Volume 76, Number 3

June 2001

Democracy, Taxes, and Wealth

James R. Repetti

Congress adopted an estate tax in 1916 in response to concerns about the harmful social effects of wealth concentration. Recently, proposals have been put forward to abolish the estate tax. Professor Repetti explores traditional justifications for the estate tax and reviews political and economic research on the effects of wealth concentration. He determines that wealth concentration is detrimental to the nation’s long-term economic growth because it creates educational disadvantages for the poor and sociopolitical malaise. It also harms the democratic process because it gives the affluent a disproportionally large political voice. He then evaluates the current estate tax and concludes that it provides the important benefits of decreasing dynastic wealth concentration and raising revenues. Moreover, empirical studies suggest that the tax does not discourage savings.

Toward a Functional Defense of Political Party Autonomy

Nathaniel Persily

In its recent decision in California Democratic Party v. Jones, the Supreme Court struck down California’s “blanket primary,” which allowed any voter to vote in any race in any party’s primary. The decision has propelled questions of primary voter qualifications to the forefront of constitutional analysis of political parties. This Article analyzes the case law on state regulation of primary elections and argues in favor of constitutional protection for party organizational autonomy in determining qualifications for primary voters. Legal scholars have been almost unanimous in their condemnation of the Court’s decision in Jones. This Article takes a different view. Agreeing with the critics that traditional First Amendment rights of expression and association largely are inapplicable to party primaries, this Article advocates an approach that pays less attention to parties’ status as state actors or private associations and more attention to the functions they play in American democracy. In particular, the Article argues that autonomous parties are a necessary check against one party’s manipulation of the electoral process to its advantage and an indispensable means of aggregating interest groups into the American political system. Recognizing that in the context of primary elections, today’s major political parties are, nevertheless, state actors, the Article concedes that explicit constitutional guarantees preventing discrimination in the right to vote ought to apply to major-party primaries.

Rules Lawyers Play By

Richard W. Painter

In this Article, Richard Painter uses contractarian economic theory to demonstrate general trends in professional responsibility rules, including gradual migration away from standards and toward defined rules and increased use of default rules and opt-in rules. Many rules, however, remain broad standards, and immutable rules remain the principal mechanism for regulating conduct that affects third parties. This Article discusses how additional default rules and opt-in rules, if carefully chosen with protection of third parties in mind, could enrich professional responsibility codes enormously. This Article also proposes that the American Bar Association more clearly define opt-out mechanisms in existing default rules and in some cases make them easier to use earlier in representation of clients. In other cases, aspirational rules, including ethical considerations similar to those in the Model Code, could reinvigorate reputational enforcement of ethics norms, particularly if coupled with disclosure of information about lawyer compliance. Finally, this Article proposes that law firms be encouraged or perhaps required to adopt their own codes of professional responsibility. Law firm codes would fill gaps in the law, address agency problems within law firms, and enhance the quality of feedback that lawyers give to each other about ethics within firms.


Bankruptcy Court Jurisdiction and Agency Action: Resolving the NextWave of Conflict

Rafael Ignacio Pardo

In this Comment, Rafael Pardo criticizes a recent pair of decisions by the United States Court of Appeals for the Second Circuit, FCC v. NextWave Personal Communications, Inc. (In re NextWave Personal Communications, Inc.) and In re FCC. Those cases held that a bankruptcy court lacks jurisdiction to determine whether the Federal Communications Commission is stayed from revoking a debtor’s licenses. Pardo argues that the court of appeals interpreted the bankruptcy court’s jurisdiction too narrowly because it failed to distinguish properly between an agency’s action as a creditor and as a regulator. He concludes that bankruptcy courts and courts of appeals have concurrent jurisdiction to make automatic stay determinations regarding FCC licenses and that, for reasons of institutional competence, courts of appeals should defer to this exercise of jurisdiction by bankruptcy courts.


The Role of Gender and Relationship in Reforming the Rockefeller Drug Laws

Eda Katharine Tinto

In recent years, New York’s drug sentencing laws–the Rockefeller Drug Laws–have come under attack due to their failure to reduce drug use despite the growing prison population. The political and academic communities now are debating how best to reform these laws. In this Note, Eda Tinto highlights the absence of a much needed discussion regarding the sentencing of certain women drug offenders. Qualitative studies have demonstrated that an underlying context of many women’s drug crimes is their involvement in an intimate relationship with a partner who uses or sells drugs. Tinto argues that these women drug offenders are often less blameworthy than other offenders and that therefore the sentences for their crimes are often unjust. Tinto concludes that the context of an intimate relationship should be acknowledged in sentencing and proposes reforms of the Rockefeller Drug Laws.

The Benefits of Applying Issue Preclusion to Interlocutory Judgments in Cases That Settle

Seth Nesin

While all courts require that a judgment must be final in order to be issue preclusive, courts have diverged over what constitutes the appropriate level of finality. Courts confusingly have cited judicial economy as a reason both to extend issue preclusion to interlocutory judgments and not to extend issue preclusion to interlocutory judgments. In this Note, Seth Nesin argues that judicial economy will be enhanced by applying issue preclusion to interlocutory judgments in cases that later settle. Nesin reaches this conclusion by applying two behavioral models, and finding that each suggests that making such judgments preclusive will cause settlements to be made earlier and more frequently. Nesin then considers the impact of such a rule on judicial integrity and on fairness to litigants, and concludes that these factors do not suggest that courts should make all interlocutory judgments nonpreclusive.