Volume 33 Number 4 -- June 2000

TABLE OF CONTENTS

ARTICLE

“IF IT AIN’T BROKE, DON’T FIX IT”: PREMARITAL AGREEMENTS AND SPOUSAL SUPPORT WAIVERS IN CALIFORNIA

by Charlotte K. Goldberg

Professor Charlotte K. Goldberg discusses whether California should change current law which prohibits spousal support waivers in premarital agreements. The Article highlights the Pendleton v. Fireman case, which is presently before the California Supreme Court. The court of appeal in Pendleton advocated removing the prohibition. The Article argues that the issue of spousal support should remain open in order to remedy the unforeseen economic inequities that can result at divorce. The author discusses whether “substantive unconscionability” could be an alternative to prevent possible economic inequities if a spouse waives spousal support. Professor Goldberg concludes by recommending the present California prohibition on spousal support waivers be retained.

SYMPOSIUM ON NEW DIRECTIONS IN FEDERALISM

INTRODUCTION

by Alan J. Heinrich

THE HYPOCRISY OF ALDEN V. MAINE: JUDICIAL REVIEW, SOVEREIGN IMMUNITY AND THE REHNQUIST COURT

by Erwin Chemerinsky

Professor Erwin Chemerinsky examines how recent Supreme Court sovereign immunity decisions have extended the protection of state governments’ rights at the expense of individuals’ rights by granting state governments far greater immunity from suit. Professor Chemerinsky argues that the decisions cannot be understood as a product of the Court’s interpretation of the text or history of the Constitution and that the Court disregards the principles of constitutional interpretation that it repeatedly has professed. Instead, the decisions only can be understood as a value choice by the Court to favor state governments over individuals. The Court, however, does not defend this value choice. Professor Chemerinsky concludes by arguing that the Court has made the wrong value choice because the constitutional requirements of both the supremacy of federal law and of due process of law warrant favoring individual rights over state sovereign immunity.

EXPRESSIVISM IN FEDERALISM: A NEW DEFENSE OF THE ANTICOMMANDEERING RULE?

by Adam B. Cox

In this Article, Mr. Adam Cox argues that, despite all the criticism surrounding the Supreme Court’s anti-commandeering jurisprudence, the anti-commandeering rule can be defended by looking beyond the effect such a rule has on protecting states’ regulatory powers. By looking at the expressive character of the rule, Mr. Cox argues that the rule serves to maintain the public’s perception that the states continue to serve as political counterweights to the federal government. He maintains that the rule’s role is particularly persuasive when viewed in light of the exceptions the court has used when the federal government has effectively commandeered a state’s political branches. Despite these exceptions, however, Mr. Cox argues that the anti-commandeering rule protects the states from appearing to be mere puppets of the federal government.

PRIVATE REMEDIES FOR PUBLIC WRONGS UNDER SECTION 5

by Evan H. Caminker

Rather than directly regulating state action, the Violence Against Women Act (VAWA) regulates private conduct. In particular, VAWA provides victims of gender-motivated violence with a civil cause of action against individual actors. Last month, the Supreme Court in United States v. Morrison invalidated this civil cause of action as exceeding Congress’s legislative authority. Professor Evan H. Caminker examines the novel question of whether a private remedy under VAWA is a permissible exercise of Congress’s Section 5 power to enforce the Fourteenth Amendment. Professor Caminker concludes such a remedy is permissible based on his analysis of the Fourteenth Amendment’s language and structure, Supreme Court precedent construing the scope of Congress’s Section 5 enforcement power, and federalism principles.

ACCOMMODATION BY DECLARATION

by Melvyn R. Durchslag

Professor Melvyn R. Durchslag discusses current Eleventh Amendment doctrine. His Article outlines arguments for limiting congressional enforcement powers against the states while leaving the scope of the Eleventh Amendment’s substantive powers untouched and explains why these arguments are unpersuasive. He explains that accommodation of state autonomy and federal authority can be better accomplished by focusing the Eleventh Amendment inquiry on judicial remedies. Professor Durchslag suggests that by concentrating on the intrusiveness of the remedy, rather than the status of the parties, such a focus might introduce a perspective that courts and law professors often overlook.

ECONOMIC IMPLICATIONS OF STATE SOVEREIGN IMMUNITY FROM INFRINGEMENT OF FEDERAL INTELLECTUAL PROPERTY RIGHTS

by Peter S. Menell

In the aftermath of the Supreme Court’s decisions constraining Congress’s ability to abrogate state sovereign immunity, Professor Peter S. Menell examines the propensity of states and state actors to infringe federal intellectual property rights, the viability of alternative means of protecting federal intellectual property rights, and potential implications of the Supreme Court’s decisions for international intellectual property diplomacy. He concludes that although state sovereign immunity for violations of federal intellectual property rights is unlikely to impair the rights of intellectual property owners because of a broad array of legal, market, social, and political restraints upon states and state actors, such immunity could violate international treaty obligations and complicate foreign diplomacy. These latter concerns potentially provide an alternative basis for congressional abrogation of state sovereign immunity for infringement of federal intellectual property rights.

FROM PROPERTY TO CONTRACT: THE ELEVENTH AMENDMENT AND UNIVERSITY-PRIVATE SECTOR INTELLECTUAL PROPERTY RELATIONSHIPS

by Robert G. Bone

Professor Robert Bone presents the conflicts that may arise between the use of intellectual property (IP) by state universities afforded sovereign immunity and the rights of IP owners as protected by various state and federal IP statutes. He analyzes several contexts that manifest such conflicts and the advantages and shortcomings of several alternative remedies for holders of IP rights seeking to avoid the potential “loss” of their rights when dealing with state universities. Professor Bone posits that the reality of transactions between state universities and private parties undermines the concern for the wholesale infringement of IP rights by the former. However, such interactions may lead to the realization of certain incentives, surrounding the concern of early disclosure, that may result in the deprival of IP benefits to society. Finally, Professor Bone maintains that while the abrogation of sovereign immunity by Congress is desirable within the IP context, a complete understanding of the interaction between industry and universities should inform any resulting legislation.

ALDEN V. MAINE AND THE WEB OF ENVIRONMENTAL LAW

by William D. Araiza

Professor William D. Araiza examines the limitations imposed by Alden v. Maine on private party lawsuits in state court and its impact on environmental law. He suggests that while Alden is another step in the current Court’s movement toward stronger state immunity, Alden’s limitations may not be extraordinary but will probably impact state compliance with federal environmental law in more than trivial ways. Professor Araiza concludes that legislative responses may be required to more appropriately balance state immunity and federal law.

JUDICIAL V. CONGRESSIONAL FEDERALISM: THE IMPLICATIONS OF THE NEW FEDERALISM DECISIONS ON MASS TORT CASES AND OTHER COMPLEX LITIGATION

by Georgene Vairo

Despite the recent Supreme Court decisions bolstering federalism, Congress is trying to oust state courts of their jurisdiction over state claim based class actions. In this Article, Professor Georgene Vairo discusses Congress’s specific attempts to pass bills that would channel all mass tort and class action cases into federal court, even though plaintiff’s may rely solely on state law to raise a claim. Despite her belief that federal courts should play a continuing and preeminent role in adjudicating mass tort and class action claims, Professor Vairo argues that the states should not be completely stripped of the opportunity to hear such claims. As she discusses Congress’s “stripping” jurisdictional bills, Professor Vairo highlights how such bills undermine federalism principles, not only under recent Supreme Court jurisprudence, but also under traditional notions of federalism and comity.

FEDERALISM: THE NEXT GENERATION

by Richard E. Levy

Professor Richard E. Levy explores the implications of the Supreme Court’s new federalism for congressional authority under the Reconstruction Amendments and the Spending Clause. He begins with the premise that these sources of federal authority have taken on increased importance as a result of the Court’s recent decisions imposing substantive and sovereignty-based limitation on the commerce power. Especially with respect to federal remedies against states, which as a result of recent sovereign immunity decisions can no longer be supported under the commerce power, courts are increasingly confronted with questions about the scope of these other federal powers. Based on developments to date, Professor Levy concludes that the Reconstruction Amendments do not provide an attractive basis for broad federal regulation of states because the Court has imposed a restrictive “ congruence and proportionality” requirement that limits remedial legislation to core constitutional rights. But unless the Supreme Court substantially alters its spending power jurisprudence, conditional spending may be used to accomplish the same objectives. Such measures are likely to withstand a constitutional challenge because Congress may pursue any purpose related to the “general welfare” and the scrutiny of the relation between the spending conditions and statutory purposes is very deferential. Professor Levy nonetheless observes that even if the Court does not restrict the scope of the spending power, the new federalism has already enhanced the role of federalism concerns in the political process.

“AVAILABLE STATE REMEDIES” AND THE FOURTEENTH AMENDMENT: COMMENTS ON FLORIDA PREPAID V. COLLEGE SAVINGS BANK

by Michael Wells

Professor Michael Wells comments on the Supreme Court’s holding in Florida Prepaid v. College Savings Bank. Professor Wells argues that Florida Prepaid departs significantly from established law, for the rule has been that the Constitution is violated when the state official acts, no matter what state remedies may be available. He concludes that in order for the Court to appreciate the implications of its holdings, the Court must cabin the principle it has unleashed or repudiate Florida Prepaid’s version of the available state remedies argument.

THE ELEVENTH AMENDMENT CASES: GOING “TOO FAR” WITH JUDICIAL NEOFEDERALISM

by James G. Wilson

In this Article, Professor James G. Wilson critically discusses the Supreme Court’s “neofederalist” Eleventh Amendment jurisprudence following Seminole Tribe v. Florida in light of contemporary constitutional doctrine and commentator’s such as Akhil Amar. Concluding that the Court construes the Eleventh Amendment too broadly, the author discusses some of the deleterious effects of such a construction. Specifically, how the Court’s doctrine will limit individual rights.

NOTE AND COMMENTS

PARENTAL RESPONSIBILITY LAWS: LET THE PUNISHMENT FIT THE CRIME

by Pamela K. Graham

Parental responsibility laws, holding parents liable for the delinquent acts of their children, are certainly in the spotlight in the aftermath of the Columbine High School incident and other recent school shootings. While juvenile crime rates have declined in the past few years, public fear and attention to the impact of delinquency have not. As a result, in the past three years, at least fifteen states have enacted or amended parental responsibility laws. The federal government is also considering a provision to make parents criminally responsible for providing children access to guns. This Comment discusses whether the legislative finger-pointing at parents is part of the solution to the juvenile crime problem. The author discusses ways for such laws to be properly implemented and enforced. The author suggests that only then can these laws become an effective part of the answer for which society is searching.

“DEIFIC DECREE”: THE SHORT, HAPPY LIFE OF A PSEUDO-DOCTRINE

by Christopher Hawthorne

The “deific decree” exception to the M’Naghten doctrine declares that defendants who delusively believe that God has commanded their crimes are not guilty by reason of insanity. This Comment reviews deific decree from its origins in Judge Benjamin Cardozo’s hypothetical in People v. Schmidt, to its birth as a rule in two Washington State cases, State v. Crenshaw and State v. Cameron. The author concludes that deific decree is a pseudo-doctrine: that is, a rule created without the benefit of facts, a circumstance which, in this case, is at least partly attributable to Cardozo’s oracular rhetoric. This Comment further analyzes the pragmatic consequences of deific decree and concludes that there is no benefit in retaining such an exception.

ILLEGAL GRATUITIES IN AMERICAN POLITICS: LEARNING LESSONS FROM THE SUN-DIAMOND CASE

by Steven M. Levin

Bribery and illegal gratuities are pervasive features of the modern American political system and are a constant source of public consternation. In 1999, the United States Supreme Court had the opportunity to examine the propriety of giving gratuities to a public official without receiving an official act from the official in return. Writing for a unanimous Court, Justice Scalia ruled in United States v. Sun-Diamond Growers that under the illegal gratuities statute, 18 U.S.C. 201(c), government prosecutors must prove a direct nexus between a thing of value conferred upon a public official and a specific “official act” that the official performed “for or because of” the thing given. This Note will demonstrate that while a direct nexus between a gift and an official act may not be necessary to convict the giver or receiver of an illegal gratuity, a gift nonetheless will influence the public official in the official’s duties, thereby tainting the legislative process. To remedy this problem, the author recommends either changing the political system to limit gift-giving opportunities or strengthening the illegal gratuities statute itself to hold public officials and the individuals and corporations who give them gratuities accountable for their actions.

AFTER BOSTON MEDICAL CENTER: WHY TEACHING ASSISTANTS SHOULD HAVE THE RIGHT TO BARGAIN COLLECTIVELY

by Bernhard Wolfgang Rohrbacher

For the last twenty-five years, the National Labor Relations Board has denied student teaching assistants (TAs) at private universities the right to bargain collectively because TAs are primarily students. However, last year, the NLRB granted another class of student employees— medical housestaff—bargaining rights because they provide compensated services. This Comment argues that similarly, the NLRB should grant TAs these same rights. Special attention is given to a pair of recent California Public Employment Relations Board decisions granting TAs at public universities bargaining rights because the value of their services to the university outweighs the value of these services to the TAs. Finally, this Comment argues that TA bargaining is not incompatible with the interest in academic freedom and labor peace.