Notes

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.

The general justification defense, also known as the choice-of-evils doctrine, permits a criminal defendant to seek acquittal on the grounds that his crimes were necessary to prevent greater harm from occurring. In this Note, Adav Noti examines the moral theories that have been advanced to support this defense and argues that only one such theory, which he labels the “uplifted knife,” is truly congruent with the justification defense itself The uplifted knife theory stands for the proposition that it is immoral for the state to punish a defendant whose actions during an emergency situation could not have been impacted by the threat of legal sanctions. The Note shows that applying the uplifted knife theory to otherwise difficult justification cases would improve the courts’ ability to determine which defendants were actually deserving of acquittal. Thus, the Note proposes amendments to the justification statutes that would bring the statutory text more in line with its moral underpinnings.

Currently, defendants accused of a crime based on a cross-racial eyewitness identification are not afforded due process under the United States Constitution. In Manson v. Brathwaite, the Supreme Court developed a test to govern admissibility standards for eyewitness identification evidence. The test relies on the assumption that erroneous convictions occur mainly because police obtain identifications through procedures that improperly suggest whom the eyewitness should choose. While this assumption may be true for same-race identification, cross-racial identifications present a further problem. Scientists agree that people are far better at recognizing members of their own race than they are at recognizing members of another race and that this own-race bias causes mistaken identifications. In fact, according to studies, a Black innocent suspect has a 56% greater chance of being misidentified as the perpetrator by a White eyewitness than a Black eyewitness, even without suggestiveness. In order to ensure compliance with the Due Process Clause in cases involving cross-racial identifications, a new admissibility test must account for the racialized nature of memory. In this Note, Radha Natarajan develops an alternative test for cross-racial eyewitness identification evidence that is consistent with constitutional guarantees and scientific reality.

Fourth Amendment jurisprudence currently affords the home great protection against searches by law enforcement; since its decision in Kyllo v. United States, the Supreme Court has even protected the home from non-invasive scans. In this Note, Lee C. Milstein argues that focusing on the location of the search or scan rather than on the nature of the activity has a perverse effect on the protection of privacy interests. Scanning technologies that alert only to the presence of contraband or illegal activities, for example, could prevent the need for traditional searches of homes that incur substantial collateral damage to an individual’s privacy rights. At the same time, the focus on the home allows law enforcement virtually unfettered powers of surveillance in public, which can give law enforcement officers significant amounts of information about an individual. Milstein concludes by proposing a new approach to Fourth Amendment jurisprudence that would permit the use of highly particularized scanning technologies for law enforcement and by exploring the potential for the development of new technologies that would minimize invasions of privacy while making the enforcement of the criminal law more effective under this alternate approach.

The Telecommunications Act of 1996 (TCA or 1996 Act) aims to secure lower prices and higher quality services for consumers through vigorous competition among telecommunications carriers. Yet consumers have not enjoyed such results, in part due to carriers’ noncompliance with the 1996 Act. Regrettably, statutory gaps in the rules for remedying violations of the TCA have left consumers largely without recourse. In this Note, Daniel L. Cendan responds to the shortcomings of the TCA by discussing a circuit split that the Supreme Court will resolve this October 2003 term in Law Offices of Curtis V. Trinko, L.L.P. v. Bell Atlantic Corp. Cendan concludes that the Court should affirm Trinko’s holding that a complaint alleging sustained anticompetitive conduct-grounded in behavior that may be distinctly categorized as a violation of the 1996 Act-states a cause of action for exclusionary conduct that violates Section 2 of the Sherman Act. Cendan proposes that the antitrust laws, by shoring up the TCA’s weaknesses, provide a necessary complement to the TCA. Because not every violation of the TCA is a violation of the antitrust laws, a principled approach to antitrust enforcement should permit those complaints pleading a sustained course of anticompetitive conduct-under either a “refusal to deal” or “essential facilities” theory of liability-to survive a motion to dismiss for failure to state an antitrust claim; in contrast, courts should dismiss complaints that allege violations of the antitrust laws for mere isolated conduct that may have harmed competitors. Cendan concludes that whereas the TCA has failed to rigorously enforce consumer rights, the antitrust laws will provide fundamental consumer protection, both in acting as a deterrent to anticompetitive behavior and in providing remedies that are unavailable under the 1996 Act.