Notes

LoCal, a local electric utility company, plans to expand its service into the newly developed outskirts of Anytown. To effectuate this plan, it must build new electric transmission and distribution lines through several existing neighborhoods. Despite vigorous opposition from homeowners groups, the public utility commission approves the placement and construction of the new power lines. Within a few months, LoCal acquires the necessary property through eminent domain, and condemnation proceedings begin.

An appreciation of the importance of diverse viewpoints and of the commingling of those viewpoints in a democratic society animates the protection of public speech achieved by the public forum doctrine. This Note proposes that cable access advocates should ground a similar claim to access under the public forum doctrine as it has been interpreted in state courts. Cable television, and soon the new technologies of communication labeled the “information superhighway,” will far outstrip the shopping mall in altering the terms and domain of public discourse. The arguments that commended extension of the public forum doctrine to the mall thus resonate even louder in the context of those communications media.

In analyzing the Reno Rule, this Note goes beyond the policy-focused debate to examine the limits on the Department’s authority. It argues that, although the Reno Rule is justifiable from a policy standpoint, it is invalid as currently promulgated because it exceeds the Department’s delegated authority.

This Note examines the Manocherian court’s use of heightened scrutiny and argues that application of heightened scrutiny, though perhaps justified in Nollan and Dolan, should not be applied to general regulatory takings claims. The purpose of this Note is to use Manocherian as an example in arguing that the use of heightened scrutiny under the Takings Clause should be limited to those situations where the Supreme Court has already applied it—land-use exaction settings—and that it should not be extended to general regulatory takings claims.

This Note will demonstrate that Title VII’s antiretaliation provision must be interpreted broadly to achieve Title VII’s basic purpose—the elimination of employment discrimination. Part I discusses the rationale supporting those decisions that have argued for a narrow interpretation. Part II argues for a broad interpretation of the provision by responding to the arguments discussed in Part I and offering a normative argument that reflects the general purpose of Title VII and section 704(a)’s role in Title VII’s framework. Part III concludes with an argument for expanding retaliatory protection to include not only postemployment retaliation that is employment-related, but also postemployment retaliation that is personal in nature.

This Note argues that standards for seizures and consent searches that do not capture the different level of cognitive and emotional development of minors as compared to adults fail to adequately protect juveniles’ Fourth Amendment rights. The Note proposes a new framework for assessing the legality of consent searches and seizures of juveniles on the street. The framework builds on, first, Supreme Court cases in other areas of the law that recognize minors as “different” and, second, scholarship on juveniles’ cognitive, emotional, and social development.

What is it about the death penalty that causes so many Americans to express support, despite the contradictions underlying this support? And since utilitarian and moral arguments have proven to be ineffective, how can those who oppose capital punishment most effectively fight against it?

This Note addresses these questions by analyzing narratives about the death penalty, focusing on films that are based on true-life stories. Since these true-life narratives recount actual occurrences, they provide examples of how reality is shaped into narratives. Narrative is one of the primary ways in which people make sense of the world, and as Robert Cover notes, “[n]o set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning.” As such, these popular culture narratives help illuminate the role that the death penalty plays in America. In addition, they offer insights into how death penalty opponents can use narrative to erode capital punishment’s high but unstable support. Analyzing how a particular narrative tells the story of an actual defendant may therefore provide insight for those who tell real-life stories to juries, to commutation boards, and to the media.

This Note has argued that a proper understanding of the market-correcting nature of nonprofit activity is necessary to the enforcement of the antitrust laws. As long as the competition-enhancing virtues of nonprofit activity are recognized, the flexible rule of reason can be used to implement the objectives of the Sherman Act by insuring the proper functioning of our markets. However, an antitrust jurisprudence that is blind to the imperfect nature of the markets in which nonprofit organizations operate and chooses instead to rely on an unyielding faith that “all elements of a bargain . . . are favorably affected by the free opportunity to select among alternative offers” can only reinforce market failures and thus frustrate the various policy objectives of the Sherman Act.

The federal exclusionary rule excludes evidence obtained in violation of a person’s Fourth Amendment rights from a criminal prosecution against that person. Many states also have state law-based versions of the rule, barring evidence obtained in violation of their constitution’s search and seizure counterparts to the Fourth Amendment. In a scenario where a student brings a gun to school and it is discovered in an unfounded, random search, the exclusionary rule precludes the gun’s use in a juvenile prosecution against the student. This Note addresses the question of whether the gun should also be suppressed in a resulting school suspension or expulsion proceeding against that same student. It considers not when a student’s constitutional right against search and seizure is violated, but rather what the remedy is for an acknowledged violation. Specifically, it argues that New York courts should apply the state constitution-based exclusionary rule to school disciplinary proceedings and suggests that other states should do the same with their own exclusionary rules.

Ever since Congress passed the Sentencing Reform Act of 1984 (Act), judges have used their powers to correct the perceived unjust effects of the Federal Sentencing Guidelines (Guidelines). One device wielded by the bench is the departure. Written into the Guidelines themselves, the departure gives district court judges discretion to increase or decrease a prescribed sentence for factors enumerated in the Guidelines as well as for factors that, in the view of the sentencing judge, were not fully considered by the authors of the Guidelines. The Supreme Court, in its recent decision in Koon v. United States, affirmed the enduring role departures play in sentencing jurisprudence. Increasing scholarly and judicial attention has focused on departures based on the effects on third parties such as family members. In contrast, judges and scholars have paid less attention to departures based on the effects on third parties such as employees.

Against this background, this Note will explore two questions. The first is whether the third party effects doctrine extends out of the home and into the workplace. The second question this Note addresses involves an unresolved issue in departure jurisprudence identified in Koon. Assuming departures are permissible, when are they justified? At present, no explicit framework exists to help courts to resolve this dilemma.