Protected by Association? The Supreme Court’s Incomplete Approach to Defining the Scope of the Third-Party Retaliation Doctrine

Jessica K. Fink

Volume 63, Issue 2, 521-566

For decades, courts have struggled with how to treat claims of “third-party retaliation”—situations where one employee engages in some protected activity for purposes of Title VII but where the employer retaliates not against that employee, but rather against one of her coworkers—her spouse, or sibling, or mere workplace acquaintance. With its January 2011 decision in Thompson v. North American Stainless, LP, the U.S. Supreme Court finally has weighed in on this issue, deeming employees protected against third-party retaliation under Title VII.

This Article stands as one of the first in-depth examinations of Thompson and its potential impact on both employers and employees. While this Article approves of the Supreme Court’s decision to deem third-party retaliation claims viable under Title VII, this Article proposes a different framework for analyzing these claims than that applied by the Supreme Court in Thompson. Specifically, this Article argues that courts should apply jurisprudence from negligent infliction of emotional distress cases to conduct a more structured analysis of third-party retaliation claims. In addition, this Article argues that courts should define the class of plaintiffs who can assert third-party retaliation claims by requiring that only individuals who have engaged in some protected activity can sue. Other employees affected by employer retaliation—those who receive adverse treatment from their employer, but who did not themselves engage in any protected activity—should not be permitted to bring third-party retaliation claims. In articulating this framework, this Article seeks to strike a balance between deterring employers from engaging in retaliatory behavior and avoiding the negative consequences that could result from failing to place reasonable limits on the third-party retaliation doctrine.

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Note – Playing Hot Potato in the Market: The Ninth Circuit’s Better Approach to Calculating Loss for Securities Fraud Sentencing

Erica Connolly

Volume 63, Issue 2, 567-594

In United States v. Berger, the Court of Appeals for the Ninth Circuit departed from the Second and Fifth Circuits regarding the standard required to determine loss for securities fraud under the Federal Sentencing Guidelines. Unlike its sister circuits, the Ninth Circuit held that the Supreme Court’s reasoning in Dura Pharmaceuticals, Inc. v. Broudo for loss causation in civil securities fraud actions did not apply to the criminal sentencing context. Instead, the Ninth Circuit endorsed price inflation, which was rejected in Dura Pharmaceuticals, as a method of determining loss under the Guidelines. This Note examines the circuits’ decisions in light of the crime and punishment of securities fraud and concludes that the Ninth Circuit’s reasoning better accords with the culpability of securities fraud offenders.

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Note – Why Can’t We Be “Friends”? A Call for a Less Stringent Policy for Judges Using Online Social Networking

Brian Hull

Volume 63, Issue 2, 595-632

Judges are increasingly using social networking websites like Facebook, Twitter, LinkedIn, MySpace, and Google+, and, naturally, the question arises: What are the ethical limits for judges doing so? A number of judicial ethics committees and others knowledgeable about judicial ethics have analyzed this question. Not all, however, were familiar with the nuances of online social networking. The California Judges Association falls into both of these categories. In November 2010, it released an advisory opinion, Opinion 66, describing its views on judges using social networking sites.

This Note details the views expressed by Opinion 66 and by opinions from Florida, Indiana, Kentucky, New York, Ohio, Oklahoma, and Wisconsin. Opinion 66 stated that a judge may not include an attorney in her online social network if the attorney is appearing before the judge—a view shared by Florida and Oklahoma but rejected by Indiana, Kentucky, New York, Ohio, and Wisconsin. This view typifies the failure of Opinion 66 to appreciate that the current ethical rules allow a judge to be online “friends” with an attorney appearing before her. This failure stemmed in part from a lack of recognition that an online connection is not indicative of a close connection. Other analytical flaws were the inexplicably higher standard for online contact and the lack of appreciation of how social networking sites work. Opinion 66—and all of the other opinions on this subject—also failed to appreciate the benefits of allowing judges to use online social networking, including transparency, outreach, and even enforcing the ethical rules.

This Note argues that the California Judges Association can, and should, release a new opinion further analyzing the use of social networking sites by judges.

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The Paranoid Style in Regulatory Reform

Jodi L. Short

Volume 63, Issue 3, 633-694

The U.S. administrative state has been involved in a decades-long regulatory reform project encompassing a shift away from what have been characterized as “command-and-control” approaches to regulation and toward approaches that are more market oriented, managerial, participatory, and self-regulatory in their orientation. Through a content analysis of the nearly 1400 law review articles that comprise the legal critique of regulation between 1980 and 2005, I show that the most salient critiques of regulation concern neither its cost nor its inefficiency, as many have assumed. Instead, they express a deep-seated anxiety about the fundamentally coercive nature of administrative government. In addition, I demonstrate that “voluntary” or “self-regulation” approaches that enlist regulated entities and citizens to perform core governmental functions like standard setting, monitoring, and enforcement emerged from the reform debate with particular prominence. Using both statistical and interpretive inference, I argue that framing regulation as a problem of coercive state power created a logic of governance uniquely suited to self-regulatory solutions that promised noncoercive ways of governing. I situate my empirical analysis in historical context, highlighting its continuities and discontinuities with the coercive- state rhetoric that has infused debates about expanded federal governance throughout U.S. history: at the Founding, during the New Deal, and in the postwar period. Drawing on these empirical and historical analyses, I argue that proponents of government regulation must recognize and engage the deep and abiding anxiety about state coercion. Before a convincing and durable case can be made for any particular regulatory policy, a case must be made for the state.

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A Moral/Contractual Approach to Labor Law Reform

Zev. J. Eigen and David Sherwyn

Volume 63, Issue 3, 695-746

When laws cease to operate as intended, legislators and scholars tend to propose new laws to replace or amend them. This Article posits an alternative: offering regulated parties the opportunity to contractually bind themselves to behave ethically. The perfect test case for this proposal is labor law, because (1) labor law has not been amended for decades, (2) proposals to amend it have failed for political reasons and are focused on union election win rates and less on the election process itself, (3) it is an area of law already statutorily regulating parties’ reciprocal contractual obligations, and (4) moral means of self-regulation derived from contract are more likely to be effective when parties have ongoing relationships like those between management and labor organizations. The Article explains how the current law and proposed amendments fail because they focus on fairness as a function of union win rates, and then outlines a plan to leverage strong moral contractual obligations and related norms of behavior to create as fair a process as possible for employees to vote unions up or down.

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Why Sit En Banc?

Stephen L. Wasby

Volume 63, Issue 3, 747-802

U.S. courts of appeals seldom provide reasons for granting or denying rehearing en banc. The most likely reason for rehearing en banc is that other judges believe the three-judge panel deciding the case had erred, although rehearing is not sought each time judges disagree with a panel. The formal bases for rehearing a case en banc include the three desiderata of Federal Rule of Appellate Procedure 35—conflict with circuit precedent (intracircuit conflict), conflict with Supreme Court rulings, and presence of an issue of “exceptional importance”—and courts’ rules and general orders. Judges introduce other considerations, such as an intercircuit conflict, institutional concerns about resources necessary to hear a case en banc, and whether a case should proceed directly to the Supreme Court.

This Article presents a detailed description of reasons judges offer each other as they seek to have a case taken en banc or argue against such rehearing after a three-judge panel has filed its decision. The data are drawn from case files in the papers of Judge Alfred T. Goodwin of the Court of Appeals for the Ninth Circuit. He was the court’s en banc coordinator from the early 1970s through 1993 and thus was at the communications node for post-panel activity, which he monitored and directed. Reasons offered for rehearing a case en banc are discussed in terms of the above-noted FRAP categories, intercircuit conflict, and institutional reasons. Given particular attention is the relationship between rehearing a case en banc or letting it proceed quickly to the Supreme Court. Some general arguments by judges against en banc hearing are also presented.

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Hip-Hop and Housing: Revisiting Culture, Urban Space, Power, and Law

Lisa T. Alexander

Volume 63, Issue 3, 803-866

U.S. housing law is finally receiving its due attention. Scholars and practitioners are focused primarily on the subprime mortgage and foreclosure crises. Yet the current recession has also resurrected the debate about the efficacy of place-based lawmaking. Place-based laws direct economic resources to low-income neighborhoods to help existing residents remain in place and to improve those areas. Law-and-economists and staunch integrationists attack place-based lawmaking on economic and social grounds. This Article examines the efficacy of place-based lawmaking through the underutilized prism of culture. Using a sociolegal approach, it develops a theory of cultural collective efficacy as a justification for place-based lawmaking. Cultural collective efficacy describes positive social networks that inner-city residents develop through participation in musical, artistic, and other neighborhood-based cultural endeavors. This Article analyzes two examples of cultural collective efficacy: the early development of hip-hop in the Bronx and community murals developed by Mexican immigrants in Chicago’s Pilsen neighborhood. These examples show that cultural collective efficacy can help inner-city residents mitigate the negative effects of living in a poor and segregated community and obtain more concrete benefits from urban revitalization in their communities. Cultural collective efficacy also provides a framework to examine important microdynamics in the inner-city that scholars and policymakers have ignored. Lastly, this Article devises new combinations of place-based laws that might protect cultural collective efficacy, such as: (1) historic districts with affordable housing protections secured through transferable development rights, (2) foreclosure prevention strategies, (3) techniques to mitigate eminent domain abuse, and (4) reinterpretations of the Fair Housing Act’s “affirmatively furthering” fair housing mandate. These examples of place-based lawmaking may more effectively promote equitable development and advance distributive justice in U.S. housing law and policy.

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Note – Risky Propositions: A New Standard for the Award of Attorney’s Fees Against Defendant-Intervenors in Ballot-Initiative Litigation

Matthew Slevin

Volume 63, Issue 3, 867-896

In the current federal litigation regarding the constitutionality of Proposition 8, a ballot initiative that amended the California state constitution to ban same-sex marriage, the issue of which party should pay the prevailing plaintiffs’ attorney’s fees was raised at the district court in 2009. The official proponents of the same-sex marriage ban, who intervened to defend the law at trial and lost, argued that they should not be held liable for the fees. But if they are correct, then the State of California, which did not defend the law and called it unconstitutional, could be made to pay if a final judgment is reached in the plaintiffs’ favor. The issue has been postponed as the case moves through the appellate process. Using the Proposition 8 case as a prominent example, this Note explores the issue of who should pay a plaintiff’s attorney’s fees when the proponent of a successful ballot initiative intervenes to defend its law against a civil rights challenge and loses. It is a significant question not only in the context of the Proposition 8 case, but also in the larger context of the citizen-created ballot initiatives permitted in twenty-five jurisdictions. The Note proposes the adoption of a new standard in both federal and state courts for ballot-initiative litigation, under which the defendant-intervenor will be held liable for the plaintiff’s attorney’s fees unless it can show that its position was substantially justified.

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Note – Private Eyes Watching You: Google Street View and the Right to an Inviolate Personality

Roger C. Geissler

Volume 63, Issue 3, 897-926

Google’s rollout of its Street View service in North America in 2007 provoked little concern about the privacy implications of private homes and individuals being easily viewed by potentially millions of persons. In contrast, Street View’s reception in Europe, particularly in Germany, has been marked by episodes of both public outrage and government concern. These divergent reactions can be explained in part by differing conceptions of the right to privacy—with European concepts of privacy based generally on the notion that an individual’s “dignity” should be protected—and the differing levels of protection afforded by those conceptions to aspects of a person’s identity.
This Note compares the legal protections afforded to individuals’ privacy in the U.S. and in Germany. In particular, this Note looks at the concept of the right to an “inviolate personality” that pervades privacy protection in Germany. This Note argues that such a right can be found in U.S. privacy jurisprudence, and that this right protects persons against the actions of private as well as government agents. Lastly, this Note argues that privacy rights must be defined broadly in an era when Street View is expanding to cover not just public streets and alleys, but also the interiors of museums and even places of business.

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Note – Exposing Misconduct: Fixing the California Supreme Court’s Limitation of Post-Conviction Discovery

Jasmine Berndt

Volume 63, Issue 3, 927-952

Following the Los Angeles Rampart Scandal, a concerned California legislature created post-conviction procedures intended to help wrongfully convicted people challenge convictions resulting from government misconduct. One of these mechanisms was California Penal Code section 1054.9, which allowed defendantpetitioners attacking sentences of death or life without parole to discover evidence to which they would have been entitled at trial upon a minimal showing. After years of broadly interpreting the statute, the California Supreme Court reversed direction with its decision in Barnett v. Superior Court, where it created a new hurdle for those seeking discovery: Defendant-petitioners must now show a reasonable basis for believing the requested discovery actually exists. This Note questions the bases for the Barnett decision’s narrowing of post-conviction discovery and considers how this case will affect defendant-petitioners’ ability to discover evidence of government misconduct in the future. In order to better identify and present claims of government misconduct, this Note looks to North Carolina’s open-file discovery statute as inspiration for new California legislation.

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