Notes

Part I of this Note details the historical moment in which the Law School emerged, sketching both the political and social structure of colonial Connecticut and the multifaceted crisis facing that state’s leaders in the late eighteenth and early nineteenth centuries. Part II describes the response of Litchfield’s elite to this unfolding crisis, focusing in detail on the innovative institutions they founded and nurtured during this period, including the Law School and the Litchfield Female Academy. Part III then attempts to place the Law School in historical and cultural context, providing, sequentially, an exploration of the social vision propounded in its classroom, a brief examination of the school’s legacy, and an overview of other contemporaneous developments in American legal education. In comparing Litchfield with these other early endeavors, Part III also offers some observations on the reasons for Judge Reeve’s relative success.

Part I of this Note explores the problem of judicial vacancies. By demonstrating the extent to which such vacancies are effecting the federal judiciary, Part I seeks to show why judicial intervention is warranted. This Part also discusses the remedies that would be available to a federal court should an action be brought. In Part II, this Note analyzes possible theories under which a claim may be brought. It first looks at the history and meaning of the Advice and Consent Clause of the Constitution, arguing that the Senate’s failure to fulfill its advice and consent role is a violation of the doctrine of separation of powers. Part II then explores the possibility that the Senate’s confirmation role should be judicially enforced under a theory of legislative due process. Finally, Part II shows that Senate inaction may rise to the level of a de facto repeal of legislation establishing the size of the federal court system, thus violating the constitutional requirements of bicameralism and presentment. Part III discusses several procedural obstacles that such an action would face, and suggests the theory of “underenforcement” as an alternative should a judicial remedy not be feasible. More specifically, Part Ill argues that the standing requirement, the Speech or Debate Clause of the Constitution, and the political question doctrine should not preclude judicial action in this situation.

While RTFs are widespread and radically restructure common law property rights, RTF proponents have glossed over any potential issues of unfairness and have suggested changes in order to strengthen perceived weaknesses in protection afforded by the laws. Commentators have paid little attention to the effects RTFs have had on conflicts between landowners in traditionally agrarian communities. In an attempt to begin the type of critical examination demanded by RTFs, this Note discusses RTFs as they currently exist and offers empirical and theoretical critiques of their structure. Part I summarizes the doctrinal and regulatory framework in which RTFs emerged, including the current condition of farms in the United States. Part II describes the current RTFs and discusses some of the explanations offered to justify RTFs. Part III offers a critique of RTFs from several perspectives, integrates this critique with the conflicts between urban and rural land use, and suggests changes to RTFs in an attempt to tailor the statutes more closely to the perceived problems of urban encroachment.

This Note will critique the Chromalloy analysis, identify the key issues raised by the decision, and suggest the proper interpretation of the New York Convention as a major multilateral legal instrument. Part I discusses the New York Convention, as well as relevant portions of the FAA and state law regarding enforcement of foreign judgments. Part II presents the facts and reasoning employed by the district court in Chromalloy, and offers a critical analysis of the case, particularly regarding the problems posed by the court’s reliance on Article VII of the New York Convention as the basis of its decision. Part III examines the relationship between the respective rules for the recognition of arbitral awards and foreign judgments. This Note then proposes guidelines for handling such conflicts in the future and argues that Article V is the more appropriate mechanism to consider all of the relevant interests.

Consider the following scenario: Companies X, Y, and Z all manufacture and distribute the same defective product. The product causes injuries; a mass tort litigation ensues. Company X files a petition for relief under chapter 11 of the United States Bankruptcy Code, which freezes all suits against it. Suits against Companies Y and Z are not stayed, and these companies are eager to find a way to delay suits against them, even if they cannot halt them altogether. If Companies Y and Z can argue successfully that the suits against them are “related to” the debtor’s bankruptcy, they may be able to transfer these suits to the district court where the bankruptcy case of debtor Company X is pending, unless that court abstains from hearing the case. This Note argues that the district court hearing the Company X bankruptcy petition should not assert “related to” jurisdiction over proceedings by tort plaintiffs against Companies Y and Z, the nondebtor codefendants. Exploring this jurisdictional question is not simply an intellectual exercise. Such issues have figured prominently in at least two mass tort litigations, the A. H. Robins “Dalkon Shield” bankruptcy and, more recently, the Dow Corning breast implant litigation. Both the Fourth Circuit in the Robins bankruptcy and the Sixth Circuit in the Dow Corning bankruptcy found that tort claims against nondebtor codefendants were “related to” the bankruptcy case of the debtor corporation. Part I of this Note will examine the history and present statutory bases of bankruptcy court jurisdiction, including “related to” jurisdiction. Part II will discuss the ambiguities of the various judicial standards for “related to” jurisdiction, including the Sixth Circuit’s assertion of “related to” jurisdiction in the Dow Corning mass tort litigation. Part III will illustrate why an expansive reading of “related to” as applied to nondebtor codefendants creates problems for mass tort plaintiffs and for our state and federal judiciaries. Such a reading of the relevant statutory language allows nondebtor codefendants to delay the trial of mass tort cases, making it harder for plaintiffs to continue litigating. Expanded “related to” jurisdiction also infringes on states’ rights and exemplifies why bankruptcy jurisdiction should be interpreted narrowly out of respect for Article II of the Constitution.

This Note examines government operated TDR banks and their capacity to overcome obstacles hindering otherwise successful TDR programs. Many commentators have addressed TDR banks in the context of TDR programs in general; this Note provides the first comprehensive analysis of TDR banks, examining the legitimacy of the banks themselves and, ultimately, their role in successful TDR programs. As the number of localities turning to TDR programs and banks increases, it is likely that challenges to their use will also increase. It is hoped that this Note will prove useful to localities as they establish their own TDR banks, and that the analysis contained in Part III will help them avoid legal and financial difficulties that may interfere with the effective preservation of valuable public goods.

The sudden influx of charter school legislation in the public school landscape and limited state oversight of charter school administration foreshadow further legal challenges. This Note will examine potential federal and state equal protection challenges to charter schools. The Note then suggests both legislative safeguards and individual school designs that may insulate charter schools from such legal challenges while helping to ensure that these schools serve as part of a fair and effective school reform movement.

This Note examines the nature of the doctrinal compromise that the misappropriation theory represents. It focuses on the uneasy relationship among the three doctrinal models and argues that, in fact, the misappropriation theory marks a fundamental departure from the Supreme Court’s more sensible fiduciary duty analysis, and differs in no meaningful way from an equal access regime of insider trading liability. Since the wrongful activity to which the misappropriation theory attaches liability is so distantly related to the securities trading at issue, any claim that it retains the fiduciary duty framework is simply implausible. Like the equal access model, the theory stretches applicable statutory provisions beyond recognition and cannot be reconciled with the Supreme Court’s past interpretation of these provisions.

Part I of this Note will look at the “crime of violence” definition used in various federal sentence enhancement statutes and at the two approaches the federal courts have taken to deciding whether statutory rape convictions constitute “crimes of violence.” Part II will deconstruct the term “crime of violence” in this context by examining how law and society have come to understand the “violence” of sexual assault and how conceptions of adolescents’ ability to consent to a variety of social interactions have changed. Part III will develop a model for courts to use in identifying adolescent “consent” and apply this model to the facts of some of the cases treating this issue. This Note will argue that statutory rape should not be considered a per se “crime of violence.” Rather, in fairness to defendants facing enhanced sentences, and in recognition of the sexual autonomy of adolescents, courts should evaluate the presence or absence of meaningful consent when making many “crime of violence” determinations in statutory rape cases.

Ever since Ben Franklin started a mutual insurance company, policyholders generally have enjoyed a basic level of ownership rights. Within the past few years, however, and with little debate, many states have passed mutual holding company laws. The new laws make it easier for mutuals to convert to stock companies and sell stock to the public, but in the process they radically alter policyholders’ rights. Industry proponents praise the new laws as tickets to financial strength. Critics demonize the laws as a corporate shell game that will strip policyholders of long-standing protections and work a wealth transfer from policyholders to managers. Some opponents of the new laws even argue that the laws may be unconstitutional. Despite these concerns, more and more states are bowing to industry lobbying and are considering passing such laws.