Notes

Tobacco litigation splintered into statewide class actions after the Fifth Circuit decertified a nationwide class of “nicotine-dependent persons” in Castano v. American Tobacco Co. In this Note, Susan Kearns analyzes “son of Castano” class actions as a vehicle for adjudicating individual tobacco claims. Reviewing two recent tobacco class actions, she argues that statewide class actions confront the same obstacles that required decertification of the nationwide Castano class. She contends that litigant autonomy, judicial efficiency, and due process considerations should preclude the certification of a “son of Castano” class action in state or federal court.

In 1996, Congress passed legislation restricting lawyers receiving federal finds through the Legal Services Corporation from undertaking litigation challenging the constitutionality of welfare laws. Two circuits of the court of appeals have since rendered conflicting decisions on the constitutionality of this restriction. In this Note, Megan Lewis argues that this constraint on Legal Services grantees constitutes impermissible viewpoint discrimination under the First Amendment. Lewis’s argument is grounded on the principle that the Constitution limits the government’s power to restrict speech that it subsidizes. She suggests that the public forum doctrine, when analyzed in light of the Supreme Court’s decisions in Rosenberger v. Rector & Visitors of the University of Virginia and Rust v. Sullivan, provides a framework for distinguishing between permissible and impermissible restrictions on Legal Services grantees. Building on the terminology of Professor Robert Post, Lewis asserts that Legal Services lawyers act independently when they serve their clients, rather than as instrumentalities of the state, and hence do not fall within the government’s managerial control. Moreover, the restriction infringes on their clients’ First Amendment right to participate in litigation, itself a protected public forum. Lewis concludes that the restriction impermissibly interferes with protected speech and skews the debate within the public forum created by the subsidy for Legal Services.

Despite recent aggressive efforts to revitalize distressed urban communities, city governments have been unable to find an effective solution for the problem of vacant buildings. Such properties adversely affect the surrounding community, increasing crime and the risk of fire while posing health hazards to nearby residents. Because many owners continue to pay taxes on vacant buildings with the speculative hope of future profit from sale or condemnation, city governments have a particularly difficult time seizing the properties without paying exorbitant amounts of just compensation. In this Note, David Kraut suggests a new way for city governments to eliminate these properties. First, Kraut argues that municipal governments should have the power they currently lack to seize vacant buildings with a substantial number of local housing code violations or that have been vacant for a significant amount of time. Kraut then suggests lowering the amount of just compensation paid for these buildings by discounting the property based on how much it would cost to bring the property up to code standards. He concludes by discussing some of the potential constitutional issues that could be raised by disgruntled property owners.

In this Note, Alex Hortis analyzes the application of the mail fraud statute, as codified at 18 U.S.C. § 1346, to enforce citizens’ intangible right to the “honest services” of public officials. Reviewing the evolution of § 1346, Hortis finds that, although it has been perceived as statutorily vague and intrusive into state and local affairs, § 1346 has not been used in an unnecessary or overly broad manner, does not violate defendants’ constitutional rights, and does not result in a significant number of federal prosecutions of state and local officials. Rather, viewed from an economic perspective, Hortis argues that § 1346’s broad malleability, as a form of federal common law, is one of its greatest assets as it is more efficient to let the courts define crimes on a case-by-case basis than to redraft statutes to address new forms of corruption. Hortis further argues that centralizing enforcement at the federal level takes advantage of economies of scale and prosecutorial experience. Hortis concludes that § 1346’s broad applicability benefits the public by reducing prosecution costs with its lower evidentiary requirements, creating marginal deterrence against corruption, and reinforcing a desirable standard of conduct for public officers.

For several years, wine makers have sought to advertise and otherwise promote scientific research showing that moderate drinking can have beneficial health effects. The federal govermnent, however, has largely blocked the wine makers’ efforts, contending that advertisements or labels referring to alcohol’s potential health benefits would almost invariably mislead consumers into discounting alcohol’s numerous dangers. In this Note, Erik Bierbauer argues that wine makers and other alcohol producers have a First Amendment right to market the health benefits of moderate drinking, as long as they do so accurately and include certain limited disclaimers in their promotional materials

The securities brokerage industry is divided into those brokers who process their own trades and those brokers who use other firms to process their trades. The latter group, called “introducing brokers,” send their customers’ trade orders to “clearing brokers,” who then make the actual trades. Recent highly publicized cases of fraud by introducing brokers have led to closer scrutiny of the introducing broker-clearing broker relationship, and in particular, speculation over whether clearing brokers should be liable when they clear the trades of introducing brokers who are committing fraud. As the law now stands, clearing brokers are effectively immune from this type of liability, and the clearing broker industry has argued that any expansion of their liability would lead to clearing brokers abandoning the market. This Note uses the analytical structure of gatekeeping liability to argue for expanding clearing brokers’ liability for introducing brokers’ fraud.

This Note examines recent appellate cases and the policy rationale supporting increased judicial scrutiny of an arbitral decision. It contends that judicial review of an arbitral decision in a statutory employment dispute should be more rigorous than either statutory or common law currently permits. It further maintains that when broader judicial review proceeds within a clearly articulated framework, it may foster increased recourse to arbitration by ensuring an impartial forum for the vindication of statutory rights.

The premise of this Note is that parents have an interest in having children with whom they share symbolically identifying traits, and that this interest is a significant motivation in the decision to use ART. Consequently, if fraud, negligence, or other breach of legal duty frustrates that interest, those parents suffer a cognizable injury–even when that breach of duty results in the birth of a healthy baby. Recognition of the injury, however, raises more questions than it resolves, not the least of which is the problem of damages: Assuming that parents in these cases have a cognizable claim, what would the remedy be? Since no court has confronted this question, this Note analogizes it to wrongful pregnancy caselaw, concluding that the balance of countervailing harms and benefits developed in those cases best redresses the contemplated injury.

The exponential growth of Internet use around the world has prompted many governments to implement regulation of undesirable online content. This Note examines attempts by the United States and Germany to regulate Internet content within their borders and analyzes the different and sometimes conflicting legal constraints that operate in both countries. Though western democracies with similar constitutional protection of free speech, the United States, with a focus on pornography, and Germany, with a focus on extremist political speech, disagree on what sorts of content should be regulated on the Internet. These divergent interests of two similar nations display the need for a decentralized system of regulation that is flexible enough to achieve domestic regulatory goals while avoiding rigid, governmentally dictated content control. This Note argues that a market-driven regulatory system combining an Internet ratings regime with screening software may provide the best method to achieve two goals: (1) internalization of domestic legal constraints in an Internet regulatory regime; and (2) preemption of more drastic legislative regulation that may be politically expedient in the United States, Germany, or elsewhere.

This Note examines Sheff and its implications for Brown’s desegregation strategy. It contends that efforts to dismantle school segregation can indeed coexist with the aim of improving educational quality. An analysis of Sheff, the leading state case in this area, reveals two reasons why desegregating schools remains an important goal. First, desegregation is needed because racial isolation makes possible the institutionalization and entrenchment of ongoing racial discrimination. In the context of public education, this discrimination manifests itself through the stigmatization of students attending predominantly minority schools and through the devaluation of minority children and the lack of priority given to their life opportunities. Second, school districts should desegregate because race intersects with poverty such that the burdens of second-class school systems fall disproportionately on minority students. Accordingly, the problems of segregated schools require legislative action that will reduce racial isolation and counteract the extensive correlation between race and poverty. The state can accomplish this goal by initiating structural changes across the dividing line between Hartford and its suburbs.