Notes

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.

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.