Notes

A new computer protocol, the Platform for Privacy Preferences (P3P), now allows for the automatic translation of World Wide Web (Web) sites’ privacy policies into an easily understandable form. In this Note, William McGeveran proposes a framework for lawmakers to take advantage of this new tool and respond to the threat to data privacy on the Web without unduly hindering the free flow of information. Like P3P’s strongest supporters, he perceives advantages in a “P3P privacy market” where individuals could use P3P to understand Web site operators’ privacy practices clearly, forcing below-par operators either to strengthen their policies or to offer visitors some benefit in exchange for personal data. While its libertarian proponents view this structure as a substitute for legal regulation, however, McGeveran argues that the regime should be predicated on contract rather than property principles and that law must play an active role in shaping and supervising the resulting market. He concludes by demonstrating how such a framework leaves lawmakers free to make a wide range of normative choices about privacy protection.

The Alternative Dispute Resolution Act of 1998 provides broad authority for federal district courts to develop alternative dispute resolution programs for litigants. In this Note, Caroline Harris Crowne evaluates how such programs can be designed so that they complement adjudication and benefit disputants. She addresses concerns about justice and quality and urges courts to be sensitive to the differences between alternative dispute resolution and adjudication. She concludes by offering suggestions on how alternative dispute resolution administrators in the courts can foster customer service for disputants while maintaining a necessary amount of public accountability.

In this Note, Anita Sinha examines the treatment of asylum claims involving gender-related persecution. Analyzing the three most recent decisions published by the Board of Immigration Appeals, Sinha illustrates that these cases have turned on whether the gender-related violence can be linked to practices attributable to non-Western, “foreign” cultures. Sinha argues that cases involving gender-related persecution can be given full consideration of asylum law only when their adjudication is based on an understanding of the political and institutional character of violence against women, rather than on “cultural” culpability. In making this argument, Sinha examines recent amendments to the regulations governing asylum law that have been proposed to improve the adjudication of gender-related claims. Identifying their shortcomings, Sinha offers suggestions to improve the proposed regulations so that they would truly mandate equal treatment of asylum claims involving gender-related persecution vis-à-vis more traditional asylum claims.

In this Note, Richard Basuk explores the current application of the Federal Rules of Civil Procedure (FRCP) and the New York Civil Practice Law and Rules (CPLR) regarding expert witness discovery in medical malpractice cases. Basuk finds that, while both the FRCP and the CPLR claim to value principles of broad discovery, the federal rules surpass the CPLR in actually advancing those principles. The expert discovery provisions of the FRCP, as they apply to medical malpractice cases, successfully balance and incorporate the advantages of liberal expert disclosure. Their mandatory pretrial exchange of information allows parties to evaluate the strength of their cases, to achieve early and just settlements, and to prepare effectively for cross-examination so that trials proceed on cases’ merits. In contrast, the New York rules severely limit the exchange of expert witness information during discovery and thereby frequently prevent parties and the courts from reaching any of these goals. Basuk concludes that New York should more fully embrace the principles of the FRCP and adopt the federal language for expert witness discovery in medical malpractice cases.

When the World Trade Organization (WTO) came into being in 1995, it brought promises of international dispute resolution procedures that would supplant those in place from the General Agreement on Tarriffs and Trade. A series of decisions by WTO dispute resolution bodies concerning antidumping duties, however, have called into question their ability to provide dispute resolution in accordance with traditional legal norms. In this Note, David Yocis uses two decisions regarding antidumping duties on foreign cement in Guatemala–a Panel decision and a subsequent Appellate Body reversal on a procedural technicality–to illustrate that WTO procedures continue to reflect a preference for diplomatic rather than legal, means of dispute resolution. He concludes that, while the WTO dispute settlement system is an important step forward in the process of building a law-based system of international trade, it remains, in significant ways, more constrained by diplomacy than a truly independent judiciary.

In response to the 1993 kidnapping and killing of twelve-year-old Polly Klaas, California enacted a rigid mandatory minimum sentencing law known as Three Strikes. The product of public fear and political exploitation, Three Strikes engendered little rational debate prior to passage. Consequently, the law’s scope was far broader than Californians anticipated, and primarily incarcerated nonviolent felons. In the years following the law’s passage, concerns about lost proportionality and the systemic costs of Three Strikes led to widespread adaptation of the law. While modification of Three Strikes is universal across the state, the extent of adaptation varies county by county, as each county’s prosecutors enforce the law according to their own principles of proportionality. In this Note, Joshua Bowers analyzes the resulting geographic disparity in the California Three Strikes law and suggests that by applying the Three Strikes law according to personal and local principles, prosecutors are improperly usurping the legislative power to determine a single, coherent principle of proportional punishment. He maintains that varying approaches to Three Strikes render the law a kind of “checkerboard statute,” violating what Ronald Dworkin calls the value of integrity in the rule of law. To remedy this problem, California counties must apply the Three Strikes law in a single, uniform manner. Bowers concludes that it is neither desirable nor feasible for prosecutors uniformly to apply the Three Strikes law as written. Instead, to ensure consistent application, the California legislature must change the law to reflect better a principle of proportionality acceptable throughout California.

In recent years, New York’s drug sentencing laws–the Rockefeller Drug Laws–have come under attack due to their failure to reduce drug use despite the growing prison population. The political and academic communities now are debating how best to reform these laws. In this Note, Eda Tinto highlights the absence of a much needed discussion regarding the sentencing of certain women drug offenders. Qualitative studies have demonstrated that an underlying context of many women’s drug crimes is their involvement in an intimate relationship with a partner who uses or sells drugs. Tinto argues that these women drug offenders are often less blameworthy than other offenders and that therefore the sentences for their crimes are often unjust. Tinto concludes that the context of an intimate relationship should be acknowledged in sentencing and proposes reforms of the Rockefeller Drug Laws.

While all courts require that a judgment must be final in order to be issue preclusive, courts have diverged over what constitutes the appropriate level of finality. Courts confusingly have cited judicial economy as a reason both to extend issue preclusion to interlocutory judgments and not to extend issue preclusion to interlocutory judgments. In this Note, Seth Nesin argues that judicial economy will be enhanced by applying issue preclusion to interlocutory judgments in cases that later settle. Nesin reaches this conclusion by applying two behavioral models, and finding that each suggests that making such judgments preclusive will cause settlements to be made earlier and more frequently. Nesin then considers the impact of such a rule on judicial integrity and on fairness to litigants, and concludes that these factors do not suggest that courts should make all interlocutory judgments nonpreclusive.

In the rush to exploit untouched resources in remote regions of developing nations, multinational corporations and their local government partners often trample on indigenous land and culture, at times committing atrocities against the indigenous peoples. In this Note, David Fagan examines the use of unjust enrichment as a theory of recovery for indigenous peoples seeking redress for these actions in U.S. courts. Fagan finds that indigenous plaintiffs likely can satisfy the elements of an unjust enrichment claim, and that such a claim is harmonious with the policies behind the unjust enrichment remedy, as well as the practical and personal considerations of these plaintiffs. He concludes that, consistent with its origin as an equitable, novel solution to difficult problems, unjust enrichment would be a particularly appropriate claim for indigenous plaintiffs to pursue.

In this Note, Janet Carter argues that the anticommandeering principle announced in Printz v. United States should not constrain congressional implementation of treaty obligations. The Printz Court struck the balance between federal goals and states’ rights knowing that Congress had alternative means of achieving its ends: the spending power and the threat of conditional preemption. Carter argues that those alternative means are largely unavailable, or at least less likely to work, when Congress is seeking to implement a treaty obligation. Therefore, the Printz Court’s federal/state compromise will weigh too heavily against federal interests if applied to treaty-implementing programs, suggesting that an absolute prohibition on federal commandeering pursuant to the treaty power is inappropriate.