Notes

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.

After providing a brief background on class action litigation in Part I, this Note then examines in Part II the first due process issue: opt out fights when a state court lacks adjudicatory jurisdiction to bind the class. This Note argues that the due process requirement of minimum contacts should apply to absent class members in all mandatory class actions. For nonresident class members lacking minimum contacts with the forum, the right to opt out should be required to establish the state court’s jurisdiction to render a binding in personam judgment. The Supreme Court in Shutts so held in a state court class action seeking monetary relief, and this Note argues that the holding in Shutts should extend to all state court class actions, including those seeking nonmonetary relief. In those cases where a single adjudication of a controversy is desirable and no state has adjudicatory jurisdiction to bind the entire class in a mandatory action, the controversy will have to be resolved in multiple actions unless a federal solution exists.

This Note argues that in most respects, Rape Shield Laws should be applied to male same-sex rape cases in the same way that they are applied to female opposite-sex rape cases. Cases of male same-sex rape, however, implicate homophobia rather than sexism. As a result, Rape Shield Laws must be interpreted to provide a “shield” in male same-sex rape cases not only for sexual history evidence, but also for sexual orientation evidence. Courts should be aware of both the direct and indirect forms that sexual orientation evidence can take and protect victims and defendants from the admission of evidence in either form.

This Note argues that state courts should adopt the Reform Act’s most adequate plaintiff requirement for both securities fraud class actions and derivative suits. Part I reviews the agency costs of strike suits generally with the aid of a paradigmatic case. Part II examines in detail how the Reform Act attempted to reduce these agency costs through various procedural requirements and, in particular, through the most adequate plaintiff requirement. Although the most adequate plaintiff requirement facilitates institutional investor involvement as lead plaintiffs, and such involvement will likely minimize the agency costs associated with bringing a shareholder class action, the fact that this requirement is limited to federal courts has created a new problem, namely, forum shopping. The plaintiffs’ bar may circumvent the Act simply by opting to bring more strike suits in state rather than federal courts. Part III therefore argues that individual states should incorporate similar changes into their procedural laws both to close this loophole and to reduce agency costs.

This Note will demonstrate that, as understood by most courts and legislatures, the clergy-penitent privilege does not conform completely to the requirements of the First Amendment. As a result, the privilege at times violates the Amendment’s Establishment Clause by unduly preferencing religion. Additionally, at other times the privilege’s protections are insufficient, offending the notions of religious liberty and tolerance upon which both the First Amendment’s Establishment Clause and Free Exercise Clause were built.

Each year on a Friday in late March or early April—two days before Easter—Christians commemorate the crucifixion of their savior Jesus Christ. They call that day Good Friday. Many states have given Good Friday the status of a legal holiday, closing government offices and schools, while countless localities observe the date in any number of ways, such as by shutting down various government services. Recently, many of these provisions have been attacked as violating the Establishment Clause of the First Amendment: “Congress shall make no law respecting an establishment of religion.” This principle precludes government from favoring or endorsing a particular religious sect or religion in general. Critics argue that by giving legal recognition to a purely sectarian holiday such as Good Friday, the state or locality in effect “establishes” Christianity as the government’s religion.

In two recent Supreme Court cases, Faragher v. City of Boca Raton and Burlington Industries v. Ellerth, the Court clarified the standard by which employers are held liable for sexual harassment committed by their employees. In this Note, Justin Smith analyzes these decisions and concludes that the Court moved the law in the right direction by resolving conflicting and convoluted agency doctrines applied by the lower courts, by imposing strict liability on employers for all sexual harassment by supervisors, and by allowing a contributory negligence defense for employers in some circumstances. However, he argues that the new liability regime, in which liability standards vary depending both upon the type of harassment and upon the relative positions of harasser and victim in the employment hierarchy, is less than ideal Applying an economic understanding of causation, the author finds no sound basis for varying liability standards. Instead, he proposes a uniform regime of strict vicarious liability on employers for all sexual harassment by their employees, coupled with an extension of the contributory negligence defense to all sexual harassment cases.