Volume 74, Number 1

April 1999

Screws, Koon, and Routine Aberrations: The Use of Fictional Narratives in Federal Police Brutality Prosecutions

David Dante Troutt

Despite periodic outcries in response to particular outrages, it remains notoriously difficult to prosecute police brutality. In this form-shattering Article, Professor Troutt attributes much of this difficulty to the overwhelming power of the stories mainstream American culture tells about the encounters leading to police violence. In this piece, Professor Troutt lays bare these authority narratives–particularly their racialized dimension–and demonstrates how they have been used to defeat, if not silence, the counternarratives related by victims and their representatives.

Professor Troutt focuses on the limited, though important, role that fictional counterstories can have in challenging the epistemological apparatus by which police brutality is supported. To illustrate this point, he offers a fictionalized narration of the events leading up to one of the most significant police brutality prosecutions of this century, Screws v. United States. Using his story as a starting point, Professor Troutt moves on to two broader discussions: First, he compares his account with the dominant narratives of the Screws case, adopted either explicitly or implicitly by almost all of the legal and jurisprudential actors who participated in that case. Second, he examines the theoretical justifications many of his colleagues offer for the use of storytelling in legal writing, highlighting the ways in which his narrative illustrates the possibilities for such storytelling and identifying several additional benefits not emphasized in the existing literature. He concludes with a discussion of the most famous police brutality case of recent times, the Rodney King beating case, Koon v. United States. In his discussion of Koon, Professor Troutt demonstrates the persistence of prevailing cultural narratives of police brutality cases, in part by drawing attention to the similarities in the ways in which the Screws and Koon cases were portrayed by the government and perceived by the public. In the end, through both argument and demonstration, Professor Troutt makes a strong case for the importance of literary fiction as a tool for challenging the core of dominant beliefs about race, crime, and social hierarchy implicit in reigning authority narratives.

A Positive Theory of Chapter 11

Kevin A. Kordana, Eric A. Posner

This Article is the first comprehensive analysis of the complicated voting rules of Chapter 11. Under these rules, only the debtor may propose a plan of reorganization during a lengthy exclusivity period, creditors are placed in classes which vote separately on the plan, voting is based on a bicameral system with both majority and supermajority requirements, and a plan may be confirmed only if, among other things, every nonconsenting creditor receives at least as much as it would have if the firm were liquidated under Chapter 7. Chapter 11’s rules are idiosyncratic and difficult to understand, yet the literature on these rules is sparse. Several scholars have argued that it should be replaced with a system that avoids voting and relies on a more market-driven valuation process. To date however, no one has tried to understand how all of the voting rules fit together. In this article, Professors Kordana and Posner expand on existing bargaining models to consider bargaining with multiple creditors, paying particular attention to difficulties posed by imperfect information, and analyze all of the major voting rules in Chapter 11. The authors utilize a positive analysis to achieve an increased understanding of the existing bankruptcy system and its costs and benefits, an essential prerequisite to reform of Chapter 11.

A Matter of Judgment, Not a Matter of Opinion

Edward A. Hartnett

In this Article, Professor Hartnett enters the longstanding debate over whether elected officials are obliged to follow the Supreme Court’s interpretation of the Constitution. Responding to a call by Professors Larry Alexander and Frederick Shauer for complete deference to judicial opinions–a stance echoed by a broad range of scholars, now including former antideference advocate Edwin Meese–Professor Hartnett attempts to identify serious flaws in this position. He maintains that because the scope of tie judicial role is narrowly limited to deciding cases and controversies, and not “pronouncing the law,” there is a profound distinction between judgments and opinions. Therefore, we should not confuse deference with obedience and grant the Supreme Court a monopoly on constitutional interpretation.


The Fiduciary Responsibilities of Investment Bankers in Change-of-Control Transactions: In re Daisy Systems Corp.

M. Breen Haire

This Comment examines the mischief that the Daisy ruling could make. Though advisors such as attorneys and auditors have previously been held to be fiduciaries of their clients, the Daisy court’s broad application of these duties to investment bankers poses unique problems. The first Part begins with a brief survey of pre-Daisy cases dealing with the responsibilities owed by bankers to their clients, and then turns to Daisy itself. The second Part discusses the Daisy court’s broad conception of the role of bankers in change-of-control transactions. The final Part is a policy and doctrinal critique of the Daisy rule, focusing especially on the undesirable incentives provided to bankers as a result of the holding. The Comment concludes that the court’s decision in Daisy promulgates a liability regime desirable neither as a matter of corporate governance nor as a shareholderprotection device.


Protecting Students Against Peer Sexual Harassment: Congress’s Constitutional Powers to Pass Title IX

Melanie Hochberg

The Note begins with an overview of peer sexual harassment in schools, emphasizing its frequency and severe effects, and an explanation of why schools should adopt antiharassment policies. It continues with a discussion of the judicial and legislative history of Title IX. Part II provides a brief explanation of Congress’s powers under the Spending Clause and describes the Fifth and Eleventh Circuits’ analysis of Title IX’s scope. Next, it considers the breadth of Title IX by using traditional tools of statutory interpretation and focuses on a Seventh Circuit opinion in which the court found that Title IX reaches peer sexual harassment. Part II continues with a discussion of sovereign immunity and the Fourteenth Amendment. This Part concludes by describing the analysis of courts that have found that Title IX is within Congress’s Fourteenth Amendment power and abrogates sovereign immunity. By establishing that Congress can use multiple powers to pass legislation and by analogizing Title IX to other laws, Part II argues that Title IX was passed pursuant to both the Spending Clause and the Fourteenth Amendment.


Administrative Law and the Legacy of Henry J. Friendly

The Honorable A. Raymond Randolph

Winston Churchill once told a friend, “I never say, ‘It gives me great pleasure,’ to speak to any audience because there are only a few activities from which I derive intense pleasure and speaking is not one of them.” I do not share Churchill’s sentiments today. I gladly confess-it does indeed give me great pleasure to speak to you about Judge Henry J. Friendly and administrative law. Judge Friendly remains my judicial hero. When Ed Huddleson suggested this topic, I could hardly resist. The subject he proposed is fitting. For I know personally that Judge Friendly was very much an admirer of Judge Leventhal’s work on the D.C. Circuit.