Notes

Like many other transitional democracies, South Africa has chosen to run its two national postapartheid elections by an independent electoral commission, not by the existing government. Although the results were widely considered legitimate, the perception of legitimacy was due in large part to the public’s low expectations. To keep the public confidence, and to avoid the sorts of large-scale breakdowns in the electoral process that might undermine it, the current Electoral Commission must embrace major reforms. One of the Electoral Commission’s most pressing problems is the fact that opposition parties believe it is strongly biased in favor of the ruling political party, the African National Congress. The Electoral Commission also has failed to devolve meaningful power to provincial officials, increasing the risk that it will botch the details of election management. The author proposes several measures to help resolve these concerns.

In this Note, Anastasia Crosswhite examines land ownership of elite women in early modern England. Studying property disputes within two of the richest aristocratic families in early modern England, the Manners and the Talbots, Crosswhite fills a gap in English historical literature and also complicates the common scholarly view that the early modern English legal and social systems rendered female control and ownership of land a rarity. Although finding that the legal system generally discouraged female property ownership, Crosswhite also discovers that the women of the Manners and Talbot families did own, manage, and control land. In addition, the legal system itself provided the opportunity to do so, for it routinely placed the control, albeit often temporary, of land in women’s hands. Yet these opportunities had to be exploited by individual historical actors, and Crosswhite concludes that the men and women of the Manners and Talbot families, being able manipulators of legal and social structures, did so to the benefit of themselves and their families.

In the course of enforcing laws against child pornography, law enforcement agents often engage in undercover operations that involve mailing child pornography to suspected consumers. In this Note, Howard Anglin argues that Congress and the Supreme and circuit courts have clearly established that children portrayed in pornography are harmed every time the pornographic images are viewed. The current law enforcement practice of mailing child pornography therefore injures children each time it is carried out. Under the doctrine formulated in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, this injury is actionable by the children involved and may lead to monetary damage awards against the agents who choose to send pornography to criminal suspects. Thus, law enforcement agencies should alter their practices to avoid Bivens liability and adhere to Congressional admonitions not to injure the innocent in order to catch the guilty.

The infusion of women into the workforce in the 1960s brought great freedom but also great difficulty. Without women at home to tend to the sick, raise children, care for the elderly, and manage households, workers of both sexes (but particularly women) struggle to balance this “care work” with outside wage work Laws which prohibit discrimination against employees because of their status as parents purport to solve this problem by allowing parents to perform child care without workplace conflict. In this Note, P.K. Runkles-Pearson argues that these laws are an incomplete and potentially dangerous solution to the tension between work and family, because they ignore the diverse care work needs of employees who do not parent. Ignoring non-parents leads to inefficient labor markets, leaves all groups including children-with less than optimal care, discourages reproductive choice, and provides an unbalanced discrimination remedy that contravenes the very nature of American antidiscrimination laws. Instead of the current system, Runkles- Pearson proposes antidiscrimination laws that protect both parents and nonparents from discrimination on the basis of their parental status.

Section 2 of the Voting Rights act guarantees minority voters an equal opportunity to elect their candidates of choice. It requires states to create effective “majority-minority” districts, in which minorities constitute the majority of voters, when voting is racially polarized and the minority population is sufficiently large, compact, and cohesive. Because voter-turnout rates traditionally have been lower in minority communities than in white ones, prevailing academic and judicial opinion holds that states must raise the population of minorities in a certain district above a simple voting-age majority in order for that district to satisfy section 2’s mandate. Theane Evangelis argues that this practice is constitutionally suspect in a situation where low minority turnout cannot be ascribed to past discriminatory practices. The Supreme Court’s holding in Shaw v. Reno dictates that “excessive reliance” on racial factors in districting triggers strict scrutiny. Under strict scrutiny, race-based government policies must be narrowly tailored to satisfy a compelling government interest in remedying past discrimination if it is to pass muster under the Equal Protection Clause of the Fourteenth Amendment. But recent empirical evidence indicates that minority voter turnout has equaled or exceeded white voter turnout in some jurisdictions, casting doubt on the widespread assumption that current low minority turnout stems from past discrimination. Because the state’s justification for augmenting a minority group’s population within a district must be remedial in order to satisfy the compelling state interest prong of the strict scrutiny test, this doubt assumes constitutional proportions. Therefore, a proper interpretation of the Voting Rights Act should not require states to compensate for low turnout when fashioning their majority-minority districts.

The Prison Litigation Reform Act (PLRA), enacted in 1996, creates numerous procedural requirements for prisoners who file civil claims challenging their conditions of confinement. Despite the severe burdens created by the PLRA and the questionable constitutionality of the filing provisions, many courts and commentators have applauded the PLRA. Not surprisingly, few challenges to the PLRA have met with success. In this Note, Ann Mathews argues that, at a minimum, the PLRA should be interpreted narrowly to exempt prisoners’ claims of excessive force from the statute’s requirements. As Mathews demonstrates, excessive force claims constitute a discrete and particularly serious category of prisoner claims that traditionally has been treated with heightened sensitivity by federal courts, including the Supreme Court. Mathews further argues that Congress, in drafting the PLRA, also recognized that increased deference is appropriate for prisoners’ claims of excessive force. Mathews concludes that excluding such claims from the PLRA not only comports with judicial precedent, statutory language, and congressional intent, but also represents appropriate public policy.

While the Foreign Sovereign Immunities Act generally prevents foreign states from being the subject of lawsuits in U.S. courts, countries that have been designated as state sponsors of terrorism by the Secretary of State are exempted from this protection. Judgments entered under this “terrorism exception” already total more than three billion dollars, with a number of suits still pending. These judgments may pose difficulties for future attempts to normalize relations with the defendant countries. In this Note, Daveed Gartenstein-Ross argues that the best method for resolving these outstanding judgments is to terminate them and resubmit the claims to ad hoc international tribunals. Although successful plaintiffs whose judgments are abrogated can bring takings claims against the government, he argues that those claims should be surmountable through a sensible application of takings jurisprudence.

In response to worries that the National Labor Relations Board was protecting free speech insufficiently, particularly during representation election campaigns, Congress amended the National Labor Relations Act in 1947 to include section 8(c), which imposes broad restrictions on the Board’s ability to regulate speech under its unfair labor practice authority. The efficacy of that provision, however, is limited severely by the Board’s “laboratory conditions doctrine,” famously announced in General Shoe Corp., which expressly authorizes expansive regulation of representation election campaign speech under another of the Board’s statutory powers. In this Note, Shawn Larsen-Bright challenges the use of the laboratory conditions doctrine to regulate otherwise protected speech. Larsen-Bright argues that the doctrine is in serious tension with congressional intent and cannot be reconciled with modern free speech jurisprudence. He concludes by examining and endorsing a recent case arising under the Railway Labor Act in which the D.C. Circuit similarly and persuasively rejected laboratory conditions reasoning.

In 1989, the Supreme Court held that Title VII protects against discrimination on the basis of sex stereotypes. Since then, sex-stereotyping jurisprudence has developed to protect many people who are discriminated against because of their failure to conform to a wide array of stereotypes about appropriate behavior and appearance for a particular sex. However, the judiciary has denied significant portions of the population protection from discrimination based on sex stereotypes by using a victim’s nonconformity to a particular stereotype to define a “gender-loaded identity,” and then finding that discrimination on the basis of that identity class is not discrimination based on sex or sex stereotypes. Thus although the law is clear that discrimination based on one’s failure to conform to stereotypes about appropriate clothing for a particular sex is in violation of Title VII, when a discrimination victim is classified as a crossdresser or transvestite most courts have found that such discrimination is permissible because it is based on transvestitism and not sex or sex stereotypes. Similar gender-loaded identities include the classifications of lesbians and gay men, who are defined based on their failure to conform to sex-specific stereotypes about appropriate sexual partners, and the classification of transsexuals, who are defined based on their failure to conform to many sex-specific stereotypes about appropriate behavior, appearance, and identity. This Note argues that the judiciary’s use of these gender-loaded identities is unjustified and obscures most courts’ analyses of sex-stereotyping claims.

Private antitrust litigation has been encouraged by the grant of attorney’s fees and treble damage awards to successful antitrust plaintiffs, but such pro-plaintiff provisions can prove to be costly because of the potential for abuse that these provisions create. In this Note, William H. Wagener focuses on the particular effects of granting an award of attorney’s fees to successful plaintiffs, also known as “one-way fee shifting.” Relying on modern economic analysis of litigation, he argues that the existence of one-way fee shifting in private antitrust litigation often eliminates a defendant’s ability to retaliate to overbroad and burdensome discovery requests by an antitrust plaintiff. Fee shifting, along with substantial increases in discovery costs and weak judicial safeguards against discovery abuse, creates a structure under which an opportunistic plaintiff can extract sizable settlements far greater than the expected award at verdict, regardless of the strength of the plaintiffs antitrust claim. Wagener argues that while promoting private enforcement of antitrust law is desirable, some reforms may be needed to deter such abuses in antitrust litigation. He concludes that nuisance litigation can be significantly reduced without unduly prejudicing legitimate antitrust claims through either eliminating or modifying the fee-shifting provisions in private antitrust litigation, or by instituting higher pleading standards for antitrust lawsuits than what the rules of civil procedure currently provide.