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Sailing Toward Safe Harbor Hours: The Constitutionality of Regulating Television Violence
Eric C. Chaffee
abstract
Take Us Back to the Ball Game: The Laws and Policy of Professional Sports Ticket Prices
Nathan R. Scott
abstract
Sexual Harassment: Limiting the Affirmative Defense in the Digital Workplace
Donald P. Harris
Daniel B. Garrie
Matthew J. Armstrong
abstract
Applying 42 U.S.C. § 1981 to Claims of Consumer Discrimination
Abby Morrow Richardson
abstract
A Wolf in Sheep’s Clothing: Gaffney and the Improper Role of Politics in the Districting Process
Robert A. Koch
abstract
Out of Thin Air: Using First Amendment Public Forum Analysis to Redeem American Broadcasting Regulation
Anthony E. Varona
abstract
Race, Media Consolidation, and Online Content: The Lack of Substitutes Available to Media Consumers of Color
Leonard M. Baynes
abstract
Not from Concentrate? Media Regulation at the Turn of the Millennium
March 18–19, 2005
A Tribute To Travis A. Skelton
Wesley E. Stockard
abstract
Finding the Sex in Sexual Harassment: How Title VII and Tort Schemes Miss the Point of Same-Sex Hostile Environment Harassment
Yvonne Zylan
abstract
Biopiracy and Beyond: A Consideration of Socio-Cultural Conflicts with Global Patent Policies
Cynthia M. Ho
abstract
Fear and Loathing: Combating Speculation in Local Communities
Ngai Pindell
abstract
Rethinking Gender Opportunities: Nontraditional Sports Seasons and Local Preferences
Kristen Boike
abstract
Something Must Be Done: An Argument for the Partial Deregulation of Research on Bipolar Disorder and the Implementation of Rolling Informed Consent
JanaLee S. Kraschnewski
abstract
Documenting Discrimination in Voting:
Judicial Findings Under Section 2 of the Voting Rights Act Since 1982
Final Report of the Voting Rights Initiative, University of Michigan Law School
Ellen Katz
with Margaret Aisenbrey
Anna Baldwin
Emma Cheuse
Anna Weisbrodt
abstract
Unconscionable Contracting for Indigent Defense:
Using Contract Theory to Invalidate Conflict of Interest Clauses in Fixed-Fee Contracts
Jacqueline McMurtrie
abstract
Two Spirits, Two Eras, Same Sex:
For a Traditionalist Perspective on Native American Tribal Same-Sex Marriage Policy
Jeffrey S. Jacobi
abstract
How Qui Tam Actions Could Fight Public Corruption
Aaron R. Petty
abstract
Sailing Toward Safe Harbor Hours: The Constitutionality of Regulating Television Violence
Eric C. Chaffee
Because of the recent focus on television violence, it is more a question of “when,” rather than “if,” Congress will take action on this issue. “Safe harbor” regulation, or restricting violent programming to certain hours of the day, is one form of regulation that is recurrently suggested as a means for dealing with the potential ills created by television violence. The possibility of such regulation implicates numerous constitutional issues. This Article addresses whether “safe harbor” regulation of television violence is feasible without violating the First Amendment and other provisions of the Constitution.
Take Us Back to the Ball Game: The Laws and Policy of Professional Sports Ticket Prices
Nathan R. Scott
The prices of professional sports tickets have skyrocketed in recent years, depriving many fans of the time-honored tradition of taking their families out to a ball game. This Article argues that legal reform and political action are appropriate responses to these soaring prices.
First, the Article rebuts the threshold objection that economics alone justify current ticket prices. Professional sports teams reap a windfall from the public through corporate welfare, special-interest legislation, and favorable antitrust and tax laws. This preferential legal treatment undercuts the argument that teams are simply charging, or should charge, what the market will bear. In addition, teams cannot blame ticket prices on high player salaries, because the market for tickets is economically distinct from the market for players.
Next, the Article evaluates four possible legal or political responses to ticket prices: regulating professional sports leagues, eliminating their preferential legal treatment, taking individual teams through eminent domain, and encouraging local team ownership. It concludes that fans will be best able to keep tickets affordable by encouraging local governments, which have spent billions of dollars on stadium construction, to consider buying teams of their own.
Sexual Harassment: Limiting the Affirmative Defense in the Digital Workplace
Donald P. Harris
Daniel B. Garrie
Matthew J. Armstrong
Digital communications sexual harassment is on the rise. Such harassment occurs through sexually offensive and unwarranted e-mails, placing harassing messages on electronic bulletin boards, and other forms of harassment that occur through the Internet. To date, courts have remained silent on the issue of sexual harassment by digital communications. Should this type of harassment be treated any differently than harassment that occurs in the physical space? The somewhat surprising answer is yes.
This Article advocates applying a new judicial framework for addressing digital communications sexual harassment. This new framework accounts for the real-world technology in the digital workplace and the legal framework that courts have constructed in connection with affirmative defenses to harassment. An employer’s ability to monitor and block digital communications and thus prevent sexual harassment is the fundamental difference between digital and physical sexual harassment and the underlying reason for treating them differently and for modifying the affirmative defense. The Article proposes that when an employer fails to utilize available technology to prevent sexual harassment, the affirmative defense should be either modified or altogether unavailable. Adopting this approach, courts would appropriately place an affirmative obligation on employers with blocking and monitoring technology to take reasonable preventative measures to prevent digital workplace harassment.
Applying 42 U.S.C. § 1981 to Claims of Consumer Discrimination
Abby Morrow Richardson
This Note explores several interesting legal questions regarding the proper interpretation of 42 U.S.C. § 1981, which prohibits racial discrimination in contracting, when discrimination arises in the context of a consumer retail contract. The Note further explores how the Fifth Circuit’s and other federal courts’ narrow interpretation of § 1981’s application in a retail setting (which allows plaintiffs to invoke the statute only when they have been prevented from completing their purchases) is contrary to the statute’s express language, congressional intent, and to evolving concepts of contract theory, all of which reflect a commitment to the strict enforcement of civil rights protections. It examines the legislative and interpretive history of 42 U.S.C. § 1981, emphasizing the trend in both Congress and the courts to interpret this and other civil rights laws broadly.
The Note then reviews a selection of federal court interpretations of § 1981’s application to the retail setting, from the very restrictive to those that have found a workable, broader interpretation that encompasses the various stages of the retailer-consumer contractual relationship. It highlights the standard adopted in the Sixth Circuit that finds actionable “markedly hostile” discriminatory conduct affecting the contractual relationship. Finally, the Note argues that, as contract theory itself evolves to encompass a more expansive view of responsibility and liability between contracting parties, so should the non-discrimination statute which governs contractual relations. In conclusion, this Note urges an adoption of the Sixth Circuit’s “markedly hostile” test.
A Wolf in Sheep’s Clothing: Gaffney and the Improper Role of Politics in the Districting Process
Robert A. Koch
The Supreme Court unanimously agrees that excessive partisan gerrymandering is unconstitutional. A plurality of the Court, however, would hold partisan gerrymandering claims to be nonjusticiable due to the lack of a judicially manageable standard. This Note synthesizes the opinions of a majority of the Court in Vieth v. Jubelirer on the precise harms of partisan gerrymandering and argues that excessive partisan gerrymandering unconstitutionally burdens the representational rights of individual voters. This Note proposes a judicially manageable standard to address that representational harm based on the Court’s standard in Shaw v. Reno.
Out of Thin Air: Using First Amendment Public Forum Analysis to Redeem American Broadcasting Regulation
Anthony E. Varona
American television and radio broadcasters are uniquely privileged among Federal Communications Commission (FCC) licensees. Exalted as public trustees by the 1934 Communications Act, broadcasters pay virtually nothing for the use of their channels of public radiofrequency spectrum, unlike many other FCC licensees who have paid billions of dollars for similar digital spectrum. Congress envisioned a social contract of sorts between broadcast licensees and the communities they served. In exchange for their free licenses, broadcast stations were charged with providing a platform for a “free marketplace of ideas” that would cultivate a democratically engaged and enlightened citizenry through the broadcasting of “public interest” programming.
Few, other than the broadcasters themselves, would dispute that this “public trustee” doctrine has been a dismal failure. In exchange for the tens of billions of dollars of advertising revenue generated by their licenses, commercial television and radio broadcasters air very little—and some air none—of the kinds of locally oriented public affairs, political, educational, and cultural programming traditionally considered “public interest&rd quo; fare. Congress and the FCC have failed to correct the mismatch between the proven profit-making power of public trusteeship and its anemic returns for the American people. To the contrary, Congress and the FCC, captured by the broadcast industry they regulate, have continued to subsidize commercial broadcasters constructively by awarding them new lucrative digital channels at no cost to them, while lifting ownership concentration limits and eliminating or failing to enforce the few remaining public interest programming requirements.
This Article begins by surveying the history of the public trustee doctrine, its First Amendment contradictions, and the legislative and regulatory failures and frustrations that have bedeviled the pursuit of a “free marketplace of ideas” on the nation’s airwaves. It then explores the First Amendment’s public forum doctrine as an alternative justification for government regulation of the public spectrum, reasoning in favor of the government’s proactive creation and maintenance of public speech fora. After examining the Internet both as a public forum and as the sort of “free marketplace of ideas” that the broadcast spectrum was expected—but failed—to create, this Article argues that an affirmative public forum doctrine supports a requirement that broadcasters subsidize broadband Internet access in low-income and underserved communities.
Race, Media Consolidation, and Online Content: The Lack of Substitutes Available to Media Consumers of Color
Leonard M. Baynes
In its 2003 media ownership proceedings, the FCC relied on the existence of the Internet to provide justification for radically relaxing the FCC ownership rules. These rules limited the national audience reach of the broadcast licensees and the cross-ownership of different media properties by broadcasters and newspapers. In relaxing these rules, the FCC failed to recognize that a media submarket for African Americans and Latinos/as existed. This separate market is evidenced by the different television viewing habits of African Americans and Latinos/as as compared to Whites and Billboard magazine’s delineation of R&B/urban music radio stations as a separate radio station format. The FCC reliance on the Internet for these communities was misplaced because these communities are plagued by the Digital Divide, whereby African Americans and Latinos/as have lower Internet penetration rates than their White counterparts. The Internet fails to serve these minority submarkets. Access to the Internet at schools and libraries provides second-class access for Internet users of color. People are limited by the hours of operation of the schools and libraries. They are likely to be subjected to the budgetary limitations of the government institution. They may have to wait on long lines to gain access. Over-expansive filters may restrict Internet users from accessing important health information. Once the Internet user of color gains access to the Internet, he will find the web sites of the traditional media may have the same stereotypes and absences that exist on their broadcast channels. For all these reasons, the Internet fails as a substitute available to media consumers of color.
A Tribute To Travis A. Skelton
Wesley E. Stockard
Elizabeth Kübler-Ross, a psychiatrist who spent most of her life studying the effects of death, once wrote, “Mourning is not forgetting . . . it is an undoing. Every minute tie has to be untied and something permanent and valuable recovered and assimilated from the dust.” In its most basic sense, this Journal is about assimilating pieces in the name of progress. It is about the many aspiring law students who devote hours of time to putting out the next issue in a chain of volumes that began long before they arrived, and will continue long after they have left, the halls of Hutchins. It is about bringing together ideas and scholarship, giving them a voice, and hoping that the resulting ripples go out into the world and assist in making change. Travis Skelton had the distinct honor of leading this effort.
Finding the Sex in Sexual Harassment: How Title VII and Tort Schemes Miss the Point of Same-Sex Hostile Environment Harassment
Yvonne Zylan
It has been nearly a quarter century since the United States Supreme Court first recognized the cause of action for a sexually hostile work environment under Title VII of the Civil Rights Act of 1964. In Meritor Savings Bank v. Vinson, the Court essentially adopted the view offered by legal academician Catharine MacKinnon that harassment taking the form of a sexually hostile work environment is a manifestation of gender-based power. In so doing, the Court created a remedy for many aggrieved employees, permitting redress in the federal courts for a problem that makes many workplaces unbearable. At the same time, however, by adopting MacKinnon’s theory of sexual violence, the Court virtually ensured that a different class of plaintiffs—victims of anti-gay hostile work environments—would be denied relief.
While some analysts trace this inequity to a conflicting array of judicial doctrine, this Article claims that its source runs much deeper: to courts’ misguided understanding of the nature of sexual harassment itself. Although much of the history of sexual harassment doctrine indicates courts’ primary concern with determining the motivation behind incidents of harassment, hostile environments that take the form of sexual harassment cannot be explained as the simple expression of either sexual desire or gender-specific hatred. Thus, courts’ reliance upon a binary conception of sexuality results in a fundamentally flawed jurisprudence. The Article concludes by offering an alternative theory of sexual harassment highlighting the independently sexual dimension of the behavior and argues that, because the nature of sexual expression itself is highly ambivalent and fluid, courts are ill-equipped to investigate the motivations underlying workplace interactions that take a sexual form.
Biopiracy and Beyond: A Consideration of Socio-Cultural Conflicts with Global Patent Policies
Cynthia M. Ho
This Article provides a fresh and multi-dimensioned approach to a long-standing claim of biopiracy patents made by developing countries and communities. The basic principles of patent law and policy are first established to provide a foundation from which to evaluate the claim that genetic resources and traditional knowledge from developing countries are being misappropriated in a variety of ways that are loosely referred to as biopiracy. The Article distinguishes rhetoric from reality in examining biopiracy allegations from the perspective of national patent laws, as well as international agreements. In addition, the Article explains the underlying conflicts, misconceptions, and historical biases that have predisposed some to biopiracy claims. Similarly, the Article presents a new perspective on how the present landscape of international agreements, as well as negotiation stances, has failed to lead to satisfactory resolution of biopiracy claims despite years of heated discussion within major international forums, including the World Trade Organization, the United Nations, and the Convention on Biological Diversity.
In addition to explaining the dynamics behind the current stalemate, this Article provides a template for moving forward. As a first step, the Article advocates that the piracy lingo be jettisoned and that substantive discussion instead focus on issues that have mutual appeal to all countries. Drawing upon past success of issue-framing in the context of the access to medicine debate, this Article proposes new foci that nations might universally agree on. For example, this Article suggests a novel linkage between biopiracy patents and more general problems within Western patent law to help focus on issues of interest to all nations. In addition the Article proposes a new internet-based process for promoting meaningful dialogue that will likely be more effective than current proposals because it avoids previous intransigent issues. This final proposal has broad application to many issues at the intersection of patent law and social policy, ranging from the proper scope of patentable subject matter, to the scope of exceptions from patent liability.
Fear and Loathing: Combating Speculation in Local Communities
Ngai Pindell
Local governments commonly respond to economic and social pressures on property by using their legal power to regulate land uses. These local entities enact regulations that limit property development and use to maintain attractive communities and orderly growth. This Article argues that government entities should employ their expansive land use powers to limit investor speculation in local markets by restricting the resale of residential housing for three years. Investor speculation, and the upward pressure it places on housing prices, threatens the availability of affordable housing as well as the development of stable neighborhoods. Government regulation of investor speculation mirrors existing, privately imposed restrictions that prevent individual purchasers from appropriating property value that rightfully belongs to surrounding neighbors. This progressive allocation of property value is supported by earlier urban theorists like Henry George and Ebenezer Howard, and is consistent with modern land use legal decisions and policy.
Rethinking Gender Opportunities: Nontraditional Sports Seasons and Local Preferences
Kristen Boike
In Communities for Equity v. Michigan High School Athletic Association, the Court of Appeals for the Sixth Circuit affirmed a district court decision, holding that the scheduling of high school girls’ sports in “nontraditional” seasons in Michigan violated the Equal Protection Clause. The Supreme Court of the United States, granting certiorari, vacated and remanded this case back to the Sixth Circuit. This Note suggests reasons why the Sixth Circuit and/or the United States Supreme Court should protect the Michigan High School Athletic Association’s (MHSAA) current scheduling of sports seasons. Specifically, using the model provided by Romer v. Evans and Washington v. Seattle School District, MHSAA should be afforded local control over high school sports seasons. This Note also discusses legal and policy implications resulting from MHSAA’s loss of control in this arena and the possible harms associated with this proposed change.
Something Must Be Done: An Argument for the Partial Deregulation of Research on Bipolar Disorder and the Implementation of Rolling Informed Consent
JanaLee S. Kraschnewski
Bipolar disorder (BD) cripples the lives of countless individuals across the globe. The healthcare community has had difficulty securing effective, long-term treatment for this disease. This Note argues that enlarging the pool of possible research subjects through partial deregulation of BD research would facilitate the development of better treatment. This Note further proposes the implementation of a system of rolling informed consent to ensure that actual and full consent is obtained from BD research subjects.
Documenting Discrimination in Voting:
Judicial Findings Under Section 2 of the Voting Rights Act Since 1982
Final Report of the Voting Rights Initiative, University of Michigan Law School
Ellen Katz
with Margaret Aisenbrey
Anna Baldwin
Emma Cheuse
Anna Weisbrodt
The Voting Rights Act of 1965 (“the VRA”) is one of the most remarkable and consequential pieces of congressional legislation ever enacted. It targeted the massive disfranchisement of African-American citizens in numerous Southern states. It imposed measures drastic in scope and extraordinary in effect. The VRA eliminated the use of literacy tests and other “devices” that Southern jurisdictions had long employed to prevent black residents from registering and voting. The VRA imposed on these “covered” jurisdictions onerous obligations to prove to federal officials that proposed changes to their electoral system would not discriminate against minority voters.
Resistance was immediate, but the VRA withstood the chal-lenge. The result was staggering. The VRA ended the long-entrenched and virtually total exclusion of African Americans from political participation in the South. Black voter registration rose and black participation followed such that, by the early 1970s, courts routinely observed that black voters throughout the South were registering and voting without interference. Similar benefits accrued to non-English speaking voters, particularly to Latino voters in the Southwest, after Congress amended the VRA to protect specified language minorities in 1975. This increased participation exposed less blatant inequalities and problems—complex issues such as racial vote dilution, the contours of which courts are still tackling today.
Unconscionable Contracting for Indigent Defense: Using Contract Theory to Invalidate Conflict of Interest Clauses in Fixed-Fee Contracts
Jacqueline McMurtrie
Indigent defense remains in crisis and yet constitutional challenges to promote systemic change have met with mixed success. This Article explores the new strategy of applying contract theory and principles to challenge indigent defense contracts that violate the canons of professional responsibility. This Article begins by discussing the author’s experience working on cases of indigent defendants whose convictions were overturned through the efforts of the Innocence Project Northwest. The erroneous convictions were facilitated by the indigent defense contract in place at the time of the convictions. Pursuant to this contract, the indigent defense contractor agreed to provide representation in all criminal cases in the county for a fixed price, and to hire and pay for conflict counsel out of the lump-sum fee. This Article discusses why such a contract creates multi-faceted conflicts of interest between the contracting attorney, conflict counsel, and their clients. Since these conflicts are too grave to waive through the process of informed consent, the provisions of the contract are unconscionable, and violate the public policy encompassed in the canons of professional responsibility. This Article suggests that bar associations are uniquely situated to use the principles of contract law to challenge indigent defense contracts that violate the rules of ethics by their very terms.
Two Spirits, Two Eras, Same Sex: For a Traditionalist Perspective on Native American Tribal Same-Sex Marriage Policy
Jeffrey S. Jacobi
Two Spirits, Two Eras, Same Sex: For a Traditionalist Perspective on Native American Tribal Same-Sex Marriage Policy Recently, several states amended their constitutions to define marriage as only a union between a man and a woman. Many Native American Indian tribal governments thereafter also adopted laws prohibiting homosexual marriages. However, this new policy conflicts with traditional tribal values. This Note shows that historically many tribes accepted and even honored same-sex unions. This Note proposes that tribes consider their traditions as they existed before European contact, and argues that, for some tribes, same-sex civil unions are a historically and culturally appropriate answer to the modern objections to same-sex marriage.
How Qui Tam Actions Could Fight Public Corruption
Aaron R. Petty
This Note argues that public corruption at the state and local levels is a serious problem throughout the United States. Because public corruption decreases confidence in the democratic system at all levels of government, a strong response is necessary. Due to difficulties inherent in the deterrence, detection, and prosecution of state and local corruption, innovative methods to respond to this problem are needed. The author argues that amending the federal criminal statutes most commonly used to prosecute state and local public corruption, to allow a private citizen to bring a qui tam civil action against the public official for violations of those criminal statutes, would contribute substantially to the deterrence, detection, and prosecution of public corruption.