Notes

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.

For centuries, the Inuit peoples of the Arctic region have relied on whale hunting for physical sustenance, and the hunt serves as the central ritual of their culture. During the past century, however, commercial overhunting has seriously endangered whale populations, and environmentalists have taken up their cause, pushing for a moratorium on whale hunting. While the Inuits are sometimes granted a narrow exception to the regulations, their hunting rights are constantly under attack by those who fear that any hunting at all will drive the whales into extinction. In this Note, Rupa Gupta argues that the conflict between the rights of whales and of the Inuit is a false one and is based on Eurocentric notions of individual rights. She demonstrates how both the whales and the Inuit culture are endangered by commercial whaling and presents Inuit notions of social and environmental interdependence as an alternative interpretive framework to that of individual rights. Finally, she suggests that Inuits and other indigenous peoples be included in the international institutions and scientific communities that control the dialogue on environmental management.

In this Note, Iris Bennett analyzes the “aggravated felony” provision of the Imimigration and Nationality Act, which requires the deportation of noncitizens convicted of a number of crimes under federal or state law. Bennett discusses the implications of the provision in light of the Constitution’s Naturalization Clause, which requires a “uniform Rule.” She argues that the aggravated felony provision, as amended in 1996 by the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act, results in nonuniform immigration consequences for state criminal convictions because of varying state standards and definitions. After surveying courts’ treatment of the constitutional provisions for uniformity in immigration, taxation, and bankruptcy law, Bennett demonstrates that the jurisprudence of the uniformity requirement in immigration law is in need of further elaboration. She argues that the Naturalization Clause requires that the operation of immigration law not vary based on differences in state law and proposes a doctrinal model of constitutional uniformity for courts confronting this issue.

In this Note, Christopher Abramson argues that Congress should create a statutory property right for musicians whose work is sampled or reused by other recording artists. Abramson examines the technological changes and business arrangements within the recording industry that necessitate this protection. He discusses the inadequacy of existing remedies such as contract and copyright law. Abramson also shows how the existing collective bargaining agreement between the American Federation of Musicians and the record companies fails to address adequately the problems associated with digital sampling. He concludes by calling for the enactment of legislation requiring record companies to compensate musicians whose work is appropriated by sampling.

All fifty states have enacted sex offender registration acts (SORAs). In addition to requiring registration with the state, these laws usually provide for the notification of an individual’s status as a sex offender-along with the dissemination of personal information-to law enforcement officials and members of the community. In this Note, Jane Small argues for enhanced due process protections for offenders when they are required to register. Since SORAs are not aimed at punishment but rather community protection, they are civil, not criminal, statutes and the due process standard for civil proceedings, as announced in Mathews v. Eldridge, ought to be applied. That standard requires a court to weigh the risk of depriving an individual of a protected interest against the governmental interest embodied in a particular procedure. Small surveys SORAs’ problems, including the inappropriately generalized categorization of sex offenders and the danger notification poses to individual offenders, and outlines recent cases applying the Mathews standard to assess the constitutionality of SORAs. She then evaluates available procedural protections and current notification mechanisms for their compliance with the requirements of Mathews. She concludes that an individualized, fact-specific assessment must be made in every case and that the proceedings must be narrowly geared to the legitimate aim of SORAs-community protection-in order not to infringe on the individual’s interests any more than is necessary to achieve that aim.

This Note addresses Proposition 227, California’s recently enacted voter initiative banning bilingual education in public schools. Nirej Sekhon argues that the proposition functions rhetorically as a racially inflected exhortation to nonwhite peoples in the United States. The proposition equates American identity with white identity by claiming English as the birthright privilege of white Americans. As such, the proposition is continuous with the history of language and education politics in the United States. The author concludes by sketching the broad challenge that his analysis poses to current legal mechanisms.

In this Note, Derek Ludwin applies principles of equity to the jurisprudence of nationalization law. In a recent case, Miller v. Albright, the Supreme Court failed to provide a remedy for the victim of an unconstitutional naturalization statute that favors foreign-born illegitimate children of citizen mothers over those born to citizen fathers. Ludwin highlights the Court’s unnecessary impotence due to its strict adherence to the plenary power doctrine and unquestioning deference to Congress. He traces the history of the application of the plenary power doctrine in naturalization law, noting that the Court has never overturned a naturalization statute on equal protection grounds. Ludwin finds, however, that Miller, in which a majority of the justices deemed a naturalization statute to be unconstitutional, marks an important jurisprudential shift toward applying the plenary power doctrine in conjunction with other interests, such as equal protection. Ludwin further argues that the Miller Court’s unwillingness to address the tension between plenary power and equal protection has left the lower courts without guidance in this area and that without an effective remedy-the power to grant citizenship directly-the Court’s finding of unconstitutionality is too weak to afford any real protection. The answer, he states, lies in principles of modem equity. Ludwin concludes that direct conferral of citizenship is in accordance with the Court’s generous post-Brown exercise of equity power in equal protection cases.