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110 Harv. L. Rec. 1 (2000)

handle is hein.journals/hlrec110 and id is 1 raw text is: OUR
I Harvard Law RECORD

America's First
Law School

Volume 110, No. 1                Cambridge 02138             Friday, January 14, 2000
Alum off to running start
Cranley '99 Democratic candidate for US. Congress

By Justin Cooper

Maura alam fort he  lL Forum
Al Frankon addresses the HLS Forum on Dec. 3, 1999.
Try 2K? Maybe not

By Justin Herdman

When the clock struck mid-
night Dec. 31, the lights stayed
on. And while millennium cel-
ebrations around the globe
toasted the New Year with cham-
pagne and good cheer, there was
a small group of individuals who
may have been disappointed at
the problem-free transition.
The wet blankets were not mi-
litiamen holed up in caves, but
litigators. Leave it to lawyers to
ruin everybody's good time.
The Y2K bug seemed to be a
ripe target for lawyers, as the
glitch was present within a large
portion of the world's computers
and electronic devices. The flaw
should have resulted in shut-
downs of almost every affected
computer and required expen-
sive software patches to insure
continued service.
Millennium experts had tbre-
cast a wide range of cataclysmic
computer failures stemming from
the bug. The predicted conse-
quences of the problem included
power failures, lost corporate
data and even airplane crashes.
When the most dire of the Y2K
catastrophes ultimately failed to
materialize, the rest of the world
breathed a sigh of relief.
Lawyers expecting millen-
nium bug business may have
uttered more than a sigh,
though. Those who were doing
Y2K work shouldn't give up their
day jobs, said Reed Kathrein, an
attorney with the San Francisco
firm Milberg, Weiss, Bershad,
Hynes & Lerach, which like
many firms had established a
special Y2K task force.
The years preceding the millen-
nium turnover witnessed escalat-
ing reluctance among litigators to
ignore the Y2K flaw. Millennium
bug lawsuits would have been
based on causes of action rang-
ing from personal injury to breach
of contract and non-disclosure.
Treating the millennium bug
as a products liability case
seemed tailor-made for profitable
class-actioi. lawsuits, in some
cases projected to exceed trillions
of dollars. And because of a fed-
erally mandated 90-day wait pe-
riod on Y2K litigation, it may be
too early to tell the extent of court
action stemming from the bug.
It's still premature, said Claude
Stern, a Palo Alto attorney and
expert on Y2K issues.
Getting a Jump on the Bug
Oddly, the type of Y2K litiga-

tion that has survived the tran-
sition was initiated before the
calendar changed. The type of
lawsuit at issue involves large
corporations, like Nike and
Xerox, who have brought claims
against their insurance compa-
nies. The suits question whether
the corporations' Y2K prepara-
tions were covered under insur-
ance policies.
The Xerox case, which was
'filed last July against American
Guarantee & Liability, seeks
$180 million for outlays required
to fix the corporation's millen-
nium bug problem. The company
is suing under a provision in the
policy that covers any losses from
destroyed, distorted or corrupted
computer software and data.
Xerox also claims that the Y2K
expenses should be reimbursed
under a sue and labor clause,
where a corporation can recover
money spent to mitigate prospec-
tive damages. The classic ex-
ample of a sue and labor action
is a corporation that erects sand-
bag walls to protect a factory
from flooding. A lawsuit would
reimburse the cost of the sand-
bagging under the theory that
the insurance company would
have shelled out far more to
cover the flood damage.
The success of Xerox's lawsuit
could determine the course of fu-
ture Y2K litigation. If legal theo-
ries in the action are affirmed,
they could be used by other large
corporations seeking collection
for millennium bug expenses.
Legal experts are quick to
point out that such lawsuits will
be conducted almost exclusively
by large corporations because of
the resources required for sus-
tained, effective litigation. Addi-
tionally, huge companies are
more likely to have spent exor-
bitant funds to fix their often
complex Y2K problems.
Reigning in the Law
Fears of excessive Y2K litiga-
tion prompted federal action last
year. In July, Congress passed
the Y2KA ct, which offered liabil-
ity protections for smaller soft-
ware manufacturers by limiting
punitive damages and raising
the burden for breach of contract
actions. The software industry
lobbied heavily for the bill, claim-
ing that lawsuits stemming from
the millennium bug could have
resulted in a financial apoca-
lypse for high-tech innovators.
At the time, statements by
Please see Y2K, p. 4

a lot of ent]
ity. We've
people invo

Perhaps the transition from  mer project
JD candidate to Congressional    Cranleyi
candidate does not require     chances, in
mounds of dough and decades of  demograph
political experience. John     district'sbc
Cranley '99 graduated from HLS  by the Den
last June, and last Friday he  vor Democi
locked up the Democratic nomi-  cinnati vo
nation for Congress from his   Democrat
home district in Ohio.         have lost r(
Cranley, currently pursuing a  ever, becau,
degree at the Harvard Divinity  ings in th
School, will be running for office  nated, Cat
in the first Congressional Dis-  west and n
trict of Ohio, which includes all  Cranley
of Cincinnati and some of its sub-  suburbs, h
urbs. There are no other Demo-  parents arE
cratic contenders, so he expects  hopes to dr
to coast through the primaries,  votes that
At that point things will get  his favor. '
more difficult. We're going to  election, h
have to redefine the way a Con-  going to wi
gressional race is run, Cranley  A recent
said. The odds are against us.  ticle gave
Cranley's Republican oppo-  in the electi
nent, Steve Chabot, has been in  tive newco
office since 1994, and has well  process. Sor
over a million dollars for the race.  have compa
Cranley's campaign, meanwhile,  former Cin
will have to be more grassroots.  Springer,
We're going to knock on every  elected off
door and have a sign on every  While Crm
lawn, said Cranley, whose long-  complemer
time friend, Dan Drihaus, will  not sure h
be his campaign manager.       paredtoSp
Cranley says his campaign has    Regardlc
little money, and may not even  position is
run a single poll, but they have  miraculous

husiasm and creativ-
e got a lot of young
lved; this is our sum-
t! he says.
is optimistic about his
part because of the
ics of his district. The
orders were drawn up
nocrats in 1990 to fa-
rats; the city of Cin-
tes overwhelmingly
ic. The Democrats
ecent elections, how-
se of their weak show-
e Republican-domi-
holic suburbs to the
orth of the city.
is from the western
e is Catholic, and his
e Republicans, so he
raw crucial crossover
will tip the election in
The secret about this
he says is that we're
Washington Post ar-
Cranley little chance
ion, since he is a rela-
omer to the political
me Cincinnati papers
ared him favorably to
ncinnati Mayor Jerry
however, who won
rice in his twenties.
nley appreciated the
nt, he joked that he is
ow well being com-
pringer will serve him.
ess, Cranley's current
s unexpected, if' not
s. This is crazy! he

says of his being nominated by
the Democratic Party. 'in 25
years old, I've never had a full
time job, and I live in Boston!
So, how did he get where he is
today? Cranley grew up in Cin-
cinnati, where he attended a Je-
suit high school. He moved on to
John Carroll -University in
Cleveland, also a Jesuit school,
where he was twice elected stu-
dent body president, and then to
Harvard Law School. During his
summers, he went back to Cin-
cinnati and worked with the
Democratic Party as a volunteer.
I worked on a couple of cam-
paigns, but I didn't do that
much, Cranley said. Cranley
says that the string of events
leading to his nomination is still
something of a mystery to him,
but that when presented with
this opportunity, he could not
A school-sponsored trip to the
Dominican Republic at age 17, in
which he worked with malnour-
ished children in poverty-
stricken  communities, led
Craniey to resolve never to back
away from a chance to make a
difference and combat injustice.
He sees holding political office as
just such an opportunity.
When the Democratic Party
suggested to Cranley that he
might be their candidate, he first
suggested that they look for
Please see CRANLEY, p. 3

Federalism war rages on

By Francesco R. Barbera
One can fault Chief Justice
William J. Rehnquist for many
things, but lack of patience isn't
among them. Twenty-seven
years after his appointment to
the Court, and 14 years after his
elevation to the status of capo di
tutti capi, Rehnquist is finally
watching his states-rights cru-
sade bear fruit.
This has been evident for quite
a while now, but events this week
underscored that the Rehnquist
Court seeks nothing less than a
fundamental reconfiguration of
American federalism. In a deci-
sion announced Tuesday, the
Court ruled that Congress lacks
the authority to bind state gov-
ernments to a decades-old fed-
eral law prohibiting discrimina-
tion against elderly workers.
The Court found the law, the
Age Discrimination in Employ-
ment Act (ADEA), to be an inap-
propriate exercise of Congres-
sional authority under the
enforcement clause of the 14th
Amendment. Justice Sandra
Day O'Connor, writing for a
now-familiar five-member major-
ity, held that the law constituted
an unwarranted response to a
perhaps inconsequential prob-
lem, and thus did not trump

states' sovereign immunity un-
der the 11th Amendment. The de-
cision, Kimel v. Florida Board of
Regents, emphasized the fact that
Congress never identified a pat-
tern of age discrimination by
state employers. and noted that,
since age is not a suspect class,
such discrimination rarely rises
to the level of a Consitutional
The Justices are slated to
hand down four more federalism
decisions this term, including
one in the heavily publicized case
of Brzonkala v. VPI State Uni-
versity. On Tuesday, after an-
nouncing its Kimnel decision, the
Justices heard oral arguments in
the Brzonkala case, which poses
a constitution challenge to a pro-
vision of the Violence Against
Women Act which creates a pri-
vate right of action for victims of
gender-motivated violence.
The plaintiff-respondent in the
case, Christy Brzonkala, brought
a suit under the Act against two
of her classmates at Virginia
Polytechnic Institute who alleg-
edly pinned her to a dormitory
bed and raped her. The District
Court in Virginia held the provi-
sion unconstitutional, and, in a
scathing opinion laced with con-
servative rhetoric (... in this day,
when accretion, if not actual ac-
cession, of power to the federal

government seems not only un-
avoidable, but expedient...),
Rehnquist's comrades on the
Fourth Circuit agreed.
Circuit Judge Luttig held
that the provision exceeded
Congress's authority under both
the Commerce Clause and the
Enforcement Clause of the 14th
Amendment. The decision relied
heavily on United States v. Lopez,
Rehnquist's1995 decision which
,struck down a federal law prohib-
iting possession of a weapon in
school zones. Parting ways with
decades of deferential Commerce
Clause jurisprudence, the Court
found the law exceeded Congres-
s's power.
Linda Greenhouse of the
New York Times, reporting on the
oral arguments, made it clear
that the five-justice states-rights
majority did little to conceal their
skepticism of the VAWA's consti-
tutional validity.
And so, at this point, it's self-
evident that, unless Nino Scalia
retires in time to give President
Clinton a chance to find a suit-
able replacement, the Court's
march towards states rights will
continue   apace,  and  the
Brzonkala case seems a likely
candidate to help things along.
On the equal protection front,
Please see COURT, p. 4

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