Notes

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.

The City of Moscow continues to enforce a restrictive residence registration regime similar to the propiska system that prevailed in the Soviet era-despite constitutional guarantees of the freedom of movement, federal statutory provisions implementing that right, and Constitutional Court rulings that such restrictions are unconstitutional. In this Note, Damian Schaible argues that the continued restrictions represent more than simply an ongoing violation of the human rights of Moscow’s illegal residents; they are also an indicator of Russia’s imperfect transition to the rule of law and a practical obstacle to the success of that transition.

Parents or caretakers may be charged with a form of criminal or civil penalty called “failure to protect” when they do not prevent another person from abusing the children in their care. Although couched in gender-neutral terms, defendants charged with failure to protect are almost exclusively female. In this Note, Jeanne Fugate suggests that the unequal numbers of women facing such charges can be explained by the higher expectations that women face in the realm of parenting and child care. She then offers several changes that should be made to the content and enforcement of failure-to-protect statutes. First, she argues that, to ensure that recent expansions of the duty do not implicate unfairly women, laws and courts should define clearly what actions establish a duty to protect children. Second, to avoid unfair expectations of women’s responses to child abuse, failure-to-protect laws should delineate the steps persons must take when they become aware of abuse. Finally, Fugate concludes that every state should adopt an affirmative defense to excuse persons who fear for their safety or the safety of abused children.

A number of claims brought in federal courts across the United States document stories of working mothers who have encountered workplace discrimination directed at their breastfeeding status. Federal courts considering these claims uniformly have agreed that sex discrimination based on breastfeeding is not actionable under Title VII as amended by the Pregnancy Discrimination Act (PDA). In this Note, Diana Kasdan argues that this jurisprudence fails to consider the intent of the PDA and instead revives the flawed and rejected analysis of General Electric Co. v. Gilbert, which, prior to enactment of the PDA, wrongly held that discrimination directed at a gender-specific condition such as pregnancy was not Title VII sex discrimination. In critiquing these cases, Kasdan suggests that they ignore the gender-specific nature of breastfeeding, thereby improperly foreclosing the application of Title VII to breastfeeding-based claims. She argues that the statutory language, legislative intent, and Supreme Court interpretation of the PDA support an interpretation that includes breastfeeding within the scope of Title VII’s antidiscrimination protections. Finally, Kasdan concludes that such an interpretation of the PDA is essential to preserving the integrity of Title VII law and ensuring the advancement of women in the workforce and public life.

In this Note, Daniel J. Schwartz explores the connections between voter turnout, interest group mobilization, and the standards by which courts assess the constitutional validity of legislative enactments. As traditionally conceived, democracies only function properly when citizen participation in government is widespread and knowledgeable. Since the 1960s, however, few citizens have voted in American congressional elections and fewer still have been aware of the issues at stake. While political scientists attribute this situation to various causes, they agree that an important factor is a lack of electoral mobilization—that is, the process by which interest groups and others stimulate citizens to go to the polls. Drawing from public choice theory, which posits that interest groups use political contributions and electoral support to buy rent-seeking laws from legislatures, Schwartz suggests that groups engage in little electoral mobilization because they successfully obtain the rents they seek through other means, such as lobbying and litigation. He argues that courts reinforce this state of affairs by reviewing the constitutionality of most legislation with a very deferential standard, thereby protecting the value of lobbying and litigation as means of cementing legislative bargains. Schwartz thus proposes that the deferential review of a statute should be contingent on a showing of fifty-percent turnout in the two elections prior to its enactment. He argues that such a condition would decrease the value of lobbying and litigation relative to that of mobilization, which, in turn, would furnish interest groups with the right incentives to turn out voters at election time.