Category: Notes

Room Enough for the Do-Gooders: Corporate Social Accountability and the Sherman Act – Note by Sarah Rackoff

From Volume 80, Number 5 (July 2007)
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Congress passed the Sherman Act in 1890 to combat the monopolies, trusts, and pooling arrangements that arose as businesses expanded in the wake of the Industrial Revolution. The purpose of the Act was to prohibit the price gouging effects that resulted from the cartel-like behavior of rapidly growing businesses, best represented by the controlling – and later, declared illegal – position of the Standard Oil Company. The nation resented growing corporations that “[s]eemingly at will…could raise prices to consumers, cut the wages of labor, favor some customers over others, and control the supply of basic commodities.” President Cleveland emphasized the need for legislation to protect average consumers stating, “Corporations, which should be the carefully restrained creatures of the law and the servants of the people, are fast becoming the people’s masters.” Legislators hoped that the Sherman Act would be a solution to these ills and that consumers, and later workers, would be protected from the power being amassed by corporations.

These Populist sentiments resonate over a hundred years later as activists, nongovernmental organizations (“NGOs”), and multinational corporations (“MNCs”) seek solutions to similar backlashes against the activities of behemoth companies. President Cleveland’s concerns are discernible as consumers demand greater accountability and protection from major corporations. The demands for reform, however, now come directly from consumers and NGOs, rather than legislators. Moreover, the sought after regulations to limit corporate excesses are being self-imposed in the wake of such pressure. The private sector is developing creative solutions to address the abuses that resulted from the rapid globalization of commerce and production.

 

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A Political Process Theory of Judicial Review Under the Religion Clauses – Note by Carlton Morse

From Volume 80, Number 4 (May 2007)
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Few areas of constitutional law remain more captive to the subjective whims of judicial preference than the First Amendment’s religion clauses. This condition results in part from the Court’s notorious inability to agree on a uniform standard of review under either the Free Exercise or Establishment Clauses. This instability matters because, as Justice Scalia notes, “[w]hat distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle.” As concerns the religion clauses, a stabilizing principle may be found in political process theory, a set of ideas that, while generally familiar to constitutional theory, have yet to be comprehensively applied to either free exercise or establishment controversies.

Process theory embraces “[t]he notion that courts should exercise judicial review almost exclusively to protect democracy and guarantee the fairness of legal processes.” Conversely, process theory rejects the notion that courts should enforce “substantive” policy preferences that cannot be justified on these “process-oriented” grounds, as they are more properly left to the vicissitudes of the political branches. Borrowing heavily from the literature of civic republicanism, this Note argues that process theory should be broadened to account for the unique contributions of religion to the political process. This Note further argues that, using process theory, courts should interpret the First Amendment’s religion clauses as process-oriented safeguards for the political contributions of religious faith and institutions. Finally, courts should reject a jurisprudence that employs the religion clauses as vehicles for the enforcement of substantive conceptions of free exercise and disestablishment.

 

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Abolishing the Pharmacist’s Veto: An Argument in Support of a Wrongful Conception Cause of Action Against Pharmacists Whose to Provide Emergency Contraception – Note by Heather A. Weisser

From Volume 80, Number 4 (May 2007)
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On August 24, 2006, after years of scientific research and politically charged debate, the U.S. Food and Drug Administration (“FDA”) approved an application for over-the-counter (“OTC”) status for Plan B, a type of emergency contraception (“EC”) previously available only by prescription. This FDA decision came more than two years after the agency’s much criticized denial of Plan B’s OTC application in 2004. The primary criticism of the 2004 denial was that it appeared reproductive politics were interfering in the FDA’s usual scientific process. Finally science won out, however, and in August 2006, the FDA announced that Plan B’s application for OTC status would be approved for “consumers 18 years and older.” The drug will remain prescription-only for girls under eighteen years of age.

While the FDA’s approval of Plan B’s OTC application will ease access to the drug for women eighteen and older, a significant and pervasive obstacle remains for women of all ages. Although a prescription will no longer be required for those women to obtain Plan B, the medication will be available only from behind a pharmacy counter, leaving the decision of whether to dispense the drug in the hands of the pharmacist on duty. This obstacle may seem innocuous, but the reality is far different.

 

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The Researcher’s Second Laboratory: Protecting Our Children from Social Surveys in Public Schools in Light of Fields v. Palmdale School District – Note by Jesse Fu

From Volume 80, Number 3 (March 2007)
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Vanessa Shetler was shocked to learn what her eight-year-old son went through one seemingly ordinary day in his third-grade class. After coming home from school, Ms. Shetler’s son informed his mother that instead of spending the day learning math and reading, he was asked by the school how frequently he thought about having sex or touching other people’s “private parts.” Had these questions been presented as part of a routine sex and health education program for elementary school students, perhaps Ms. Shetler would not have been so upset. These questions, however, were not a part of such a program. Instead, the school, in collaboration with a mental health counselor, distributed a survey containing numerous sexually charged questions to some of its students. The survey asked students how often they thought about washing themselves because they felt dirty inside or if they ever had “sex feelings” in their bodies, for example. What is more, it asked if they ever thought that they touched their own “private parts” too much and if they ever could not stop thinking about sex.

Ms. Shetler was just one out of many parents who became outraged because of the survey and believed that the questions were “putting poison into kids’ minds” because it discussed sex and other subjects that third graders should not be learning about. The survey was not given solely to third graders, however – first and fifth graders were also asked to answer these same questions. The school claimed that the survey was designed to establish a baseline for measuring trauma in children, for the purpose of ascertaining any impediments to the students’ abilities to absorb material in school. Unpersuaded by the school’s rationale, parents claimed that the survey was inappropriate and, in response, filed suit against the school district.

 

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The Presses Won’t Stop Just Yet: Shaping Student Speech Rights in the Wake of Hazelwood’s Application to Colleges – Note by Jeff Sklar

From Volume 80, Number 3 (March 2007)
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As word of the decision in Hosty v. Carter spread in the summer of 2005, many college journalists were outraged. To them, it was the end of free speech as they knew it. In Hosty, the en banc Seventh Circuit became the first court to apply in a college the framework of the Supreme Court’s Hazelwood case, which for nearly twenty years had given high school administrators wide latitude to restrict the content of student-run newspapers. As a result, many college journalists believed they were powerless against university presidents and deans, who they believed could charge into their newsrooms, lock up their computers, and even stop their presses – all with the blessing of the First Amendment.

In truth, the outrage did not begin with Hosty. It began seventeen years earlier with the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier. In Hazelwood, the Supreme Court held that in high schools, where school-sponsored student speech does not occur in a public forum, the school may regulate the content of that speech for reasons that are “reasonably related” to any of a range of “legitimate pedagogical concerns.” Thus, many people believed Hazelwood gave high school administrators near free reign to stop students from participating in one of our nation’s most sacred traditions – a free and independent press. And in Hazelwood, the Supreme Court explicitly left open the possibility that the case’s analytical framework might be applied to student publications in colleges too. But until June 2005, no court had dared to do so. Hosty was the first.

 

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An Unworkable Rule of Law: The ADA, Education, and Sovereign Immunity; An Argument for Overruling Seminole Tribe of Florida v. Florida Consistent with Stare Decisis – Note by Christopher Cowan

From Volume 80, Number 2 (January 2007)
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On July 26, 2005, President George W. Bush released a proclamation celebrating the fifteenth anniversary of the Americans with Disabilities Act (“ADA”), signed into law by the former President Bush. In the proclamation, President Bush “call[ed] on all Americans…to fulfill the promise of the ADA [and] to give all people the opportunity to live with dignity, work productively, and achieve their dreams.” At the time of its signing there were more than forty-three million disabled persons in the United States; this number has grown to more than forty-nine million. The purpose of the ADA was to eliminate discrimination against this growing population in a number of areas by providing a “legal recourse to redress such discrimination.”

While the overall success of the ADA is debatable, it is clear that private enforcement of the ADA has been under attack for the last ten years – at least when the defendant is a sovereign state. Since the controversial Seminole Tribe of Florida v. Florida decision in 1996 – holding that Congress can abrogate a state’s sovereign immunity only through a valid exercise of Section 5 of the Fourteenth Amendment – the survival of a private cause of action against a state entity under the ADA has been questionable. In the last five years, the Court has attempted to provide an answer. In Board of Trustees of the University of Alabama v. Garrett, the Court held that Title I of the ADA, which prohibits disability discrimination in the context of employment, was not a valid exercise of Section 5 and therefore could not abrogate state immunity. Although the Garrett decision was limited to Title I, many of the lower courts assumed that the sovereign immunity bar would extend to Title II, which regulates access to public services and programs. Then, in Tennessee v. Lane, the Court held that Title II’s application to the fundamental right of access to the courts was a valid exercise of Section 5, and the immunity bar was tentatively lifted.

 

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The Calabasas Smoking Ban: A Local Ordinance Points the Way for the Future of Environmental Tobacco Smoke Regulation – Note by Jordan Raphael

From Volume 80, Number 2 (January 2007)
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Smokers who plan to smoke in public probably should avoid doing so in Calabasas, California. On March 17, 2006, the city’s smoking ban – the most restrictive in the nation – went into effect, prohibiting smoking virtually anywhere that another person could be exposed to secondhand smoke. The designated nonsmoking areas include bars, restaurants, stadiums, parks, and even streets and sidewalks. The Calabasas ordinance is enforceable by the city attorney or, alternatively, by “private enforcers,” private individuals filing civil suits on behalf of themselves or the general public. To avoid the various penalties that the ordinance imposes, smokers must seek out special smokers’ outposts or light up at least twenty feet away from nonsmokers or others who might potentially be offended by secondhand smoke.

Over the past thirty years, smoking-regulation advocates have fought to curb secondhand smoke, or environmental tobacco smoke (“ETS”), in a variety of settings where it imposes health risks on nonsmokers. Early efforts targeted ETS in workplaces and airplanes, where it was difficult – and in some cases, impossible – for nonsmokers to avoid exposure. Buoyed by victories in these settings and a concomitant shift in public norms regarding the propriety of smoking, advocates agitated for and won smoking restrictions in bars, restaurants, and other public locations. Smoking-regulation forces were especially successful at the local level, pushing through 3000 county and city anti-smoking laws. In California, which serves as a national test bed for anti-smoking legislation, local ETS ordinances tend to be stricter and more comprehensive than those imposed at the state level. The Calabasas ordinance follows this paradigm; by outlawing smoking in public outdoor areas, it goes further than any state law – or any local law – and perhaps even beyond what is justified by the scientific findings on ETS. The ordinance is the logical next step in the progression of ETS legislation, and it demonstrates how strongly rooted the notion that nonsmokers have a right to be free of secondhand smoke has become in our culture. The Calabasas secondhand smoke ordinance, while applicable to only a 13.2-square-mile patch of the San Fernando Valley, is in fact an important model for other states, counties, and cities that would like to enact smoking bans or to strengthen those bans that they currently have.

 

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To Agree, or Not to Agree: That Is the Question when Evaluating the Best Mode Preferences of Joint Inventors After Pannu v. Iolab Corp. – Note by Melissa N. McDonough

From Volume 80, Number 1 (November 2006)
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One of the many requirements for patentability is that the inventor must disclose the “best mode” of the invention. This requirement is set out in the first paragraph of 35 U.S.C. § 112, which states that the patent’s specification “shall set forth the best mode contemplated by the inventor of carrying out his invention.” Based on the statutory language, the test for whether the best mode has been properly disclosed has a subjective element – whether or not the inventor believed that there was a best way to practice the invention at the time the patent application was filed. If the inventor believed that a certain method of practicing the invention was better than other methods, the inventor had to disclose that mode. If the inventor did not have a preferred method of practicing the invention, then there was no best mode to be disclosed.

At first, the test seems fairly straightforward. An inventor either had a preferred mode at the time of filing, or the inventor did not. The test becomes far more complicated, however, when the involvement of more than one inventor requires the consideration of multiple opinions. For example, what happens if there are two inventors and they disagree as to what is the best mode? Whose view controls and which mode or modes must be disclosed? In a case of joint inventorship where each inventor works on different parts of an invention, what happens when an inventor who did not work on a certain part prefers a best mode for that part, and that preference is not shared by the person who actually invented it? If a joint inventor is accidentally omitted from a patent, and the omitted inventor had a best mode preference that was not disclosed at the time of the application’s filing, should the patent be invalidated for failure to disclose that mode when the omitted inventor is added to the patent later? These are all questions that are critical to best mode analysis, as patent infringers currently are able to use the best mode requirement as a weapon to invalidate patents in litigation. And in order to answer these questions effectively, it is increasingly important to understand how the ease of establishing joint inventorship under the current statutory framework affects best mode analysis. Unfortunately, the Federal Circuit neglected to consider the impact of liberalized joint inventorship principles in Pannu v. Iolab Corp., where, in a footnote in dicta near the end of the opinion, the court appeared to set a standard that required any joint inventor who has a best mode preference for any claim to disclose it.

 

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