Volume 73, Number 4

October 1998

Reviving Hugo Black? The Court’s “Jot for Jot” Account of Substantive Due Process

Tony M. Massaro

In Graham v. Connor, the United States Supreme Court held that the Fourth Amendment effectively preempts any substantive due process claims that law enforcement officers used excessive force in the course of an arrest. Graham‘s disarmingly simple rationale was that an explicit textual provision trumps a more general constitutional provision. Professor Massaro argues that this rationale, as subsequently invoked by the Supreme Court and expansively applied by the lower courts in First, Fourth, Fifth, and Eighth Amendment cases, may ultimately have a pervasive impact on substantive due process. At the very least, the logic of Graham requires that substantive due process be confined to its current doctrinal limits. Carried to its furthest extreme, Graham requires overruling the Court’s substantive due process “unenumerated rights” caselaw altogether. The author argues that Graham is an analytical and doctrinal oddity, inconsistent with well-accepted and regularly enforced principles of constitutional interpretation, that should be overruled rather than used to revive Hugo Black’s “jot for jot” account of substantive due process.

Does the Constitution Require that We Kill the Competitive Goose? Pricing Local Phone Services to Rivals

William J. Baumol, Thomas W. Merrill

This Article concludes a series by these authors and Professors J. Gregory Sidak and Daniel F. Spulber, published last year in this journal. Here, Professors Baumol and Merrill address the issues surrounding the pricing of local phone services to long distance rivals, clarifying their points of agreement and disagreement with Sidak and Spulber. In their previous articles, Sidak and Spulber argued that the movement toward competition in local telephone service should be accompanied by substantial compensation to existing local telephone carriers, a view that Baumol and Merrill do not share. Rather, they note three points of disagreement between Sidak and Spulber and themselves. First, they maintain that Sidak and Spulber use an incorrect formula to determine whether the transition from regulated monopoly to competition requires compensation. Second, they argue that neither the Compensation Clause nor the regulatory contract requires compensation to take place ex ante. Finally, they do not believe that the magnitude of fixed and common costs will be significant in local telephony.


Capacity and Respect: A Perspective on the Historic Role of the State Courts in the Federal System

The Honorable Ellen A. Peters

William J. Brennan, Jr. Lecture

Twenty years ago, Justice William J. Brennan sounded a clarion call to lawyers and judges not to overlook the capacity of state law, especially state constitutional law, to assist in the pursuit of justice for all. Today, the judges and justices of state courts have taken that message to heart by undertaking innovative measures to protect individual rights through state constitutions and through independent interpretations of the Federal Constitution. Despite this emerging trend, litigators, law reviews, and legal scholars have continued to focus on the federal system. In this Brennan Lecture, Senior Judge Ellen A. Peters of the Supreme Court of Connecticut responds to this not-so-benign neglect, observing that state courts determine the totality of rights of the vast majority of litigants, draw on a broad reservoir of common law principles and remedies, and play an integral role in maintaining our federalist system. Developing this last point, Judge Peters examines tie history of state courts in the federal system the extent to which state courts may invoke neutral procedural and jurisdictional rules in the face of arguably different federal mandates, and the implications for the role of the states of recent developments in United States Supreme Court jurisprudence.


Banking on TDRs: The Government’s Role as Banker of Transferable Development Rights

Sarah J. Stevenson

This Note examines government operated TDR banks and their capacity to overcome obstacles hindering otherwise successful TDR programs. Many commentators have addressed TDR banks in the context of TDR programs in general; this Note provides the first comprehensive analysis of TDR banks, examining the legitimacy of the banks themselves and, ultimately, their role in successful TDR programs. As the number of localities turning to TDR programs and banks increases, it is likely that challenges to their use will also increase. It is hoped that this Note will prove useful to localities as they establish their own TDR banks, and that the analysis contained in Part III will help them avoid legal and financial difficulties that may interfere with the effective preservation of valuable public goods.

Charter Schools, Equal Protection, and the New School Reform Movement

Kevin S. Huffman

The sudden influx of charter school legislation in the public school landscape and limited state oversight of charter school administration foreshadow further legal challenges. This Note will examine potential federal and state equal protection challenges to charter schools. The Note then suggests both legislative safeguards and individual school designs that may insulate charter schools from such legal challenges while helping to ensure that these schools serve as part of a fair and effective school reform movement.

The Uneasy Doctrinal Compromise of the Misappropriation Theory of Insider Trading Liability

M. Breen Haire

This Note examines the nature of the doctrinal compromise that the misappropriation theory represents. It focuses on the uneasy relationship among the three doctrinal models and argues that, in fact, the misappropriation theory marks a fundamental departure from the Supreme Court’s more sensible fiduciary duty analysis, and differs in no meaningful way from an equal access regime of insider trading liability. Since the wrongful activity to which the misappropriation theory attaches liability is so distantly related to the securities trading at issue, any claim that it retains the fiduciary duty framework is simply implausible. Like the equal access model, the theory stretches applicable statutory provisions beyond recognition and cannot be reconciled with the Supreme Court’s past interpretation of these provisions.

Now Sixteen Could Get You Life: Stautory Rape, Meaningful Consent, and the Implications for Federal Sentence Enhancement

Lewis Bossing

Part I of this Note will look at the “crime of violence” definition used in various federal sentence enhancement statutes and at the two approaches the federal courts have taken to deciding whether statutory rape convictions constitute “crimes of violence.” Part II will deconstruct the term “crime of violence” in this context by examining how law and society have come to understand the “violence” of sexual assault and how conceptions of adolescents’ ability to consent to a variety of social interactions have changed. Part III will develop a model for courts to use in identifying adolescent “consent” and apply this model to the facts of some of the cases treating this issue. This Note will argue that statutory rape should not be considered a per se “crime of violence.” Rather, in fairness to defendants facing enhanced sentences, and in recognition of the sexual autonomy of adolescents, courts should evaluate the presence or absence of meaningful consent when making many “crime of violence” determinations in statutory rape cases.


The Proper Role for Collateral Attack in Class Actions: A Reply to Allen, Miller, and Morrison

Marcel Kahan, Linda Silberman

Although Professors Kahan and Silberman would applaud a narrowing of the collateral attack remedy created by Matsushita II, as suggested by Miller and by Morrison, they argue that the interpretations offered by those two commentators are inconsistent with what the decision actually says and with its doctrinal rationale. The Ninth Circuit’s reliance on Phillips Petroleum v. Shutts offers no support for a distinction between inadequate representation due to structural deficiencies and inadequacy for other reasons. Moreover, the limiting interpretations offered by Miller and by Morrison would still permit collateral attack in a broad array of cases. In this rejoinder, the authors also respond to particular criticisms from Morrison and Allen, and conclude by noting the unanimity among all of tie commentators that broad collateral attack on class actions is undesirable.


The Inadequate Search for “Adequacy” in Class Actions: A Reply to Professors Kahan and Silberman

Alan B. Morrison

Although Matsushita II can be read in a way that might lead to some difficulties, Professor Morrison insists that its result is plainly correct and its basic message—that federal courts should look with considerable skepticism on state court class action settlements that release federal claims which state courts are forbidden to adjudicate—is a sound one, properly applied to the facts of that case. Matsushita II is a narrow case that would not and should not, lead to the broad-scale collateral attack predicted by Professors Kahan and Silberman. Given the practicalities of litigation (including the statute of limitations for securities cases and the substantial risks of sideline sitting), the opportunities for collateral attack are quite limited and the possibility of abuses very small. At the same time, Kahan and Silberman undervalue adequacy of representation, which is an essential element of due process that must exist to bind persons not parties to a lawsuit. Their proposed solution would prevent meaningful federal review and create practical problems without effectively addressing the problems of forum shopping and plaintiff shopping. The holding of Matsushita II, in contrast would encourage settlement of such actions in a single proceeding in a federal court that finally resolves the dispute.

Full Faith and Credit to Settlements in Overlapping Class Actions: A Reply to Professors Kahan and Silberman

Geoffrey Miller

Professor Miller argues that there is a compelling case for a narrow, reading of the Ninth Circuit’s remand decision in Epstein v. MCA, Inc. (Matsushita II), such that the holding is neither as far-reaching nor as nefarious as Professors Kahan and Silberman suggest. In light of the extraordinary facts under which the litigation arose (and the court’s own limiting construction), Matsushita II should not be interpreted as opening up all class actions to collateral attack in a subsequent forum. Rather, the holding requires that, in order for collateral attack to be permissible. Class counsel in the initial forum must have been disabled from litigating the basis of the claim in the second forum and other indicia that class counsel did not fairly and adequately represent class members must be present. With this narrow interpretation, and existing procedures for avoiding interjurisdictional conflict, Matsushita II can be defended as a reasonable balance of tile costs of collateral attack and the benefits of deterring questionable settlements.

Finality of Judgments in Class Actions: A Comment on Epstein v. MCA, Inc.

William T. Allen

In this Response, Professor Allen contends that in arguing that plaintiffs in state court proceedings are unable to fairly and effectively bargain for the release of exclusively federal claims, the court in Matsushita II reached a judgment that is inconsistent with established concepts of finality of judgments, with design of an effective class action mechanism, and with the policies and precedents of full faith and credit. Although the centrality of the federalism idea has waxed and waned, the Supreme Court has generally encouraged respect by the lower federal courts of the processes and judgments of state courts. The existing system of decentralized state and federal courts allowed for the development of the Delaware Court of Chancery as a de facto specialized court of fiduciary and business law, which has been a positive force in the economy. The Matsushita II court, by contrast, does not accord respect to state court determinations of adequacy under Rule 23 and thus potentially reinvents the problem of inefficiency and second-guessing that is solved by the rule of finality and recognition of judgments. Commentators favoring Matsushita II‘s disregard for state court judgments erroneously believe that state court judges possess less integrity than their federal counterparts. A litigant is entitled to only a conscientious judicial determination of the issues according to law in a proceeding that meets constitutional minimums—a task that state courts are ably equipped to handle and that federal courts should not lightly disturb.