Notes

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.

By failing to prescribe its temporal reach, section 440(d) of the Anti-Terrorism Effective Death Penalty Act (AEDPA) has created confusion for the courts. Does the provision apply to individuals who committed a crime, making them subject to deportation before AEDPA was passed? To individuals who were convicted prior to AEDPA? To those in deportation proceedings when AEDPA was passed? To those who had already applied for section 212(c) waivers when AEDPA was passed?

Using section 440(d) as a case study to analyze these retroactivity issues, this Note opposes the Attorney General’s interpretation and instead proposes an antiretroactivity presumption applicable not only to the present confusion, but also to ambiguities in future deportation-relief restrictions, such as the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), passed by Congress on September 30, 1996, which further alters relief to permanent residents and raises its own retroactivity issues. This antiretroactivity presumption springs from, among other sources, the reliance interests of immigrants–these interests arise out of the legal duty imposed on courts and defense counsel to advise noncitizens about the immigration consequences of being convicted of a crime. In addition to these reliance interests, due process considerations also weigh in favor of applying an antiretroactivity principle to deportation-relief restrictions.

This Note seeks to clarify the privacy protecting role of copyright that largely has been ignored in judicial decisions, if not in judicial decisionmaking, since the last revision of the federal copyright scheme. Thus, the Note reexamines recent jurisprudential analysis of fair use with regard to the use of unpublished materials, focusing in particular on those materials never intended for publication. It then proposes a modest but useful reform: judicial recognition of an explicit, privacy-based exception to the fair use doctrine.

Others have suggested greater recognition of privacy interests, but this Note’s proposal differs in several important respects. First, this Note explicitly distinguishes between unpublished materials intended for publication and unpublished materials not intended for public dissemination, because privacy interests are implicated only by the latter category. Accordingly, this Note argues first that the extra protection of an exception to the fair use doctrine should only extend to an author who has acted in accordance with the privacy interests she asserts with respect to the materials allegedly infringed. Second, this Note contends that only the author of unpublished materials, not copyright owners other than the author, should be able to object to the use of the unpublished materials on privacy grounds. Third, this Note suggests that the author should only be able to object during her lifetime, because her privacy interests diminish after death. These limiting principles help ensure a proper balance, on a broad scale, between protecting the interests of authors in the fruits of their intellectual labor and the interest of the public in ultimately claiming free access to materials essential to the development of society; and, on a narrow scale, between academic freedom and respect for personal privacy.

This Note proposes that a claim that freedom of speech or expressive association is infringed by operation of a public accommodations law should be subjected to the tests developed by the Supreme Court for the analysis of content-neutral restrictions on those rights. A public accommodations statute is a content-neutral regulation: the government’s purpose in enacting and enforcing the statute is not related to the suppression of free expression. Because the Court has decided that content-neutral regulations present less of a threat to the values underlying the First Amendment than do content-based restrictions, a content-neutral regulation is not presumptively invalid. Such a regulation is constitutional if justified on the basis of a sufficiently strong governmental interest which is not related to its effect on individual freedoms.

By eliminating the useful life requirement for depreciability, Simon and Liddle opened the door to allowing depreciation of assets previously considered nondepreciable. Although the amounts at issue in the two cases were not significant, applying their holding to other assets could significantly reduce the tax revenues collected by the government. This Note analyzes the tax court’s decisions in Simon and Liddle and applies their holding to assets previously considered nondepreciable. This Note concludes that the Simon and Liddle decisions are contrary to the legislative history of ACRS depreciation, but argues that eliminating the useful life requirement for tangible assets is nevertheless fundamentally sound, as it better promotes the basic policies and practical considerations underlying modem tax depreciation.

This Note draws on socio-psychological sources, conversations with experienced mediators, and dispute resolution literature to articulate a measured theory of when, where, and how apologies may play a role in dispute resolution. Avoiding both conclusory idealization and complete dismissal of apology, this Note argues that, in some disputes, apology is a powerful means of moving parties closer to settlement. Though apology is probably not the direct substitute for monetary compensation depicted by the casebook employment scenario, it may facilitate agreements on compensation by alleviating the psychic injury that makes parties unable to settle. Because apology may improve the dispute resolution experience for both parties, lawyers concerned about client satisfaction should consider attending more carefully to demands for apology. Indeed, lawyers skilled in crafting language may aid parties to exchange sincere regrets without making specific admissions of liability and thus pave the way for more fruitful dialogue.

The Supreme Court, in Bailey v. United States, ruled unanimously that in order to convict a defendant of “use” of a firearm during the commission of a drug trafficking offense pursuant to 18 U.S.C. § 924(c)(1), the government must show that the defendant “active[ly] employ[ed]” the firearm, not merely that the firearm was an “inert presence” at the scene of the offense. Several district courts confronted with post-Bailey habeas petitions have provided defendants with Pyrrhic victories: These courts have granted the habeas petition but then deemed this collateral success a material breach of the plea agreement and allowed the government to reindict the defendant on the charges it had dismissed previously.

This Note argues that a successful collateral attack is neither a breach of a defendant’s plea agreement with the government nor an act which requires rescission of the agreement due to impracticability. Rather, the successful collateral attack may have created a situation in which the purpose of the contract has been substantially frustrated for the government. The Note evaluates a government claim premised upon this notion, but concludes that the government is still not entitled to relief.