making.
Protection of the Marine Environment: The International and National Regulation of Deep Seabed Mining Activities
This chapter provides an overview of the international and national regulatory framework pertaining to deep seabed mining activities. It begins by discussing the UN Convention on the Law of the Sea, the backdrop for all marine activities – be they national or international – and examines the obligations of states to protect the marine environment from the harmful effects arising from deep seabed mining. Next, the chapter examines the international regime for deep seabed mining (i.e. “activities in the Area”), explaining the “common heritage of mankind” status of the Area (i.e. the international seabed); the functions of the International Seabed Authority (ISA), the international organization established to govern deep seabed mining in the Area; and the concept of state sponsorship of non-state entities (i.e. private actors) for deep seabed mining in the Area. The chapter follows with a discussion of the development of national legislation to regulate deep seabed mining, examining efforts in the Pacific region where many prospective deep-sea mining sites are located. This includes a look at the legislative regimes of several Pacific Island nations, namely, Papua New Guinea, Tonga and the Cook Islands, for whom deep seabed mining may soon become a reality – as well as New Zealand and Japan, countries with comparatively developed rule of law and legislative regimes that have undertaken or considered deep seabed mining in their national waters. Overall, the chapter critically describes and evaluates the current regulatory status in the international and national seabed areas and highlights some salient gaps that require urgent attention in order to ensure marine environmental protection and mitigate impacts on humans.