Notes

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.

The ability to assign grades to students is an element of a professor’s academic freedom that has been litigated in several circuits with different results. In this Note, Evelyn Sung explores the differences in the methods of analysis employed by the courts to determine the level of constitutional protection appropriately accorded to professors and the extent to which college administrators may exact alterations in professors’ grading policies. Sung evaluates education theory and conducts historical analysis to determine that grade assignment qualifies as symbolic speech under current caselaw. Accordingly, the interest of professors to assign grades must be balanced against the interest of college administrators to promote efficiency in the services they provide, such as the thorough preparation and evaluation of graduating students. The maintenance of standardized grading policies, Sung argues, is at the core of the mission of the public university. A college administrator’s interest in making grades consistent and meaningful must be balanced delicately with a professor’s First Amendment right to assign grades.

Expert testimony is said to be reliable only when based upon sound method. Historians are often called upon to give expert testimony at trial to help the jury understand the subject matter of the dispute in historical context. Just as scientists must adhere to the scientific method, historians must conform their testimony to the historical method, requiring them to respect the pastness of the past by grappling with the complexity and inconsistency of the historical record and dealing appropriately with contrary evidence. Failure to adhere to the historical method results in unreliable testimony wherein the historian becomes advocate instead of advisor. Unfortunately, the adversarial nature of the courtroom can make historians stray from historical method. In this Note, Jonathan Martin explores the problem of expert historical testimony in federal courts and suggests that the public-law nature of most cases employing historical testimony, as well as a concern for intellectual due process, should prompt federal judges to overcome their traditional reluctance to appoint neutral experts under Rule 706 of the Federal Rules of Evidence. When appointed by the court, Martin argues, historians will serve less as advocates and more as advisors.

Trade secret theft, the unauthorized use and appropriation of proprietary information, recently has received significant attention at both the national and international level. The Economic Espionage Act of 1996 (EEA), the first federal law to address proprietary information, criminalizes the theft of trade secrets. Article 39 of the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS), the World Trade Organization (WTO) agreement mandating minimum levels of intellectual property protection for member nations, is the first international treaty to require protection of proprietary information. This Note explores the relationship between the EEA and TRIPS. The EEA is an unusually protectionist trade secret statute, controversial in scope even within the United States. The EEA gives substantive trade secret protection to certain classes of information and actions, providing guarantees that are more extensive than under the TRIPS Agreement. This Note considers these differences in the context of extraterritorial application of the EEA and the sovereignty interests of other signatories to the WTO. It examines the legal framework within which U.S. courts considering the EEA may limit the extraterritorial scope of the statute. Using principles of international law and statutory interpretation, this Note concludes that the extraterritoriality provisions of the EEA can be given a limited construction that gives force to both the statute and the treaty.

As Americans respond to the events of September 11, 2001, they are being forced to contemplate their place in American history—past, present, and future. This has become particularly stark in the fight over secret deportation hearings. Following September 11, Attorney General John Ashcroft announced that the deportation hearings of “special interest” aliens would be closed to the public. Applying Richmond Newspapers’s two-pronged logic-and-experience test, the Third and Sixth Circuits subsequently split over the constitutionality of the blanket closure. At the heart of their disagreement was the scarce history of deportation hearings and whether such hearings had been closed in the past. In this Note, Harlan Grant Cohen argues that the “history” test applied by the two courts has been misconceived. Drawing upon the history of the Palmer Raids of 1919-1920 and the treatment of Russian and Eastern European immigrants during the first Red Scare, Cohen argues that in examining the secret deportation question, Americans must ask themselves not what they have done in the past, but instead what lessons they should learn from those historical practices. Only with this deeper understanding of the past will Americans truly be able to understand the difficult policy choices of the present.