Volume 75, Number 4

October 2000

Prosecutorial Discretion and Prosecution Guidelines: A Case Study in Controlling Federalization

Michael A. Simons

In this Article Michael Simons examines the ways in which the federalization of crime can be controlled. Simons argues that prosecutorial discretion is the most important variable in the federalization process and that controlling prosecutorial discretion is the key to controlling federalization. He presents the Child Support Recovery Act as a model for how prosecution guidelines for federal criminal statutes can provide such control Federalization of criminal child support enforcement has been successful because federal prosecutors have exercised discretion in a manner consistent with the concerns expressed by the bench and the academy about federalization. Simons concludes by exploring how such guidelines would prevent the implementation of other criminal statutes from usurping state authority, overwhelming the federal courts, and treating individual defendants unfairly.

Identifying Monopolists’ Illegal Conduct Under the Sherman Act

Thomas A. Piraino, Jr.

Upon surveying antitrust enforcement pursuant to Section 2 of the Sherman Act, Thomas Piraino concludes that the standard for determining violations has become muddled and confusing. He proposes a new standard to assist courts in distinguishing beneficial from harmful conduct; one that focuses on the monopolist’s substantive competitive purpose. Under that standard, conduct should be illegal under Section 2 if it makes no economic sense other than as a means of perpetuating or extending monopoly power. Piraino illustrates the benefits of this proposed standard by applying it to the Microsoft litigation.


Avoiding the Race to Res Judicata: Federal Antisuit Injunctions of Competing State Class Actions

Andrew S. Weinstein

Through their redundancy and the “reverse auction” dynamic they engender, competing class actions compromise the efficiency and fairness goals that justify the class action device and impose unnecessary costs on class members, defendants, the courts, and society at large. Yet, the Anti-Injunction Act, federalism, and comity concerns limit the ability of federal courts to enjoin competing state actions. Despite such limitations, some courts have utilized the “in aid of jurisdiction” exception to the Anti-Injunction Act to enjoin state actions that threaten to interfere substantially with the federal litigation. In this Note, Andrew Weinstein argues that building on these recent cases, federal courts should read the “in aid of jurisdiction” exception more expansively to permit injunctions in order to protect both the litigants and a court’s jurisdiction. Reconciling the merits of an injunction with the Anti-Injunction Act and related interests in federalism and comity, Weinstein devises four factors that federal courts should consider in determining whether to enjoin a competing state action.

The Devil Is in the Details: Neutral, Generally Applicable Laws and Exceptions from Smith

Carol M. Kaplan

In the wake of the Supreme Court’s landmark decision in Employment Division v. Smith, which overturned settled principles of free exercise jurisprudence, confusion abounds in the lower courts as to the reach and limitations of the Court’s new test for determining the validity of free exercise claims. In this Note, Carol Kaplan examines the doctrinal reasoning and the substantive outcomes of lower court cases. She finds that while some of the inconsistencies are attributable to an absence of details in Smith, which sketched the bare contours of a new test without stepping through its application, other decisions resist the implications of Smith, and carve out such wide exceptions from its rule as to render it almost redundant. To address this problem, Kaplan first discusses the policy and jurisprudential goals that underlie the Smith decision. She then proposes a doctrinal model for the Smith test that furthers those goals by articulating te steps of the neutral, generally applicable analysis and delineating the boundaries of the exceptions to Smith. Kaplan concludes that Smith serves a bifurcated function that, on the one hand, seeks to ensure parity in the civil obligations of religious and secular citizens, while on the other, offers a tool for rooting out instances of legislative discrimination against religion and mandates that judges apply strict scrutiny to decisions by unelected administrative officials that impact upon the daily lives of all citizens.

A Nonpublic Forum or a Brutal Bureaucracy? Advocates’ Claims of Access to Welfare Center Waiting Rooms

Sheri M. Danz

In this Note, Sheri Danz evaluates the impact of the evolution of the public forum doctrine on advocates’ claims of access to welfare centers. Welfare agencies often prohibit legal advocates from associating with and educating welfare applicants on welfare center grounds. Recently, courts have applied the public forum doctrine to uphold welfare agency restrictions on advocacy against First Amendment challenges by advocates. Danz argues that despite the increasingly formalistic and deferential nature of the Supreme Court’s public forum decisions, reviewing courts should not uphold welfare agency policies that prohibit advocacy in welfare center waiting rooms. She first examines the use of bureaucratic disentitlement practices by welfare agencies to deny applicants their statutory rights and deprive them of much-needed benefits. Danz argues that these practices invoke a core concern of the First Amendment-to protect the right of citizens to check governmental abuse. Next, she explores changes in the public forum doctrine and assesses their impact on advocates’ claims of access to welfare center waiting rooms. Finally, Danz identifies three grounds under the modern public forum doctrine that should lead a reviewing court to overturn prohibitions on advocacy at welfare centers: Restrictions on advocacy in welfare center waiting rooms lack the compelling interest required for restrictions in designated public fora, many prohibitions on advocacy reflect viewpoint-discriminatory motives, and courts that view restrictions as a component of bureaucratic disentitlement may find that restrictions on advocacy fail reasonably to promote legitimate governmental goals.

“Start Spreading the News”: Why Republising Material from “Disreputable” News Reports Must Be Constitutionally Protected

Keith C. Buell

While the common law of libel holds each republisher of false and defamatory statements equally as liable as the original author, many courts have followed the Second Circuit’s 1977 decision in Edwards v. National Audubon Society in recognizing a “neutral-reportage” privilege to protect the republication in neutral news media of potentially libelous statements made by reputable figures. In this Note, Keith Buell argues that the Edwards framework has become outdated in an age in which unsubstantiated and potentially false charges made by disreputable figures, publications, and Web sites play a significant role in the public forum. After surveying a number of recent events in which information from “disreputable” sources was widely available and influenced public debate, Buell revisits the Edwards test and argues for a revision of the neutral-reportage privilege that both protects the rights and reputations of defamed individuals and promotes the search for truth and the public’s right to be know about the statements and beliefs that shape public policy.