Volume 76, Number 6

December 2001

Federal Common Law, Cooperative Federalism, and the Enforcement of the Telecom Act

Philip J. Weiser

Congress increasingly has enacted cooperative federalism programs to achieve complex regulatory policy objectives. Such programs combine the authority of federal regulators, state regulators, and federal courts in creative and often pathmarking ways, but the failure of these actors to appreciate fully their respective roles threatens to undermine cooperative federalism’s effectiveness. In this Article, Professor Philip Weiser develops a coherent vision of how federal courts should enforce cooperative federalism regulatory programs. In particular, he relates the rise and purpose of cooperative federalism to the federal courts’ increased reluctance to make federal common law under the Erie doctrine and their greater deference to administrative agencies under the Chevron doctrine. Professor Weiser then applies this conception of cooperative federalism to the implementation of the Telecommunications Act of 1996, the most ambitious cooperative federalism venture yet, and shows how federal courts should exercise their authority in coordination with federal and state regulators to advance the Act’s goals.

International Conflicts over Patenting Human DNA Sequences in the United States and the European Union: An Argument for Compulsory Licensing and a Fair-Use Exemption

Donna M. Gitter

The thought of a large biotech company holding an exclusive right to research and manipulate human genetic material provokes many reactions–from moral revulsion to enthusiasm about the possibilities for therapeutic advancement. While most agree that such a right must exist, debate continues over te appropriate extent of its entitlements and preclusive effects. In this Article, Professor Donna Gitter addresses this multidimensional problem of patents on human deoxyribonucleic acid (DNA) sequences in the United States and the European Union. Professor Gitter chronicles not only the development of the laiw in this area, but also the array of policy and moral arguments that proponents and detractors of such patents raise. She emphasizes the specific issue of patents on DNA sequences whose function has not fully been identified, and the chilling effect these patents may have on beneficial research. From this discussion emerges a troubling realization: While the legal framework governing “life patents” may be similar in the United States and the European Union, the public perceptions and attitudes toward them are not. Professor Gitter thus proposes a dual reform: a compulsory licensing regime requiring holders of DNA sequence patents to license them to commercial researchers, in return for a royalty keyed to the financial success of the product that tie licensee develops; and an experimental-use exemption from this regime for government and nonprofit researchers.


Sustaining the Moral Surge

John Sexton

Months have passed, commemorations have been held at ground zero, and Congress has declared September 11 a yearly National Day of Remembrance. Surely it will be another date that will live in infamy; no law is needed to ordain that, and no law could change it. But September 11 was, and should be, something more. And after the devastation is cleared, new buildings raised up, and commerce and finance return–all critical to the prosperity of New York and the nation–the other great test will be whether we sustain the moral power surge which moved across the city and this country in response to the terrorist attack.


A Call for Reform of the Operational Test for Unrelated Commercial Activity in Charities

Jessica Peña, Alexander L.T. Reid

This Note proposes a reform of the operational test for charitable exemption found in § 501 (c) (3) of the Internal Revenue Code. Under current law, the operational test uses a facts-and-circumstances standard to distinguish activity that furthers a charitable purpose from unrelated activity and to determine how much unrelated activity to allow. Due in part to the common law’s expansive interpretation of the charitable purposes enumerated in § 501(c)(3), the operational test permits charities to engage in significant amounts of commercial activity without risking loss of exemption–the broader the definition of a charitable purpose, the more commercial activities may be related to it. Yet as commercial activity by charities increases, so too does the public perception that charities compete unfairly with for-profits and thus do not merit tax-exempt status. The perceived abuse of the charitable tax exemption puts pressure on the courts and the Internal Revenue Service to distort the scope of the current operational test in an effort to reduce commercial activity by charities. The result, a subjective “smell test,” has produced an inconsistent and unprincipled jurisprudence–sometimes even punishing charities for engaging in commercial activity that is related to charitable purposes. Further complicating matters is the Internal Revenue Service’s tendency to allow significant amounts of commercial activity in clear contradiction of operational test jurisprudence. This Note judges the current operational test to be unworkable and proposes a modified test to take its place.

Programmed Privacy Promises: P3P and Web Privacy Law

William McGeveran

A new computer protocol, the Platform for Privacy Preferences (P3P), now allows for the automatic translation of World Wide Web (Web) sites’ privacy policies into an easily understandable form. In this Note, William McGeveran proposes a framework for lawmakers to take advantage of this new tool and respond to the threat to data privacy on the Web without unduly hindering the free flow of information. Like P3P’s strongest supporters, he perceives advantages in a “P3P privacy market” where individuals could use P3P to understand Web site operators’ privacy practices clearly, forcing below-par operators either to strengthen their policies or to offer visitors some benefit in exchange for personal data. While its libertarian proponents view this structure as a substitute for legal regulation, however, McGeveran argues that the regime should be predicated on contract rather than property principles and that law must play an active role in shaping and supervising the resulting market. He concludes by demonstrating how such a framework leaves lawmakers free to make a wide range of normative choices about privacy protection.

The Alternative Dispute Resolution Act of 1998: Implementing a New Paradigm of Justice

Caroline Harris Crowne

The Alternative Dispute Resolution Act of 1998 provides broad authority for federal district courts to develop alternative dispute resolution programs for litigants. In this Note, Caroline Harris Crowne evaluates how such programs can be designed so that they complement adjudication and benefit disputants. She addresses concerns about justice and quality and urges courts to be sensitive to the differences between alternative dispute resolution and adjudication. She concludes by offering suggestions on how alternative dispute resolution administrators in the courts can foster customer service for disputants while maintaining a necessary amount of public accountability.


The Judicial Branch in State Government: Parables of Law, Politics, and Power

The Honorable Christine M. Durham

In this Brennan Lecture, Justice Christine Durham explores the influence of power and politics on the judicial process of state court judges. The federal separation-of-powers doctrine tends to be far more strict than any separation-of-powers concerns found in state constitutions. Thus, unlike the federal courts, which largely are insulated from the political process, state court judges are actively involved in legislative and executive functions. Justice Durham suggests that the political pressure stemming from frequent interbranch activity, as well as the majoritarian pressure stemming from the popular election of most state judges, may influence decisions, often with disturbing results. Justice Durham also considers the effects such pressure can have on the integrity of the decisionmaking process.