Notes

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.

After discovering for the first time that one of its female cadets was pregnant, Virginia Military Institute (VMI) rewrote its parenting policy to provide for the expulsion of any student who becomes pregnant or who impregnates someone else. In this Note, Adina H. Rosenbaum argues that this new policy violates both Title IX—the federal statute banning sex discrimination in education—and the United States Constitution. Rosenbaum demonstrates that it is a violation of the pregnancy regulations promulgated pursuant to Title IX to expel women for being pregnant and that, in analyzing whether they have been discriminated against, the treatment of pregnant women should be compared to the treatment of similarly able nonpregnant men and women. Thus, the VMI rule, which expels pregnant cadets while allowing similarly qualified cadets to remain in the Corps, fails to meet the requirements of Title IX, even though it also calls for the expulsion of men who have impregnated women. Rosenbaum argues that the policy further violates Title IX because it will have a disproportionate impact, leading to the expulsion of all female cadets who become pregnant but not of all male cadets who impregnate someone. Finally, she explains how, through the policy, the State of Virginia infringes on VMI cadets’ constitutionally protected right of privacy, particularly their right to make procreative choices without state interference.

Multinational corporations and national governments who extract petroleum and other natural resources in Latin America often ignore the disastrous consequences resource development has on indigenous peoples, their habitats, and their traditional way of life. In order to reverse this trend, an indigenous peoples’ rights movement has emerged recently, seeking to equip indigenous groups with legal guarantees to safeguard their welfare. Although progress on the legal front has been promising, Gerald Neugebauer concludes that it has not yet accomplished enough, as there are numerous obstacles to effectuating strong human rights protections. He thus advocates adopting an alternative approach based on the stakeholder theory of corporate management—an approach that should result in greater participation and influence in resource management decisions for indigenous groups. In short, whereas human rights are articulated in abstract terms and rely on often ineffective government institutions for their enforcement, stakeholder arguments employ corporate terminology to inform petroleum companies directly as to why protecting indigenous interests is necessary to achieve conventional business objectives.

The United States Supreme Court currently understands parenting as a constitutionally protected, substantive due process right. Yet the divisive nature of the doctrine of substantive due process has resulted in a confusing cacophony of pluralities, concurrences, and dissents that offer little guidance to lower courts. In this Note, Merry Jean Chan offers a new model with which to understand the Court’s parental rights jurisprudence. Identifying the expressive aspects of both procreation and childrearing, she argues that the constitutional foundation for the protection of parental rights lies in the First Amendment. The First Amendment, however, is only part of the story. The democratic state has a valid interest in children and the continuing production of functioning, diverse citizens. This interest may conflict with parental prerogative. Chan observes that intellectual property law mediates a similar tension between state interests and expressive rights. She proposes the “authorial parent paradigm, ” conceiving exclusive parental rights as an incentive for and reward to those who meaningfully and responsibly contribute to the perpetuation of democracy through reproduction and childrearing. The interplay between the intellectual property analogy and the protections of the First Amendment serves to recognize both the rights of parents and the interests of the state.

Since 1997, several states have enacted legislation to increase patients’ ability to sue their Managed Care Organizations (MCOs) for negligent acts. These statutes address the obstacle imposed by the Employee Retirement Income Security Act (ERISA) preemption clause, which severely limits the exposure of MCOs to tort liability. In this Note, Wendy Silver acknowledges the usefulness of these statutes, but posits that they inadequately address the ERISA preemption problem. Under these statutes, patients may bring suit only if their MCOs negligently denied, delayed, or modified their physicians’ recommended course of treatment. Patients whose MCOs unduly and negligently influenced their physicians’ recommendations, however, cannot seek recourse against their MCOs. Silver argues that this loophole permits MCOs to skirt the liability these statutes provide by altering the way in which MCOs influence doctors. Silver concludes by proposing a statutory scheme that would increase MCOs’ exposure to liability, providing MCOs with sufficient financial incentives to maintain the proper quality of patient care.

In this Note, Robert Alexander Schwartz assesses the state of the debate in the latest chapter of the ever-unfolding law of arbitration. What works for high-value agreements between sophisticated parties in arms-length negotiation may not work for contracts of adhesion between businesses and consumers. Focusing on disputes arising under the Truth in Lending Act (TILA), Schwartz analyzes recent case law upholding arbitration agreements contained in consumer-lending contracts of adhesion, as well as recent scholarship criticizing the courts’ actions. He concludes that both the courts and the scholars have it wrong: Neither arbitration as presently constituted nor class action lawsuits can provide individual justice to TILA plaintiffs. Schwartz suggests an alternative legal framework for attacking unfair arbitration clauses while offering a set of modernizing improvements that might make arbitration a viable tool for the resolution of TILA claims and other consumer agreement disputes.

On three occasions, administrative agencies complied with orders of new Presidents to delay the effective dates of “midnight regulations” promulgated in the final days of the outgoing administration. Although rulemaking pursuant to presidential directives is increasingly common, the agencies’ exclusive reliance on presidential authority in these instances is unusual; the delays thus presented a rare opportunity for judicial review of presidential rulemaking. In this Note, B.J. Sanford argues that the delays were illegal. First, they cannot withstand the traditional “hard look” review of administrative action because they do not contain adequate justifications grounded in the authorizing statute. More importantly, by relying on presidential decree rather than statutory authority, the agencies crossed the thin formal line be- tween legally bounded administrative rulemaking and straightforward legislation, producing a constitutionally unacceptable concentration of arbitrary power. Although the immediate impact of this violation may be small, the consequences of repeated acquiescence to it may be much greater, as even small formal deviations, if not consistently challenged, can threaten the system of dispersed power contemplated by the Constitution.