Notes

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.

This Note criticizes the conclusion reached in Prescription Drugs and argues that the interpretation of section 13c offered by the court misconstrued the statute, inappropriately expanding both the group of purchasers and the products to which the statute should apply. This Note also criticizes previous interpretations of the statute, arguing that courts subtly have changed and updated the statute with each successive reading. Finally, this Note argues that the misinterpretation of section 13c is simply one example of a broader problem—the lack of an interpretative theory to guide the reading of obsolete statutes. In response, this Note proposes a novel theory of interpretation: the changed circumstances theory.

The decision of gay rights litigators to adopt choice-denying constitutional arguments reflects both the exigencies of litigating after Bowers and the broader social acceptance of the belief that gay people do not choose to be gay. However, choice-denying arguments have proven ineffective in the legal realm. In addition, they threaten to undermine the broader gay rights movement by implicitly suggesting that being gay is undesirable, by leading gay rights advocates to make claims that are untenable and short sighted, and by misrepresenting segments of the gay community.

Part I of this Note summarizes the Supreme Court’s decisions in five cases and locates them within the emergence of state constitutional law generally. In Parts II, III, and IV, this Note analyzes the state court opinions that have diverged from these federal cases, and considers them in light of state judges’ other reflections on New Federalism. Specifically, it identifies three common principles that undergird state court rulings in these areas. Part II highlights the courts’ desire to preserve established rules of criminal procedure—ones that were overruled or modified by the U.S. Supreme Court, yet had been applied and relied upon previously within each state. Part III discusses the state courts’ preference for clarity in legal standards, and their concern that untested federal rules might unduly burden the lower state courts’ work. This Note thus rebuts critics’ charges that New Federalism is an inherently “activist” endeavor, since both a desire to preserve established rules and a preference for clarity are principles rooted in “conservative” values of reliance, stability, and effective law enforcement.

This Note addresses that question by examining Congress’s use of narratives in the debates over DOMA. Narratives are stories circulated within communities and institutions that both shape and reveal society’s attitudes toward issues, particularly polemic questions. In enacting DOMA, members of Congress used narratives to respond to what they perceived and portrayed as a menace posed by same-sex marriage. Because stories about gays and lesbians in relationships resembling heterosexual marriage have been gaining widespread attention in recent years, anxieties regarding homosexuality and traditional marriage notions have sharpened in certain segments of society, creating a breach in the prevailing social order. Members of Congress used narratives to mend this breach. In deliberations over DOMA, they related stories about gays and lesbians that countered the increasingly common story of same-sex marriage; by reinforcing apprehensions surrounding gays and lesbians and reasserting the familiar heterosexual version of the marriage narrative, Congress attempted to quell the threat posed by stories of same-sex marriage.

This Note argues that the appearance of postmodern penological trends in the juvenile justice context results in two problems: an attack on the autonomy of the family and a shift to a more sinister view of children. This Note specifically examines parental responsibility laws, measures that hold parents criminally responsible for the acts of their children. These laws show a new readiness to attribute juvenile misconduct to improper parenting and to hold parents strictly liable for their children’s acts, both in furtherance of protecting society from the danger presented by juveniles. In so doing, these laws embody the postmodern trends mentioned above.

With the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Personal Responsibility Act), states have unprecedented discretion in fashioning their social welfare programs. The Personal Responsibility Act eliminated the Aid to Families with Dependent Children (AFDC) program and replaced it with block grants for states to use in designing their own assistance programs. States therefore have a substantial opportunity to impact the lives of America’s poorest families. The Act, however, imposes some restrictions on the states as a condition for receiving the money. Particularly notable is the Act’s prohibition on state provision of benefits to any family that includes an adult who has received assistance for sixty months over her lifetime. The Personal Responsibility Act also contains guidelines that are merely discretionary on the part of the states. This Note discusses two such options, both exceptions to the sixty-month rule. First, the Act allows a state to exempt a family from the sixty-month limitation “by reason of hardship or if the family includes an individual who has been battered or subjected to extreme cruelty.” Second, the Act allows a state to waive time limits where the family includes an individual who has been victimized by or is at risk of domestic violence.

This Note argues that such an extraordinary amount of police, legislative, judicial, scholarly, and community activity around hate crime in such a short period of time—less than two decades—is the result of an emerging social movement against hate crime. If, indeed, “times have changed,” such change is attributable to the rise and societal impact of a social movement dedicated to hate crime victims. This Note further argues that this anti-hate-crime movement has been rapidly assimilated into the institutions of criminal justice, with the result that anti-hate-crime measures now reflect the culture and priorities of those institutions and therefore inadequately alter those institutions’ treatment of hate crime and its victims.

Libel suits can impose huge costs on media defendants. In jury trials, media defendants are apt to lose, even though appellate courts frequently reverse verdicts and awards. The litigation costs to the defendant are high, the discovery process is unusually intrusive, and the threat of astronomical jury awards disrupts the defendant’s normal operations.