Notes

The Supreme Court’s decision in Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP marks a significant doctrinal shift in the long struggle to develop standards for exclusionary conduct prohibited by Section 2 of the Sherman Act. Yet Trinko‘s incautious treatment of exclusionary conduct and its uncertain scope threaten to add more confusion to Section 2 jurisprudence. In this Note, Frank X Schoen examines the manner in which Trinko has narrowed the grounds for stating a claim for exclusionary conduct and argues that Trinko should be interpreted as signaling a doctrinal departure from traditional frameworks for determining unlawful exclusionary conduct in favor of a short-term profit-sacrifice standard. However, the doctrinal tensions within the decision itself counsel a much narrower reading than might otherwise seem appropriate. This Note concludes that Trinko must be read narrowly to apply only to unilateral refusals to deal where prior courses of dealing or dealings with third parties provide the appropriate baseline for evaluating the conduct. Limiting Trinko to these circumstances addresses the Court’s concerns regarding the identification of and remedy for illegal exclusionary conduct and, moreover, accords with the rationales underlying the Court’s deferential treatment of price competition and innovation.

The ability to thrive in America’s mainstream financial economy is interwined with the ability to maintain a bank account. Yet, recent studies show that millions of American families do not own a bank account. While studies have pointed to various reasons behind this phenomenon, relatively little attention has been given to the banking industry’s own exclusionary policies regarding bank accounts. This Note critiques financial institutions’ use of an obscure credit reporting agency called ChexSystems. A bank reports an account to ChexSystems if it deems the account to be a “problem.” Each bank has discretion as to what constitutes a “problem” account. Research has shown that this discretion has permitted banks to report accounts to ChexSystems for very modest sums. Problematically, if an applicant appears in ChexSystems when attempting to open a new account, evidence has shown that most banks would deny that applicant a checking account for a five-year period, effectively blacklisting the applicant from mainstream financial institutions. In turn, these rejections force many families to rely on expensive alternatives to meet their day-to-day financial needs. In this Note, James Marvin Pérez posits that we must seriously question the banking industry’s use of ChexSystems. In light of historical banking practices, Mr. Pérez argues that ChexSystems may act as a pretext for discriminatory behavior among banks to exclude unwanted clientele. Additionally, Mr. Pérez explains that ChexSystems disproportionately punishes many consumers who have made only trivial mistakes. He offers additional factors for a bank to consider other than an applicant’s ChexSystems report when evaluating that applicant for an account. Finally, exploring federal legislation, Mr. Pérez ultimately advocates employing the Community Reinvestment Act (CRA) as a legislative tool to combat the apparent deficiencies with ChexSystems in order to bring millions of families back into America’s mainstream financial economy.

The link between environmental degradation and international security has attracted new attention due to the publication of the United Nations report A More Secure World: Our Shared Responsibility, authored by the High Level Panel on Threats, Challenges and Change, a group of experts assembled by Kofi Annan and tasked with advising the Security Council about new global threats. The panel specifically focuses on desertification, deforestation, and climate change as urgent global environmental threats possibly requiring Security Council action because of their potential to cause massive loss of life and undermine state functions. The report provokes important questions: If,fo r example, a nation embarked upon a massive deforestation campaign which upset the ocean currents and threatened to send an entire continent into a deep freeze, would the Security Council be able to take measures against the offending nation to counteract this massive environmental threat? In this Note, Alexandra Knight argues that it is legally justified and legitimate for the Security Council, acting under the provisions of Chapter VII, Article 41 of the United Nations Charter, to impose measures to counter regional or global threats to the environment which pose a grave threat to human life and living conditions. While Chapter VII measures also include the use of force, Knight argues that only Article 41 measures—non-military measures like sanctions or interruption of communications—are appropriate to counter environmental threats.

Large industrial livestock and poultry farms, known as “factory farms” or “confined animal feeding operations” (CAFOs), pose serious threats to regional air and water quality. Because the widespread existence of factory farms post-dates our nation’s environmental laws, they remain largely exempt from emissions regulation. In recent years, the Environmental Protection Agency, the states, and environmental groups—via citizen suits—have begun to bring CAFOs into the regulatory fold. However, scientific challenges, political gamesmanship, and the time and cost required to craft traditional regulation make the success of these programs uncertain at best.

This Note argues that proponents of factory farm regulation should adopt a new approach, focusing on information-based regulatory tools (so-called “reflexive law”). Reflexive law policies mandate the public disclosure of information, whether in the form of raw data, hazard warnings, or environmental labels. In practice, well-crafted reflexive law programs have had a powerful shaming effect on polluters, while also enabling consumers, business partners, and even shareholders to exercise their displeasure with polluting industries and their support for more environmentally responsible companies. Reflexive law is also faster and cheaper to implement than command-and-control regulation, and it represents a more politically palatable approach to the problem of CAFO pollution.

The Note explains why reflexive law is well-suited to factory farm pollution, identifies the key elements of a successful reflexive law program, and then proposes a series of reflexive law approaches for factory farms that could be enacted independently or in conjunction with more traditional regulation. It ecommends immediately supplementing ongoing efforts with reflexive law programs.

This Note explores the First Amendment implications of embedded journalism and its alternatives. Despite its media-friendly stance, embedding imposes limitations on press access and substantive coverage that raise First Amendment concerns about governmental distortion of the news—most significantly, a substantive and structural tendency to promote pro-military coverage. Despite these concerns, this Note finds that embedding does not facially violate the First Amendment. It further argues that the embed structure promotes free speech principles better than alternative methods of regulating wartime reporting. Unlike a complete ban on press access or the removal of restrictions, embedding at least allows for an abundance of intimate coverage, increases the transparency of governmental discretion, and promotes clear standards for military accountability. Accordingly, this Note concludes that the embed program’s sanctioned supervision is the most supportive of First Amendment values and offers some policy suggestions to mitigate worries about distorted coverage.

Pharmaceutical manufacturers must conduct extensive research to prove the safety and efficacy of a new drug before it can be sold to the public. However, once the Food and Drug Administration (FDA) approves a drug for one use, doctors may prescribe it to patients for any purpose for which they believe it may be beneficial. Because manufacturers are not required to prove the efficacy of a product for these “off-label” uses, research upon which physicians might base treatment decisions involving novel uses of approved drugs is likely to be lacking. In this Note, Mitchell Oates addresses two interrelated problems: a lack of research into off-label uses of pharmaceutical products and a failure, when such research is undertaken in the first place, to ensure that the findings are made public. He argues that there are limited incentives for pharmaceutical manufacturers to conduct research into the efficacy of off-label uses of their approved products. Furthermore, even when a manufacturer does conduct such research, the public benefit that results is uncertain because the manufacturer is under no obligation to publish or otherwise disseminate the data, and it is unlikely to voluntarily release research findings that might be damaging to sales. While manufacturers must submit summaries of post-approval research to the FDA, public access to these data is blocked by various legal provisions that protect against the release of trade secrets and confidential commercial information. Oates argues that the application of such provisions to data pertaining to off-label uses is inappropriate because the release of such data is unlikely to cause competitive harm to the manufacturers whose research is disclosed. In light of the problems identified and the lack of legitimate objections based on competitive harm, manufacturers should be required to conduct research into some off-label uses of their products and to disclose the data in a form useful to practitioners. Oates concludes by outlining a potential solution, modeled after an existing legislative scheme, the Best Pharmaceuticals for Children Act.

The dramatic increase in the number of people leaving the nation’s prisons and jails has contributed to a renewed interest in safe community reentry strategies. While issues surrounding housing, employment, and recidivism have dominated the scholarly landscape in this area, far less attention has been paid to those collateral consequences which affect ex-offender access to credit and financial services. For example, government financial assistance agencies and the private lenders that participate in government-sponsored lending programs routinely inquire into borrowers’ criminal histories, and one federal court has held that criminal exposure bears a direct relationship to creditworthiness. In this Note, the author weaves fair lending principles (as expressed in the Equal Credit Opportunity Act) with the goals of effective reentry policies and argues that despite the possible existence of a correlation between criminal exposure and likelihood of default, the use of criminal history in any determination of creditworthiness should be prohibited or at least curtailed. Given the practice’s serious implications for both the ability of individual ex-offenders to reenter society effectively, as well as for the ability of receiving communities to effectuate crime prevention and community development initiatives, the author argues that the federal government ought to take the lead in developing statutory and administrative solutions that effectively fill the “advocacy gap” in credit and financial services where recourse to the courts is not available.

Margaret Jane Radin’s personality theory of ownership posits that property that is bound up with the identity of its holder deserves the highest level of protection, so long as there is an objective moral consensus that the holder’s attachment to the property is healthy. In recent years scholars have relied on Radin’s theory to claim that objects like the Parthenon Marbles are so tied to the identity of a particular cultural community that group ownership of them is justified. Furthermore, they argue that the group whose identity is bound up with an object has a stronger claim to it than a rival with no such connection or a rival whose connection has been deemed unhealthy by an objective moral consensus. Yet neither Radin nor scholars extending her theory to the cultural property context have explained how to determine when such an objective moral consensus exists. This Note argues that jus cogens norms of customary international law should be considered a source of “objective moral consensus” for the purpose of distinguishing healthy from unhealthy group property claims under Radin’s theory. Jus cogens norms are valued by so many people across different cultures that there is an objective moral consensus—or the closest thing to it—that violating them is wrong. If an object is bound up with the identity of a cultural group in a way that violates one of these norms, promotes practices that violate one of these norms, or purposefully expresses adherence to contrary beliefs, then that claim to the property is unhealthy and should not be protected against the healthy claims of other groups.

A court’s method of decisionmaking regarding interstate choice of law affects forum shopping and class action strategy. Rather than read vaguely worded state statutes with the expectation of discovering a legislative intent with respect to extraterritorial application, as the Restatement (Second) of Conflict of Laws suggests, courts should employ a rebuttable presumption that the legislature has not considered the choice of law issue. When a court is faced with an interstate choice of law question in which one potentially applicable law is a statute of the forum state, in the absence of explicit statutory language regarding how a choice of law analysis should be conducted for the forum statute in question, the court should decide which law to apply not by attempting to divine some nonexistent legislative intent but by resorting to the general choice of law principles utilized in the forum state.

A New Test for the Locally Inapplicable Standard

Ever since Puerto Rico was acquired by the United States following the Spanish-American War, Congress and the courts have struggled with applying federal law to the island. Puerto Rico has been treated alternately as a state, territory, or something in between for purposes of federal law since the island became a commonwealth in 1952. In this Note, Elizabeth Vicens argues that in determining whether a federal statute should apply to Puerto Rico, in the absence of a clear statement by Congress, courts should inquire whether the law contradicts an overriding local interest. This test is based on the language of the Puerto Rican Federal Relations Act, which states that federal laws that are “not locally inapplicable” shall be applied to the island. After supporting the proposed model of statutory interpretation, Vicens applies the test to a recent controversial application of federal law to Puerto Rico: the application of the Federal Death Penalty Act. Vicens argues that under her model, the First Circuit should not have applied the Federal Death Penalty Act in United States v. Acosta-Martinez. The Note concludes that this test will aid Congress and the courts in a murky area of law, as well as help to improve U.S.-Puerto Rican relations.