Volume 73, Number 6

December 1998

A New Options Theory for Risk Multipliers of Attorney’s Fees in Federal Civil Rights Litigation

Peter H. Huang

Given the importance of private enforcement of federal civil rights laws, Congress and the courts have attempted to encourage plaintiffs’ attorneys to accept meritorious civil rights cases through fee shifting and risk multipliers. Recently, however, the Supreme Court has essentially prohibited the use of risk multipliers, thus undercompensating attorneys for the risk of losing civil rights actions and discouraging the filing of such cases. In this Article, Professor Huang develops a new options-based theory of calculating attorney’s fees. Professor Huang argues that a lawsuit consists of a sequence of options to continue with the case rather than a once-and-for-all irreversible commitment thus allowing an attorney to assess the plaintiffs probability of prevailing at trial at different stages in a lawsuit. His proposal is for courts to recognize this option feature of lawsuits and adjust the risk multiplier accordingly. Consequently, the size of the risk multiplier would more accurately reflect the risk of losing, thus providing attorneys with better incentives to bring meritorious civil rights actions. In developing his theory, Professor Huang surveys the history and caselaw on risk multipliers, applies a simple options approach to lawsuits, and discusses the effect of an options-based approach on attorneys’ incentives to bring and settle civil rights actions. A mathematical Appendix formally models Professor Huang’s options-based approach.

Against Free-Form Formalism

David M. Golove

In this Article, Professor Golove responds to Professor Tribe on the latter’s own terms by offering a serious textual and structural analysis of the Treaty Clause that supports its nonexclusivity. Professor Golove shows that the constitutional text is in fact indeterminate and that, contrary to Professor Tribe’s claims, textualism cannot render a singularly persuasive construction of the Treaty Clause. By analyzing each of Professor Tribe’s arguments, Professor Golove shows that equally strong formal arguments can be constructed in favor of the nonexclusive reading. Professor Golove thus seeks to demonstrate by illustration that textualism is just as open to manipulation as the interpretive methodologies that Professor Tribe decries and, given the pervasive ambiguities in the text, is generally incapable of yielding unique, objective resolutions to constitutional disputes, even those over concrete provisions of the text. Only by systematically ignoring these equally plausible formalist counterarguments was Professor Tribe able to reach his favored reading of the Treaty Clause. In the final analysis, Professor Tribe’s article reflects free-formism in its most paradoxical form: free-form formalism.


You’ve Got Mail! (And the Government Knows It): Applying the Fourth Amendment to Workplace E-Mail Monitoring

Scott A. Sundstrom

Whether, and to what extent, the Fourth Amendment might limit e-mail monitoring in government workplaces is an open question. Currently there is no caselaw directly on point. This Note argues that the Fourth Amendment should limit the government’s ability to monitor the e-mail of its employees. Part I reviews basic Fourth Amendment principles and then briefly examines alternate sources of privacy protections. That Part will show that these legal remedies are inadequate to protect government employees from intrusive e-mail monitoring in the workplace. Part II of this Note argues that the Fourth Amendment, which has been held to protect individuals from a variety of unreasonable government intrusions, could also apply to searches and seizures of e-mail in general, and workplace e-mail in particular. Part III then proposes an appropriate Fourth Amendment standard for government workplace e-mail monitoring. Beginning with the Supreme Court decision in O’Connor v. Ortega , Part III applies the federal case law involving workplace searches of government employees to the specific context of e-mail monitoring. This Note concludes that workplace e-mail monitoring is unreasonable where there is no special need justifying the types of suspicionless searches monitoring represents. Absent a special need, individualized suspicion should be necessary in order to justify monitoring employees’ e-mail.

Keep Off the Grass: Prohibiting Nonemployee Union Access Without Discriminating

Deborah L. Stein

This Note will examine what the NLRB and the courts have determined constitutes “discrimination” and the rationales behind their conclusions. It will argue for a narrow view of “discrimination” and, in keeping with the Court’s assertion of employer property rights, advocate that nonemployee union protest activities be viewed differently than nonemployee union organizational activities.

“To Learn and Make Respectable Hereafter”: The Litchfield Law School in Cultural Context

Andrew M. Siegel

Part I of this Note details the historical moment in which the Law School emerged, sketching both the political and social structure of colonial Connecticut and the multifaceted crisis facing that state’s leaders in the late eighteenth and early nineteenth centuries. Part II describes the response of Litchfield’s elite to this unfolding crisis, focusing in detail on the innovative institutions they founded and nurtured during this period, including the Law School and the Litchfield Female Academy. Part III then attempts to place the Law School in historical and cultural context, providing, sequentially, an exploration of the social vision propounded in its classroom, a brief examination of the school’s legacy, and an overview of other contemporaneous developments in American legal education. In comparing Litchfield with these other early endeavors, Part III also offers some observations on the reasons for Judge Reeve’s relative success.


In Memory of Elizabeth Theresa McNamee

Joy L. DeVito, John W. McGuinness, Shabnam Noghrey, Sevan Ogulluk

The editors of the New York University Law Review respectfully dedicate this issue to the memory of Elizabeth Theresa McNamee. Elizabeth was a third-year student and an Associate Editor on the Law Review. The following is an Essay written by four of her closest friends in law school, Joy L DeVito, John W. McGuinness, Shabnam Noghrey, and Sevan Ogulluk. Their Essay commemorates Elizabeth’s life and describes what made her special.