Volume 72, Number 6

December 1997

Predispute Agreements To Arbitrate Statutory Employment Claims

Samuel Estreicher

Over the last decade, the Supreme Court, through its interpretation of the Federal Arbitration Act of 1925 (FAA), has expanded the role of arbitration in the resolution of legal disputes, including disputes arising under federal and state statutes. Recently, much debate has arisen over the issue of whether the FAA applies to employment contracts, and whether employees can enter into binding predispute agreements to arbitrate statutory employment claims. In Gilmer v. Interstate/Johnson Lane Corp., the Supreme Court held that under the FAA, employees could in fact enter into such predispute agreements. Because the agreement in Gilmer was not part of an employment contract, however, the Supreme Court left open a critical question, namely the scope of the FAA exclusion of employment contracts for certain employees engaged in foreign or interstate commerce. In this Article, Professor Estreicher first addresses the various public policy arguments raised by opponents of predispute agreements to arbitrate statutory employment claims. Addressing each one in turn, he concludes that where certain procedural safeguards are implemented, arbitration is indeed a proper forum for the resolution of statutory employment claims, and that predispute agreements to arbitrate provide valuable benefits for both employers and employees. Turning to the issue left open by the Court in Gilmer, Professor Estreicher explores the confusion surrounding the scope of the FAA exclusion of employment contracts, which in large part stems from an uncertain legislative history, and suggests that, given recent Court decisions and the policies underlying them, a narrow interpretation of the exclusion by the Supreme Court is probable. Professor Estreicher concludes by stressing that a proper arbitration system can advance the public policies contained in federal and state employment statutes.


The Bad Man and the Good Lawyer: A Centennial Essay on Holmes’s The Path of the Law

David Luban

This Essay explores the connections between Justice Holmes’s ideas about law practice and his jurisprudence. What we discover, or so I will argue, is an unfamiliar Holmes–a Holmes whose arguments differ in important respects from the standard positivist and realist ideas that later generations read back into The Path of the Law. I want to suggest that reading Path as proto-Hart, proto-Frank, or proto-Cohen distorts a good deal of what Holmes actually says. In my view, Holmes’s penchant for radical rhetoric leads him to overstate the conclusions that he actually means to establish and lands him in fallacies that I explore in some detail. Holmes had a more moralistic picture of lawyers and clients than his own tough talk suggests, and I will suggest that this accounts for the fallacies. In short, reading Path as an implicit definition of the good lawyer helps us distinguish the sound from the specious in the essay’s jurisprudence.


Suppress or Suspend: New York’s Exclusionary Rule in School Disciplinary Proceedings

Mai Linh Spencer

The federal exclusionary rule excludes evidence obtained in violation of a person’s Fourth Amendment rights from a criminal prosecution against that person. Many states also have state law-based versions of the rule, barring evidence obtained in violation of their constitution’s search and seizure counterparts to the Fourth Amendment. In a scenario where a student brings a gun to school and it is discovered in an unfounded, random search, the exclusionary rule precludes the gun’s use in a juvenile prosecution against the student. This Note addresses the question of whether the gun should also be suppressed in a resulting school suspension or expulsion proceeding against that same student. It considers not when a student’s constitutional right against search and seizure is violated, but rather what the remedy is for an acknowledged violation. Specifically, it argues that New York courts should apply the state constitution-based exclusionary rule to school disciplinary proceedings and suggests that other states should do the same with their own exclusionary rules.

Exploring Collateral Consequences: Koon v. United States, Third Party Harm, and Departures from Federal Sentencing Guidelines

Gregory N. Racz

Ever since Congress passed the Sentencing Reform Act of 1984 (Act), judges have used their powers to correct the perceived unjust effects of the Federal Sentencing Guidelines (Guidelines). One device wielded by the bench is the departure. Written into the Guidelines themselves, the departure gives district court judges discretion to increase or decrease a prescribed sentence for factors enumerated in the Guidelines as well as for factors that, in the view of the sentencing judge, were not fully considered by the authors of the Guidelines. The Supreme Court, in its recent decision in Koon v. United States, affirmed the enduring role departures play in sentencing jurisprudence. Increasing scholarly and judicial attention has focused on departures based on the effects on third parties such as family members. In contrast, judges and scholars have paid less attention to departures based on the effects on third parties such as employees.

Against this background, this Note will explore two questions. The first is whether the third party effects doctrine extends out of the home and into the workplace. The second question this Note addresses involves an unresolved issue in departure jurisprudence identified in Koon. Assuming departures are permissible, when are they justified? At present, no explicit framework exists to help courts to resolve this dilemma.

Changing the Rules: Arguing Against Retroactive Application of Deportation Statutes

Anjali Parekh Prakash

By failing to prescribe its temporal reach, section 440(d) of the Anti-Terrorism Effective Death Penalty Act (AEDPA) has created confusion for the courts. Does the provision apply to individuals who committed a crime, making them subject to deportation before AEDPA was passed? To individuals who were convicted prior to AEDPA? To those in deportation proceedings when AEDPA was passed? To those who had already applied for section 212(c) waivers when AEDPA was passed?

Using section 440(d) as a case study to analyze these retroactivity issues, this Note opposes the Attorney General’s interpretation and instead proposes an antiretroactivity presumption applicable not only to the present confusion, but also to ambiguities in future deportation-relief restrictions, such as the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), passed by Congress on September 30, 1996, which further alters relief to permanent residents and raises its own retroactivity issues. This antiretroactivity presumption springs from, among other sources, the reliance interests of immigrants–these interests arise out of the legal duty imposed on courts and defense counsel to advise noncitizens about the immigration consequences of being convicted of a crime. In addition to these reliance interests, due process considerations also weigh in favor of applying an antiretroactivity principle to deportation-relief restrictions.

Copyright Protection, Privacy Rights, and the Fair Use Doctrine: The Post-Salinger Decade Reconsidered

Benjamin Ely Marks

This Note seeks to clarify the privacy protecting role of copyright that largely has been ignored in judicial decisions, if not in judicial decisionmaking, since the last revision of the federal copyright scheme. Thus, the Note reexamines recent jurisprudential analysis of fair use with regard to the use of unpublished materials, focusing in particular on those materials never intended for publication. It then proposes a modest but useful reform: judicial recognition of an explicit, privacy-based exception to the fair use doctrine.

Others have suggested greater recognition of privacy interests, but this Note’s proposal differs in several important respects. First, this Note explicitly distinguishes between unpublished materials intended for publication and unpublished materials not intended for public dissemination, because privacy interests are implicated only by the latter category. Accordingly, this Note argues first that the extra protection of an exception to the fair use doctrine should only extend to an author who has acted in accordance with the privacy interests she asserts with respect to the materials allegedly infringed. Second, this Note contends that only the author of unpublished materials, not copyright owners other than the author, should be able to object to the use of the unpublished materials on privacy grounds. Third, this Note suggests that the author should only be able to object during her lifetime, because her privacy interests diminish after death. These limiting principles help ensure a proper balance, on a broad scale, between protecting the interests of authors in the fruits of their intellectual labor and the interest of the public in ultimately claiming free access to materials essential to the development of society; and, on a narrow scale, between academic freedom and respect for personal privacy.


The California Death Penalty Scheme: Requiem for Furman

Steven F. Shatz, Nina Rivkind

In 1972, in Furman v. Georgia, the United States Supreme Court struck down the death penalty schemes of Georgia and other states as unconstitutional because they created too great a risk of arbitrary death sentences. The decision was based in part on the Justices’ belief that relatively few (15-20%) of the number of death-eligible murderers were being sentenced to death and that there was no meaningful basis for distinguishing the cases in which the death penalty was imposed. In subsequent cases, the Court interpreted Furman to require that the states, by statute, genuinely narrow the death-eligible class. Professors Shatz and Rivkind argue that, in disregard of Furman, California has adopted a death penalty scheme which defines death-eligibility so broadly that it creates a greater risk of arbitrary death sentences than the pre-Furman death penalty schemes. They base their argument on an analysis of California statutory and decisional law and on a study of more than 400 appealed first degree murder cases. They conclude that unless the Supreme Court finds the California scheme unconstitutional, it has effectively abandoned Furman.