Notes

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.

Zoning ordinances began as a way for cities to control the negative externalities associated with urban land uses, as well as a means of protecting property values. By separating residential districts from factories and retail areas, early city planners hoped to stabilize neighborhoods and preserve the value of the homes in a given residential area. As a suburban ideal of the private family home emerged, however, local governments began to use zoning laws to regulate the characteristics and lifestyles of people living in certain neighborhoods. By zoning districts for single-family use and defining “family” narrowly, localities began to zone for direct social control, allowing communities to exclude groups of people deemed “undesirable” as neighbors. Because single-family home ordinances with narrow definitions of family tend to zone out low-income individuals who cannot afford to live without roommates or extended family, and because historically, America’s poor have been disproportionately ethnic minorities, these ordinances tend to perpetuate class and racial segregation.

The Note begins with an overview of peer sexual harassment in schools, emphasizing its frequency and severe effects, and an explanation of why schools should adopt antiharassment policies. It continues with a discussion of the judicial and legislative history of Title IX. Part II provides a brief explanation of Congress’s powers under the Spending Clause and describes the Fifth and Eleventh Circuits’ analysis of Title IX’s scope. Next, it considers the breadth of Title IX by using traditional tools of statutory interpretation and focuses on a Seventh Circuit opinion in which the court found that Title IX reaches peer sexual harassment. Part II continues with a discussion of sovereign immunity and the Fourteenth Amendment. This Part concludes by describing the analysis of courts that have found that Title IX is within Congress’s Fourteenth Amendment power and abrogates sovereign immunity. By establishing that Congress can use multiple powers to pass legislation and by analogizing Title IX to other laws, Part II argues that Title IX was passed pursuant to both the Spending Clause and the Fourteenth Amendment.

In this Note, Ariela Migdal considers the role of environmental law in the workplace. She argues that the protections environmental law provides against unsafe environmental conditions extend to unsafe conditions on the job. In particular the Resource Conservation and Recovery Act (RCRA) affords citizens broad protection against endangerment caused by solid waste. Migdal considers whether
RCRA’s citizen suit provision could be used to combat dangerous conditions in American garment sweatshops. She examines the factors that have prevented traditional labor laws from addressing these dangerous conditions, applies RCRA’s provision to the case of the garment industry, and concludes that the language and case law of RCRA accommodate its application to some of the dangers present in the sweatshop environment.

In recent years, increasing attention has been directed to the problem of adequate representation for indigent criminal defendants. While overwhelming caseloads and inadequate funding plague indigent defense systems of all types, there is a growing consensus in the legal community that low-bid contract systems-under which the state or locality’s indigent defense work is assigned to the attorney willing to accept the lowest fee-pose particularly serious obstacles to effective representation. In this Note, Margaret Lemos argues that the problems typical of indigent defense programs in general-and low-bid contract systems in particular-can and should be addressed through § 1983 civil actions alleging that systemic defects in the state or locality’s chosen method for providing indigent defense services constitute a violation of indigent defendants’ constitutional right to effective assistance of counsel. Lemos concludes that, by addressing the causes of ineffective assistance, such an approach can achieve positive change in a way that case-by-case adjudication of postconviction claims of ineffective assistance cannot.