Notes

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 In this Note, Keith Buell argues that the Edwards framework has become outdated in an age in which unsubstantiated and potentially false charges made by disreputable figures, publications, and Web sites play a significant role in the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.

Congress’s broad Spending Clause powers have the potential to circumvent federalism-based limitations on its other enumerated powers by requiring state complicity in federal schemes. When these schemes encroach on individual rights, the states’ ability to fulfill their federalist mandate to act as a check on the national government is limited. In this Note Brett Proctor uses the example of the Religious Liberty Protection Act of 1999, which would rely on the spending power to rehabilitate the Religious Freedom Restoration Act of 1993, to illustrate this danger. Proctor argues that the Supreme Court should prohibit indirect federal encroachments on rights and liberties, but that current spending power doctrine is unable to restrict some of these encroachments in light of judicial deference–deference based on countermajoritarian concerns–to legislative interpretations of the Constitution. Proctor suggests that the countermajoritarian difficulty dissipates in the context of conditional grants to states. He thus proposes a new, supplemental test that would deny Congress the power to compel state behavior via a conditional grant where such state behavior conflicts with an equality- or liberty-bearing provision of the Constitution, even if the state constitutionally could behave as Congress demands were it acting fully of its own volition.

Taiwan exists in the international arena as a fully independent state in form, but it has never declared itself independent. Taiwan’s reticence to take this step is caused by the People’s Republic of China’s claim that Taiwan is a “renegade province” of China. In this Note Christopher Carolan argues that an international law-based solution should be applied to determine whether Taiwan has a legitimate aspiration
to declare independence. This approach takes into account the history of Taiwan- China relations, which shows that–except for brief periods–Taiwan has long had a separate political existence apart from China. Carolan contrasts the claim that Taiwan properly belongs to China because of shared ethnic and cultural ties with post-World War II events that have created in the Taiwanese a strong, predominant preference for continued separation from China. He argues that international law is an effective means to settle international disputes objectively, especially as compared to an alternative rooted not in justice but in power. Finally, he takes account of international law on self-determination and statehood to show that by these standards, Taiwan already exists as a de facto independent state.

In Dolan v. City of Tigard, the Supreme Court announced a new heightened scrutiny standard for exactions, holding that the exaction must be roughly proportional to the harm the development causes. The Court proceeded to limit the application of the “rough proportionality” standard to adjudicative, and not legislative, land use decisions, reasoning that the risk of municipal “extortion” is much greater in the adjudicative context. In this Note, Inna Reznik surveys the lower courts applying Dolan and finds that there is much confusion over the legislative/adjudicative distinction. She argues that it is difficult to draw a line between legislative and adjudicative land use decisions, and that the distinction does not solve the extortion problem, which is just as likely to occur in the legislative context. Looking to the scholarship of Carol Rose and Vicki Been, the Note concludes that the Court should develop a new exactions standard that identifies those situations with the potential for government overreaching, specifically those in which the landowner has not had the opportunity of voice or exit.

In many bankruptcies, a state will be included among the creditors seeking payment from the debtor; the debtor will often, in turn, have claims against the state. In this Note, Troy McKenzie analyzes the limitations on bankruptcy court jurisdiction over claims involving states as a result of the Supreme Court’s interpretation of the Eleventh Amendment in Seminole Tribe v. Florida. He suggests that the courts and Congress still possess tools to minimize those limitations. First, he argues that the most important precedent on Eleventh Amendment sovereign immunity in bankruptcy, Gardner v. New Jersey, supports the conclusion that, when a state files a claim against a debtor, bankruptcy courts retain jurisdiction over any proceeding initiated by the debtor-whether transactionally related to the state’s claim or not-that must be resolved in order to adjudicate the state’s claim. Second, because a bankruptcy court’s ability to remedy some state violations of bankruptcy law is limited when the state has not filed a claim against the debtor, McKenzie argues that Congress should give states bankruptcy related incentives to waive their sovereign immunity in bankruptcy cases. In exchange for the preferential treatment of certain state claims afforded by the Bankruptcy Code, Congress may require states to enact a waiver of sovereign immunity in bankruptcy in the interest of securing the orderly and equitable operation of the national bankruptcy system.

In this Note, Lara Bazelon advocates the implementation of a reformulated infancy defense by juvenile courts. The defense would create a protective presumption for juveniles ages seven to eleven who are charged with serious offenses. This presumption would require the state to prove that the charged juvenile had both the capacity to possess and was in possession of the charged crime’s requisite mens rea. The defense would grant similar protection to juveniles over the age of eleven who could demonstrate lack of capacity sufficient to justify such a presumption. In defense of her proposition, Bazelon describes the development of the infancy defense and critiques the primary justifications behind its erosion, including the Rehabilitation Theory, the Procedural Policing Theory, and the Demarcation Theory. She analyzes the ongoing trend towards treating juveniles as “miniature adults,” the emphasis on punishment over rehabilitation in juvenile courts, and the psychological underdevelopment of juveniles as it relates to criminal behavior. Bazelon concludes by proposing a model statute that recognizes and attempts to account for the unique mental state of juveniles who commit serious offenses.

This Note proposes a reform of the operational test for charitable exemption found in § 501 (c) (3) of the Internal Revenue Code. Under current law, the operational test uses a facts-and-circumstances standard to distinguish activity that furthers a charitable purpose from unrelated activity and to determine how much unrelated activity to allow. Due in part to the common law’s expansive interpretation of the charitable purposes enumerated in § 501(c)(3), the operational test permits charities to engage in significant amounts of commercial activity without risking loss of exemption–the broader the definition of a charitable purpose, the more commercial activities may be related to it. Yet as commercial activity by charities increases, so too does the public perception that charities compete unfairly with for-profits and thus do not merit tax-exempt status. The perceived abuse of the charitable tax exemption puts pressure on the courts and the Internal Revenue Service to distort the scope of the current operational test in an effort to reduce commercial activity by charities. The result, a subjective “smell test,” has produced an inconsistent and unprincipled jurisprudence–sometimes even punishing charities for engaging in commercial activity that is related to charitable purposes. Further complicating matters is the Internal Revenue Service’s tendency to allow significant amounts of commercial activity in clear contradiction of operational test jurisprudence. This Note judges the current operational test to be unworkable and proposes a modified test to take its place.