Notes

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 Thus, the Note reexamines recent jurisprudential analysis of fair use with regard to the use of unpublished materials, focusing in particular on those materials never intended for publication.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 First, this Note explicitly distinguishes between unpublished materials intended for publication and unpublished materials not intended for public dissemination, because privacy interests are implicated only by the latter category.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.

In Rufo v. Inmates of Suffolk County Jail, the Supreme Court determined that that parties seeking to modify institutional reform consent decrees need demonstrate neither “grievous wrong” nor that the decree’s
purposes have been fully achieved. Instead, the Court held, moving parties are required to show only that a “significant change in circumstances warrants revision of the decree.” Because the consent decree in Rufo specifically involved institutional reform, lower courts are divided over the extent to which Rufo‘s more flexible standard should apply beyond the institutional reform setting. If courts apply Rufo literally, antitrust enforcement agencies, which currently settle more than seventy percent of their cases via consent decree, likely will become reluctant to enter into consent decrees. Further, in light of a recently implemented antitrust enforcement policy that generally limits consent decrees to ten years, and antitrust defendants’ already powerful incentives to settle via consent decree, the flexible Rufo standard is unnecessary and inappropriate in the antitrust context. Finally, several stark differences between institutional reform and antitrust litigation indicate that the rationales underlying Rufo are not applicable in the antitrust context.

The growth of federal regulation has allowed an increasing number of defendants to argue that state law has been preempted by federal law, and the well-pleaded complaint rule has forced many of these defendants to argue their federal defenses in state court. Federal jurisdiction under the Employee Retirement Income Security Act of 1974 (ERISA) can be considered an exception to this basic rule. Defendants in state court who raise a specific ERISA preemption defense are able to remove their cases to federal court. Because a federal court will decide whether federal law preempts state law, the process is known as “preemption removal.” The Supreme Court authorized preemption removal under ERISA in 1987, claiming that it was following congressional intent. There are, however, significant reasons to believe that Congress did not intend to allow such preemption removal when it enacted ERISA in 1974.

This Note argues that although congressional authorization is questionable, preemption removal under ERISA is justified by the particular issues surrounding the regulation of employee benefit plans. In the absence of congressional intent, these policies stand as the sole justification for this striking exception to the well-pleaded complaint rule. Because these policies and issues do not necessarily apply to other areas of federal legislation, this Note argues that when courts are confronted with the question of whether preemption removal should be extended to other federal statutes, they must look for either clear congressional intent or strong policy reasons, such as those implicated by ERISA, to allow such removal.

Art has become a battleground on which American society fights its most intensely political and deeply personal wars. Because art by its very nature stimulates both intellectual and emotional responses, it is uniquely suited to generate powerful, often conflicting reactions in both artist and viewer. Increasingly, our most profound cultural tensions surface when people contest the meaning and value of artistic expression.

Before the first artificial fissioning of a uranium atom, it was apparent to the scientific community that harnessing the atom’s vast reservoir of energy, even for peaceful purposes, was not without its risks. Today, five decades after splitting the atom and just over one decade since the April 1986 Chernobyl accident sent radioactive fallout across Eastern and Western Europe, an increasing number of states have come to recognize the tremendous transboundary risks that are inherent in the development of nuclear power. Accompanying this trend has been the search for appropriate and effective means to improve the safety of nuclear power plants worldwide.