[Pages 195-264]
SUBORDINATED DEBT: A CAPITAL MARKETS APPROACH TO BANK REGULATION
Mark E. Van Der Weide* Satish M. Kini**

Abstract: Banking organizations in the United States are growing larger, more complex and more diversified in their operations. As a result, bank regulators are becoming less able to understand and supervise their regulatory charges. The recently enacted Gramm-Leach-Bliley Act contributed to this trend by expanding the activities in which banks and their affiliates may engage. The authors argue that increasing the amount of market discipline to which banks are subject promises to remedy many of the shortcomings of government supervision and regulation. This Article proposes that large banks should be required to issue a minimum amount of long-term subordinated debt to third-party investors and sets forth a comprehensive subordinated debt program as a complement to government regulation of banks. Actual and prospective holders of bank subordinated debt will constrain bank risk taking roughly in accordance with the interests of the federal government and without the bureaucratic and other inefficiencies entailed in government regulation. Holders of bank subordinated debt, as they buy and sell bank debt securities in the secondary market and negotiate purchases in the primary market, will also signal to federal regulators the private sector’s view as to the value of a bank’s enterprise.

[Pages 265-326]
MARRIAGE LAW AND FAMILY LAW: AUTONOMY, INTERDEPENDENCE, AND COUPLES OF THE SAME GENDER
Jennifer Wriggins*

Abstract: Contemporary family law and marriage law in the United States have been criticized by communitarian scholars and others as being too focused on individuals and individual fulfillment. These critiques make some valid points. It is also important, however, to emphasize that contemporary marriage law, for the first time, presents a model of equality and of reciprocal obligations. The Article articulates a broad framework of the functions of family and marriage law. It applies both this framework and the communitarian critique of family law to the issue of same-gender marriage. This analysis leads to the conclusion that same-gender marriage should be recognized. Arguments against same-gender marriage, discussed in the Article, contribute to the “atomistic” focus of contemporary family law.

[Pages 327-382]
ELECTRONIC DISCOVERY IN FEDERAL CIVIL LITIGATION: IS RULE 34 UP TO THE TASK?
Hon. Shira A. Scheindlin* Jeffrey Rabkin **

Abstract:  In today’s world an increasing proportion of the information subject to discovery under the Federal Rules of Civil Procedure is stored electronically, rather than on traditional media. Despite this development, there has been no widespread debate as to whether the federal discovery rules adequately address the difficult issues that frequently arise during discovery of electronically-stored information. Rather, practitioners and judges have assumed that the same rules applicable to the discovery of traditional forms of evidence are easily applied to electronic data. Our overarching concern is the continuing validity of that assumption. This Article focuses specifically on how discovery of electronic evidence proceeds under Rule 34. We conclude that Rule 34 has shortcomings in this context, and therefore propose two simple but potentially significant changes in the wording of the Rule itself. The Article ends by noting that the legal community must confront several additional complex issues arising from the need to adapt the Federal Rules of Civil Procedure to the new era of electronic information.

[Pages 383-464]
BRUM V. TOWN OF DARTMOUTH AND THE PUBLIC DUTY RULE: NAVIGATING AN INTERPRETIVE QUAGMIRE
Kevin M. Barry*

Abstract: In 1993, a group of youths entered the Dartmouth High School and stabbed sixteen-year old Jason Robinson to death in his social studies classroom. In 1999, in Brum v. Town of Dartmouth, the Supreme Judicial Court of Massachusetts held that the town was immune from suit pursuant to Massachusetts’ statutory “public duty rule,” which insulates public employers from liability where the employer does not “originally cause” the harm. This Article traces the evolution of public tort liability in Massachusetts, suggests a three-part framework for interpreting Massachusetts’ public duty rule and proposes a narrowly-tailored exception to the rule in cases like Brum.

[Pages 465-515]
ORGAN HARVESTS FROM THE LEGALLY INCOMPETENT: AN ARGUMENT AGAINST COMPELLED ALTRUISM
Cara Cheyette

Abstract: Organ transplants may offer the best hope of long term survival for individuals afflicted with certain cancers or other debilitating diseases. The hope that a transplant may inspire in an organ recipient should not, however, be the determinative factor when the proposed source of the organ is incompetent. Competent adults are not compelled to act altruistically by undergoing a surgical invasion for the benefit of third parties. Children and mentally incompetent adults should likewise be protected from such compelled altruism. Case by case adjudication of petitions to harvest organs from incompetents are inevitably driven by a concern for the recipient and an unwarranted deference to parental authority, and not by concerns for the autonomy and well being of the incompetent donor.. This Note argues that organ harvests from legal incompetents should be statutorily prohibited.