Notes

In two 1996 decisions involving equitable subordination of claims in bankruptcy cases, United States v. Noland and United States v. Reorganized CF&I Fabricators of Utah, Inc., the Supreme Court did not answer the question of whether a bankruptcy court must find creditor misconduct before it equitably subordinates a creditor’s claim. In this Note, Rafael Pardo argues that the Court should have established a bright-line rule that requires such a finding, using prepetition, nonpecuniary loss tax penalty claims of the IRS as a model. After showing that, as codified in the Bankruptcy Cod, the doctrine of equitable subordination requires a finding of creditor misconduct, he analyzes circuit courts of appeals cases prior to Noland and Reorganized CF&I Fabricators that upheld equitable subordination of IRS prepetition tax penalty claims wider a no-fault standard. Pardo argues that use of a no-fault standard of equitable subordination by a bankruptcy court constitutes impermissible judicial activism, and concludes that any unfairness resulting from the treatment of claims by the Bankruptcy Code should be remedied by Congress.

The ability to obtain prescription medications over the Internet without a proper prescription has inflamed regulators nationwide. Federal and state officials alike have proposed a host of new laws and regulations that attempt to limit this burgeoning phenomenon. Yet premature regulation of Internet prescribing could prevent consumers from realizing the tremendous benefits the Internet might one day provide to the American health care delivery system. In this Note, Chester Chuang argues that subjecting Internet prescribing to a traditional failure-to-warn liability framework, rather than to additional regulations, adequately will ensure patient safety while allowing for the necessary innovations that will legitimize the distribution of prescription medications over the Internet. He suggests that pharmaceutical manufacturers can satisfy their duty to warn by contractually obligating websites that dispense prescription medications to implement comprehensive patient information systems. Chuang concludes that the proper application of this framework to these patient information systems will make certain that pharmaceutical manufacturers strike the proper balance between patients’ health and safety concerns and the possibilities of Internet prescribing.

The United States and Britain share a deep commitment to guaranteeing fair trials, but Joanne Brandwood argues in this Note that neither country effectively protects the rights of criminal defendants from the dangers posed by prejudicial publicity. She maintains that in Britain, because of loopholes in the law and pressures from modem media technology, harsh restrictions on the press unacceptably impinge on freedom of expression without adequately protecting defendants’ rights. In the United States, courts have powerful tools with which to guarantee fair trials without sacrificing First Amendment values; but trial courts often fail to deploy these protective measures, and appellate courts are extremely reluctant to challenge trial judges’ assessments of prejudice. Brandwood concludes that the most effective strategy for reconciling the conflict between the right to a fair trial and the right to freedom of expression combines British presumptions about publicity and American jury controls with effective restrictions on extrajudicial statements made by those most likely to prejudice criminal trials: attorneys and law enforcement officials.

Through their redundancy and the “reverse auction” dynamic they engender, competing class actions compromise the efficiency and fairness goals that justify the class action device and impose unnecessary costs on class members, defendants, the courts, and society at large. Yet, the Anti-Injunction Act, federalism, and comity concerns limit the ability of federal courts to enjoin competing state actions. Despite such limitations, some courts have utilized the “in aid of jurisdiction” exception to the Anti-Injunction Act to enjoin state actions that threaten to interfere substantially with the federal litigation. In this Note, Andrew Weinstein argues that building on these recent cases, federal courts should read the “in aid of jurisdiction” exception more expansively to permit injunctions in order to protect both the litigants and a court’s jurisdiction. Reconciling the merits of an injunction with the Anti-Injunction Act and related interests in federalism and comity, Weinstein devises four factors that federal courts should consider in determining whether to enjoin a competing state action.

In the wake of the Supreme Court’s landmark decision in Employment Division v. Smith, which overturned settled principles of free exercise jurisprudence, confusion abounds in the lower courts as to the reach and limitations of the Court’s new test for determining the validity of free exercise claims. In this Note, Carol Kaplan examines the doctrinal reasoning and the substantive outcomes of lower court cases. She finds that while some of the inconsistencies are attributable to an absence of details in Smith, which sketched the bare contours of a new test without stepping through its application, other decisions resist the implications of Smith, and carve out such wide exceptions from its rule as to render it almost redundant. To address this problem, Kaplan first discusses the policy and jurisprudential goals that underlie the Smith decision. She then proposes a doctrinal model for the Smith test that furthers those goals by articulating te steps of the neutral, generally applicable analysis and delineating the boundaries of the exceptions to Smith. Kaplan concludes that Smith serves a bifurcated function that, on the one hand, seeks to ensure parity in the civil obligations of religious and secular citizens, while on the other, offers a tool for rooting out instances of legislative discrimination against religion and mandates that judges apply strict scrutiny to decisions by unelected administrative officials that impact upon the daily lives of all citizens.

In this Note, Sheri Danz evaluates the impact of the evolution of the public forum doctrine on advocates’ claims of access to welfare centers. Welfare agencies often prohibit legal advocates from associating with and educating welfare applicants on welfare center grounds. Recently, courts have applied the public forum doctrine to uphold welfare agency restrictions on advocacy against First Amendment challenges by advocates. Danz argues that despite the increasingly formalistic and deferential nature of the Supreme Court’s public forum decisions, reviewing courts should not uphold welfare agency policies that prohibit advocacy in welfare center waiting rooms. She first examines the use of bureaucratic disentitlement practices by welfare agencies to deny applicants their statutory rights and deprive them of much-needed benefits. Danz argues that these practices invoke a core concern of the First Amendment-to protect the right of citizens to check governmental abuse. Next, she explores changes in the public forum doctrine and assesses their impact on advocates’ claims of access to welfare center waiting rooms. Finally, Danz identifies three grounds under the modern public forum doctrine that should lead a reviewing court to overturn prohibitions on advocacy at welfare centers: Restrictions on advocacy in welfare center waiting rooms lack the compelling interest required for restrictions in designated public fora, many prohibitions on advocacy reflect viewpoint-discriminatory motives, and courts that view restrictions as a component of bureaucratic disentitlement may find that restrictions on advocacy fail reasonably to promote legitimate governmental goals.

While the common law of libel holds each republisher of false and defamatory statements equally as liable as the original author, many courts have followed the Second Circuit’s 1977 decision in Edwards v. National Audubon Society in recognizing a “neutral-reportage” privilege to protect the republication in neutral news media of potentially libelous statements made by reputable figures. In this Note, Keith Buell argues that the Edwards framework has become outdated in an age in which unsubstantiated and potentially false charges made by disreputable figures, publications, and Web sites play a significant role in the public forum. After surveying a number of recent events in which information from “disreputable” sources was widely available and influenced public debate, Buell revisits the Edwards test and argues for a revision of the neutral-reportage privilege that both protects the rights and reputations of defamed individuals and promotes the search for truth and the public’s right to be know about the statements and beliefs that shape public policy.

In 1947, Congress enacted section 302 of the Labor Management Relations Act in order to regulate payments from employers to the union representatives of their employees. Whether originally intended by Congress or not, section 302 has been applied to the common labor practices of allowing employers to pay employees for part-time or full-time leave in order to work for their union. A split among the various circuit courts of appeals has developed as to whether these payments fall within an exception to section 302’s general prohibition and remains unresolved after the Supreme Court dismissed certiorari after the settlement of Caterpillar, Inc. v. International Union, UAW. In this Note, Christopher Garofalo argues that courts have struggled with the text of section 302 in order to allow payments for what, he argues, are beneficial and useful labor practices. However, Garofalo maintains that their interpretations of section 302 have created standards which are ultimately unworkable because they cannot distinguish beneficial from harmful practices in a principled way. Since the current statute’s textual limitations make it difficult to protect against conflicts of interest and corruption while allowing union representatives to be paid by employers, Garofalo concludes that a legislative solution is preferable to a judicial one and proposes an amendment to section 302 that constructively would resolve the issue.

During the past twenty years, several states have implemented statutory and common law presumptions against child custody for persons convicted of selected crimes. In this Note Deborah Ahrens argues that these measures represent an effort to mark convicted persons socially, rather than an attempt to protect children. Because the “best interest of tire child” standard currently permits courts to take into account any factors which affect child well-being when awarding custody, and because conduct considered under new law includes conduct outside the parenting ambit, statutory and common law presumptions operate to brand convicted persons as “other.” Ahrens analogizes new child custody provisions to other forms of collateral civil punishment for convicted persons, including disenfranchisement and deportation. The Note concludes that because these legal measures assume that the sort of person who would commit a crime is the sort of person who would harm a child-absent any evidence that the parent poses a danger to the child-parents convicted of selected crimes are unjustly denied child custody.

In this Note, Thomas Woods examines recent congressional proposals that would allow virtually all class actions to be filed in or removed to federal court. Woods begins by analyzing the problems of forum shopping and overlapping classes in current practice. Woods then argues that while the congressional proposals would alleviate these problems, the proposals would exacerbate federalism and docket congestion concerns. Woods concludes with a proposal for expanding the exceptions to federal jurisdiction proposed by Congress.