Title VII’s Midlife Crisis: The Case of Constructive Discharge – Article by Martha Chamallas

From Volume 77, Number 2 (January 2004)
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Understanding Title VII law has never been easy. From the beginning, there have been sharp disputes about the meaning of “discrimination” under the Act and the degree to which employers should be held strictly accountable for discriminatory actions of supervisors and employees. Early debates tended to pit those who envisioned the Act as a results-oriented measure aimed at ending racial and gender hierarchies in the workplace against those who viewed the legislation primarily as a process-oriented check against the use of race or gender as a factor in employer decisionmaking. The former generally endorsed a broad interpretation of the Act generous to plaintiffs, while the latter tended to be more receptive to interpretations favoring employers.

The fault lines in contemporary scholarship are much harder to characterize. Contemporary doctrinal debates have tended to focus narrowly on particular statutory provisions or modes of proof, and emerging theories do not always line up as predictably along ideological lines. The interplay between Congress and the Supreme Court has only made things messier: On several occasions, Congress has stepped in to express its disapproval of conservative Court rulings, without, however, dramatically changing the prevailing judicial approach to interpreting the Act. The last major statutory revision was the 1991 Civil Rights Act, a sweeping reform that affected each major framework of liability, introduced jury trials, and significantly altered the remedial scheme of the Act.


 

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A Market-Based Approach to Telecom Interconnection – Article by David Gilo

From Volume 77, Number 1 (November 2003)
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This Article offers a new solution to the problem of interconnection among telecom networks. According to the Federal Communications Commission’s (“FCC”) proposal, interconnection between local exchange carriers (“LECs”) and long-distance carriers would be mandatory, and all charges demanded by LECs for outgoing and incoming long-distance calls would be regulated down to zero. In contrast, this Article proposes simple regulatory changes that would foster the deregulation of interconnection between long-distance carriers and LECs. Such regulatory changes would enable several market forces, revealed by the Article and neglected by the FCC and the previous literature, to keep LECs’ charges for interconnection from rising above competitive levels and encourage carriers to interconnect. First, long-distance carriers should be allowed to transit long-distance calls made to one LEC’s subscribers by interconnecting with the competing LEC. The Article illustrates that if LECs are forbidden from charging each other for completing each other’s calls, the credible threat to use such transit will induce each LEC to interconnect directly with long-distance carriers and to charge them voluntarily for incoming calls no more than the competing LEC’s marginal costs of transit. Moreover, future growth of cellular telephony and broadband Internet-protocol telephony is expected to strengthen this market force, especially if the FCC’s current requirement that long distance carriers average their rates is eliminated. As to the rates LECs charge long-distance carriers for long-distance calls made by the LECs’ subscribers, if the Telecommunications Act of 1996’s (“1996 Act”) requirement that long-distance carriers equalize their rates is amended, direct competition among LECs is shown to restrain them. Even short of amending the 1996 Act, the Article shows how long-distance carriers’ ability to ask one LEC to transit long-distance calls made by the competing LEC’s subscribers is expected to drive these rates down to the marginal costs of transit. The Article shows how interconnection among the LECs themselves should be regulated in order to enable the proposed deregulation of interconnection between the LECs and long-distance carriers. First, interconnection among LECs themselves should be mandated. Second, LECs should not be allowed to charge each other for completing each other’s calls. The Article also exposes an additional justification for not allowing LECs to charge each other for completing each other’s calls: LECs might negotiate an excessive reciprocal rate for such calls to enforce an implicit commitment on the part of a new LEC entering the market to focus only on “net receivers of calls” (such as Internet service providers), leaving the rest of the market to the incumbent.


 

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Gatekeeper Liability – Article by Assaf Hamdani

From Volume 77, Number 1 (November 2003)
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The recent crisis in the wake of the Enron debacle has demonstrated the importance of enlisting gatekeepers – such as accountants, underwriters, and lawyers – to prevent corporate fraud. But while a consensus may exist over the basic need to expand liability to gatekeepers, little is known about the appropriate scope of such liability. Going beyond the capital-market context, this Article develops a framework to determine the scope of gatekeeper liability for client misconduct. Specifically, the Article analyzes the fundamental tradeoff between the potentially adverse impact of gatekeeper liability on relevant markets and the incentives such liability provides for gatekeepers to foil wrongdoing. Expanding the scope of their liability will make gatekeepers increase the price of their services to reflect their liability exposure. Although initially appealing as a means to screen out wrongdoers, this price increase may turn out to have adverse consequences when clients vary with respect to their wrongful intentions: Rather than screen out wrongdoers, gatekeeper liability may drive out only law-abiding clients. Enhanced liability, however, will also induce gatekeepers to monitor clients and prevent them from committing misconduct. The Article explores the policy implications of this analysis for determining which third parties should face gatekeeper liability, identifying the adequate scope of gatekeeper liability, and recognizing the shortcomings of gatekeeper liability as an instrument of social policy. The Article concludes by putting forward a tentative outline of the proper regime of gatekeeper liability for securities fraud.


 

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Was the Jury Ever Self-Informing? – Article by Daniel Klerman

From Volume 77, Number 1 (November 2003)
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For nearly two centuries, legal historians have believed that the medieval English jury differed fundamentally from the modern jury. Its members hailed from the immediate vicinity of the dispute and came to trial already informed about the facts. Jurors based their verdicts on information they actively gathered in anticipation of trial or which they learned by living in small, tight-knit communities where rumor, gossip, and local courts kept everyone informed about their neighbors’ affairs. Interested parties might also approach jurors out of court to relate their side of the case. Witness testimony in court was thus unnecessary. The jurors themselves were considered the witnesses – not necessarily eyewitnesses, but witnesses in the sense that they reported facts to the judges. They were self-informing; they “came to court more to speak than to listen.”

The idea of the self-informing jury has provided a powerful explanation for many legal developments. James Bradley Thayer and John Henry Wigmore used it to explain the late development of rules regulating oral evidence at trial. No such rules were necessary in the Middle Ages because witness testimony was rare. For John Langbein, the decline of the self-informing jury in the fifteenth and sixteenth centuries explained the increasing role of justices of the peace in the prosecution of crime. In medieval times, there was no need for the government to marshal evidence against suspected criminals because the jury knew or collected that information on its own. As early modern jurors became more ignorant of the facts, the government turned to justices of the peace to assemble the prosecution case. More recently, Thomas Andrew Green explained the medieval jury’s extensive discretion and power to nullify the law as a consequence of its self-informing character. Because little evidence was presented in court, judges knew almost nothing about the facts of cases and so could not prevent jurors from deciding cases according to their own notions of culpability.


 

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Copyright Law and Free Speech After Eldred v. Ashcroft – Article by Michael D. Birnhack

From Volume 76, Number 6 (September 2003)
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Eldred v. Ashcroft, as decided by the Supreme Court in January 2003, added another chapter regarding the relationship between copyright law and freedom of speech to the judicial “chain novel” that has been in the writing for the past three decades. The Court affirmed the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998 (“CTEA”), which extended the copyright term by twenty years, both for existing works and for new works. As in previous chapters, the Court reached the conclusion that there is no conflict between the two legal fields. It repeated the judicial sound bite that “the Framers intended copyright itself to be the engine of free expression.” Eldred nicely fits the conflict discourse, which is mostly one of denial. But Eldred also included novel and interesting elements that offer a new direction to the conflict discourse, or at least a potential for redirection.

Eldred raises many intriguing copyright law and constitutional law questions. Here, however, I wish to focus on the possible ramifications the case might have on the conflict discourse with respect to its constitutional level. Surprisingly, Eldred is the first facial constitutional challenge to copyright law in 213 years. As copyright law continues to expand into new territories and in unpredictable ways, and as new bills are introduced at a staggering rate to further the scope of the rights of copyright owners, it is crucial that we study the contours of copyright law. This need is especially acute in light of the Court’s comment that “[w]hen, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.”

In this Article, I wish to challenge the constitutional dimension of the judicial rejection of the conflict argument, which concerns the conflict between copyright law and the First Amendment. I will structure the critique along the lines of an important distinction. When we pause and ask what it is that the courts have been denying in rejecting the conflict argument, we see, after close study of over thirty cases that addressed the conflict argument, that, surprisingly, courts reject different things at different points. This leads us to identify two kinds of conflict: one is internal to copyright law, and the other is external to it. These two conflicts derive, respectively, from an internal view of the relationship of copyright law and free speech, and also from an external view.


 

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Detentions, Military Commissions, Terrorism, and Domestic Case Precedent – Article by Carl Tobias

From Volume 76, Number 6 (September 2003)
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Laura Dickinson’s recent article in this journal substantially improves appreciation of how the United States has detained suspects and instituted military commissions as well as of the roles played by the controversial procedure and tribunals when fighting terrorism. She meticulously traces how detentions and the commissions evolved, trenchantly criticizes them, and persuasively shows international tribunals’ comparative advantage. Dickinson accords relevant domestic case precedent a somewhat laconic analysis, however. For example, she briefly mentions separation-of-powers concerns and Supreme Court opinions that detentions and military commissions implicate while rather tersely assessing Ex parte Quirin, the Second World War decision on which President George W. Bush’s Administration has heavily relied to detain suspects, to create the tribunals, and to support numerous antiterrorism initiatives, especially litigation. Dickinson suggests that closer evaluation of these critical rulings is unwarranted because they lack application for her work and others have explored the opinions. Dickinson’s treatment allows many observers, most prominently cabinet members and federal judges, to overstate Quirin and to ignore Youngstown Sheet & Tube Co. v. Sawyer.

Dickinson contributes substantially to the ongoing debate over the use of detentions and military commissions in national emergencies. She illuminates myriad complex phenomena and convincingly demonstrates how international tribunals are preferable. Her recommendation may prove superior in terms of theory, policy, and international law. Nonetheless, the very realpolitik that Dickinson so incisively criticizes, and is so clearly exemplified by the Bush Administration’s war on terrorism, mandates elaboration of the governing United States case law.


 

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The Cost of Older Workers: How the ADEA Has Been Interpreted to Allow Employers to Fire Older Employees Based on Cost Concerns – Article by Lee Franck

From Volume 76, Number 6 (September 2003)
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The Age Discrimination in Employment Act (“ADEA”) was enacted to promote the ability of older workers to compete in today’s marketplace. It recognized a disturbing change in the way that companies were treating older workers. Historically, older workers were regarded as a valuable commodity because of their skill and experience. The advance of the modern age brought about a shift in ideologies in corporate America. Older workers came to be considered a liability in the fast-paced business world. Congress drafted the ADEA to eliminate unfounded stereotypes of older workers as less productive and more expensive to employ. It gave statutory protection against discrimination to anyone over forty years of age.


 

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The Takings Clause As a Comparative Right – Article by John E. Fee

From Volume 76, Number 5 (July 2003)
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The role of the Takings Clause of the Fifth Amendment in requiring compensation for government actions that treat landowners unequally is seldom explored. This is remarkable given that the Supreme Court has said for more than a century that the Takings Clause “prevents the public from loading upon one individual more than his just share of the burdens of government, and says that when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equivalent shall be returned to him.”

One might infer from this description of the Fifth Amendment that the regulatory takings doctrine should have developed as a comparative right (a species of equal protection law)—a right to be treated legally the same as other property owners in a community, or to receive compensation when differential treatment is justified. Indeed, when the Supreme Court first held that the Fourteenth Amendment incorporated the rule that government may not take private property without just compensation, it relied on the Equal Protection Clause, not the Due Process Clause.

The comparative-right basis for the takings doctrine, however, is largely ignored in modern regulatory takings law. Our regulatory takings doctrine today functions more like a substantive due process right. Similar to due process cases prohibiting excessive punitive damages awards, the law of regulatory takings is commonly understood as a defense for individuals against government actions that are extreme and unreasonable as applied to the individual, rather than as a guarantee of equal treatment among members of a community. Whether regulation of one owner’s property has gone “too far” for regulatory takings purposes is determined independently of how the government regulates other owners.


 

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Copyright Law As a Silencing Restriction on Noninfringing Materials: Unveiling the Scope of Copyright’s Diversity Externalities – Article by Guy Pessach

From Volume 76, Number 5 (July 2003)
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The main argument presented in this Article is that the harms and social costs of copyright cannot be summarized just in terms of enclosure and exclusion. Copyright law, I will argue, also has a silencing effect toward noninfringing creative materials of other independent creators and producers.

Recent scholarly work has emphasized copyright’s “dynamic effect,” that is, the ongoing influence of expansive copyright protection toward an enclosure of the creative commons, and diminishment of cultural diversity. On the whole, however, this broad approach regarding the social cost of copyright in terms of diversity has focused only on instances and frameworks of creative activity in which a secondary author wishes to make use of existing copyrighted material, while a copyright owner (often a media conglomerate) imposes obstacles and limitations against such a use.

The argument presented in this Article goes one step further in exploring the nexus of copyright and diversity. As I will show, an expanded copyright regime diminishes diversity in a more intrusive manner. Extensive copyright protection also has a chilling effect on the variety and diversity of creative works that are both noninfringing and not affiliated to copyright portfolios, or to the communicative activity, of commercialized corporate media. This outcome derives from the advantages extensive copyright protection affords to excessive exposure of corporate media’s creative materials, as well as to the economic and cultural dominance of these media products.


 

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