Notes

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.

In the early years following its adoption in 1966, courts and commentators generally regarded amended Rule 23 of the Federal Rules of Civil Procedure as an inappropriate device for mass tort litigation. This resistance stemmed from the conviction that plaintiffs seeking redress for serious personal injuries should maintain direct control over their claims and the perception that individualized issues of causation, liability, and choice of law rendered such suits too complex for unitary adjudication. With the onslaught of individual Agent Orange, asbestos, DES, and Bendectin cases in the 1980s, however, the “overwhelming need to create an orderly, efficient means for adjudicating hundreds or thousands of related claims” forced the courts to reconsider the feasibility of the mass exposure tort class action. The first successful certification of a mass exposure tort class action in 1984 ushered in a new era of class action litigation.

Recently, financial papers have been inundated with accounts of the heady risks and dizzying consequences of derivatives gambling gone bad. Losing bets have caused the demise of a centuries-old bank. Elsewhere, corporations worldwide have been dealt severe losses, and governments have gone bust. Yet conceptually, derivatives are hardly new.

In 1923, Justice McReynolds, writing for the Supreme Court in Meyer v. Nebraska, noted that the state’s involvement in the development and upbringing of minors extended deep into the history of Western civilization: “In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians.” Employing this example of ancient history primarily as an heuristic device, Justice McReynolds declared that the society and government of Sparta were “wholly different from those upon which our institutions rest”–the critical difference being the two societies’ divergent conceptions of the relation between the individual and the state. The United States Constitution, he concluded, barred restrictions as severe as those used in Sparta.

The First Amendment of the United States Constitution provides in pertinent part that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Where laws have prohibited the free exercise of religion, whether by direct regulation of religious conduct or as an unintended consequence, religious adherents burdened by those laws have sought exemptions, arguing that such exemptions are constitutionally compelled.