Notes

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.

Whether, and to what extent, the Fourth Amendment might limit e-mail monitoring in government workplaces is an open question. Currently there is no caselaw directly on point. This Note argues that the Fourth Amendment should limit the government’s ability to monitor the e-mail of its employees. Part I reviews basic Fourth Amendment principles and then briefly examines alternate sources of privacy protections. That Part will show that these legal remedies are inadequate to protect government employees from intrusive e-mail monitoring in the workplace. Part II of this Note argues that the Fourth Amendment, which has been held to protect individuals from a variety of unreasonable government intrusions, could also apply to searches and seizures of e-mail in general, and workplace e-mail in particular. Part III then proposes an appropriate Fourth Amendment standard for government workplace e-mail monitoring. Beginning with the Supreme Court decision in O’Connor v. Ortega , Part III applies the federal case law involving workplace searches of government employees to the specific context of e-mail monitoring. This Note concludes that workplace e-mail monitoring is unreasonable where there is no special need justifying the types of suspicionless searches monitoring represents. Absent a special need, individualized suspicion should be necessary in order to justify monitoring employees’ e-mail.

This Note will examine what the NLRB and the courts have determined constitutes “discrimination” and the rationales behind their conclusions. It will argue for a narrow view of “discrimination” and, in keeping with the Court’s assertion of employer property rights, advocate that nonemployee union protest activities be viewed differently than nonemployee union organizational activities.

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.