Notes

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.

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.