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Volume 44, Issue 2
Edward L. Imwinkelried, Rethinking the Limits of the Interpretive Maxim of Constitutional Avoidance: The Case Study of the Corroboration Requirement for Inculpatory Declarations Against Penal Interest (Federal Rule of Evidence 804(b)(3)).
44 Gonz. L. Rev. 187 (2009)
Federal Rule of Evidence 804(b)(3) codifies the hearsay exceptions for declarations against penal interest, requiring that when the defense offers a third party's declaration exculpating the accused, the defense must present corroboration for the declaration. The statutory language does not purport to impose a similar requirement when the prosecution offers a third party's declaration inculpating the accused.
This differential treatment of prosecution and defense hearsay seems at odds with the Federal justice system's commitment to evenhandedness, and may even be unconstitutional. In response to these criticisms, most courts have invoked the interpretive maxim of constitutional avoidance, and have read a corroboration requirement for prosecution hearsay into the Rule.
Two recent developments, however, necessitate a rethinking of these courts' interpretations. First, two recent Supreme Court cases have undermined the idea that a corroboration requirement is necessary to satisfy the Sixth Amendment's Confrontation Clause. Second, the emergence of textualism as the dominant modern approach to statutory interpretation eviscerates the decisions of those courts which read a corroboration requirement for prosecution into the Rule because a "plausible" reading of the Rule's language does not support such an interpretation.
Thus, Professor Imwinkelried criticizes the decisions of courts which have invoked the constitutional avoidance maxim in interpreting Rule 804(b)(3). Using this criticism as a launching pad, Professor Imwinkelried then explores the broader question of the impact of textualism on the constitutional avoidance maxim. Professor Imwinkelried then concludes that textualism should tighten the application of many other popular interpretive maxims.
Jack Van Doren, A Restatement of Jurisprudence: Why Not?
44 Gonz. L. Rev. 159 (2009)
In a thoroughly delightful postmodern work, Professor Emeritus Jack Van Doren tackles the origins of the Restatement Movement, their purpose, criticisms arising out of the movement, and proposes (perhaps facetiously) a Restatement of Jurisprudence.
After reviewing the early history of the Restatement movement, Professor Van Doren posits that the purpose of the Restatements was to bring an order out of the welter of cases that courts had decided. In short, the Restatement promoters sought to ward off legislation and preserve the common law in which they ruled supreme.
Professor Van Doren then highlights that once the Restatements were initially published, Realists criticized the project, calling it fantastic (in the sense that the Restatements were unrealistic and ill conceived), and pointing out that it was really window dressing for decisions made on policy grounds seldom articulated.
Professor Van Doren then tackles the mainstream acceptance of the Restatements, noting that some Realists were co-opted into the movement, e.g. Professor Karl Llewellyn. This move prefigured a shift from "law as rules" to "law as an instrument of reform." As a result of this revisionary process, the Restaters placed more conflicting cases and statutes, as well as commentary, into subsequent versions of the Restatements, and thereby devastated the clarity supposedly provided by their works. Moreover, as Professor Van Doren highlights, the putative "clarity" of the Restatements was further disfigured when lawyer representatives of powerful interests, such as banks, infiltrated the process. Professor Van Doren notes that, even after these experiences, the commentators (perhaps laughably) have proposed a new subject for a Restatement, one that would have an enormously sweeping effect: a Restatement of Canons of Statutory Interpretation.
Professor Van Doren then posits that the Restatement movement's attempt to create order out of chaos has been counterproductive- i.e., that the Restators have only added to the welter of possible sources of law. Nevertheless, the Restatement movement appears to be gaining steam.
Thus, as a tribute to this ill-conceived project, Professor Van Doren proposes the Restatement of Restatements: a Restatement of Jurisprudence! After a skeleton draft of a proposed Restatement of Jurisprudence, this article concludes with the question of whether a Restatement of Jurisprudence should be seriously proposed. Maybe even a Federal Rules of Jurisprudence? Why Not? Whatever reasons one might offer to undermine such a project, do those reasons not apply to the Restatement movement as a whole?
Bryan L. Page, State of Emergency: Washington's Use of Emergency Clauses and the People's Right to Referendum
44 Gonz. L. Rev. 44:219
Mr. Page's article examines the Washington State Legislature's use of emergency clauses in legislation, and the effect these clauses have on exempting laws from referendum. Every year, the use of emergency clauses is a hotly debated topic in the legislature and the public. However, no article dealing exclusively with this topic in Washington has been published since 1964.
Mr. Page's article is the first in Washington to trace the history of the referendum and the emergency clause in Washington, and to outline the historical and current jurisprudence concerning the intersection of emergency clauses and the referendum. Mr. Page argues that the overuse of emergency clauses depletes the benefits of the referendum and suggests ways to reduce the improper use of emergency clauses.
Darrel C. Menthe, Reconciling Speech and Structural Elements in Sign Regulation
44 Gonz. L. Rev. 283 (2009)
Mr. Menthe's article argues that there is a need for a new constitutional standard to evaluate sign regulations under the First Amendment. Signs are both speech acts and structures, so they simultaneously implicate First Amendment principles and land-use regulations. Constitutional analysis of sign regulations must begin to balance both the state's police power and the fundamental right to free speech.
The clash of free speech and police power has resulted in a flawed jurisprudence for signage. Continued application of the "vested rights" doctrine in sign cases is unacceptable where it treats signs as merely property. Other important principles, such as the prohibition on prior restraint of speech, are lacking in sign cases. Of equal concern is that where First Amendment principles are honored, they are tortured in their application. This treatment undermines the principles themselves.
Mr. Menthe's article seeks to explain how courts behave in sign cases and why. It explains how First Amendment principles and land-use regulations pull the courts in very different directions. The former accords broad freedom and is hostile to the state; the latter is deferential to state action, almost to a fault. Faced with applying what are viewed as overly permissive First Amendment precedents or ignoring speech rights altogether, courts too often do the latter.
As a solution, Mr. Menthe's article proposes that signs require distinct constitutional treatment in order to balance both legitimate state interests and free speech. Sign regulations should be evaluated as to whether they place and "undue burden" on the right to speak in light of the important governmental interests (including aesthetic interests) advanced to justify the regulation.
Sue Irion, Comment: The [Un]constitutionality of the N.L.R.A.'s Religious Accommodation Provision
44 Gonz. L. Rev. 325 (2009)
Section 19 of the National Labor Relations Act requires unions to accommodate employees on the basis of religion by permitting religious objectors to "opt out" of a union notwithstanding a union shop agreement. Section 19, however, violates the First Amendment in at least two ways. First, it defines religion by referring to specific denominations, thus creating a denominational preference. Second, it applies only to employees who belong to "bona fide" religion, thus creating a preference for established religions and entangling courts in religion by requiring courts to evaluate religious content.
Title VII similarly contains a religious accommodation clause which has been interpreted to permit religious objectors to opt out of a union. It does not, however, contain the same constitutional infirmities as Section 19, because Title VII defines religion broadly without referring to specific denominations and without requiring inquiry into whether a religion is "bona fide." Upon examining recent case law and building on a 1985 article by W. Roger Sherman, Ms. Irion argues that Congress should repeal Section 19 because Title VII offers employees at least as much religious protection as Section 19, without the constitutional infirmities.
Volume 44, Issue 1
Gonzaga Law Review & Gonzaga's Commercial Law Center
proudly present:
A Symposium on The Treatment of Intellectual Property in Insolvency Proceedings
The treatment of intellectual property in bankruptcy involves the intersection of two rather specialized areas of law that rest on differing, sometimes conflicting, policies and that employ different terminology. Perhaps because of that, there seems to be little overlap among the lawyers and academics who practice bankruptcy and those who specialize in intellectual property. For these reasons, there is a dearth of scholarship on the subject, even though the issues that arise are of increasing importance in this information age.
In response to this situation, the Commercial Law Center at Gonzaga University School of Law has joined with the Gonzaga Law Review to produce this symposium on intellectual property in bankruptcy. The four articles presented are intended to explore this intersection, address some of the important issues that can arise, and provide some methodology for engaging in thoughtful analysis. We hope that these articles prompt a more widespread dialogue, and thus begin a vigorous discussion on the state of the law.
Xuan-Thao Nguyen, Selling It First, Stealing It Later: The Trouble with Trademarks in Corporate Transactions in Bankruptcy
This article confronts the problem of distinguishing true sales of trademarks from mere licenses of trademarks when the seller/licensor files bankruptcy. She focuses on the Delaware Bankruptcy Court's analysis in In re Exide Technologies as an example of the inappropriateness of applying the Bankruptcy Code's provisions on executory contracts to trademark licenses that are in economic form a sale of the trademark. Professor Xuan-Thao Nguyen proposes that a party can imperfectly deal with the uncertainty that the Exide Technologies case exemplifies by crafting the trademark assignment as a sale of the mark in a defined field of use, while keeping rights to the trademark for other uses.
Nadine Farid, The Fate of Intellectual Property Assets in Cross-Border Insolvency Proceedings
This article addresses the complex issues posed in dealing with intellectual property assets in a global market. Given the multinational mode of doing business, there is a debilitating lack of certainty regarding what nation's laws will apply in the event of a party's insolvency to distribute the enormous amount of value tied to intellectual property and the licensing of such property. After demonstrating the diverse approaches of the United States, the European Union, and UNCITRAL, Professor Nadine Farid recommends allowing parties to choose in their corporate charter which jurisdiction will be the exclusive jurisdiction for dealing with its assets in the event of its own bankruptcy.
Sharon K. Sandeen, Identifying and Keeping the Genie in the Bottle: The Practical and Legal Realities of Trade Secrets in Bankruptcy Proceedings
This article explores the difficulties that often arise in attempting to serve the objectives of bankruptcy -- preserving assets for creditors in an open process -- while simultaneously preserving and protecting trade secrets despite their fleeting and ethereal nature. In doing so, she examines the treatment of trade secrets in bankruptcy from the perspective of every party: debtor, creditor, and trustee. She concludes that special efforts are in order to ensure that any trade secrets included in the bankruptcy estate are not lost through ignorance and inadvertence.
David R. Kuney, Restructuring Dilemmas for the High Technology Licensees: Will "Plain Meaning" Bring Order to the Chaotic Bankruptcy Law for Assumption and Assignment of Technology Licenses?
This article analyzes in detail the conflicting case law on the assumption and assignment in bankruptcy of licenses of intellectual property. Recognizing the sometimes critical importance of such licenses to the successful reorganization of the debtor, Mr. David Kuney argues for an approach that protects the benefit of the licensor's main bargain while still permitting reorganization to occur.
Linda J. Rusch
Stephen L. Sepinuck
Co-directors, Commercial Law Center
Volume 41, Issue 1
The Greatest Source of Wealth: Washington State's Response to Prenatal Substance Abuse
Rommel P. Cruz
Contesting the Incontestable: Reforming Trademark's Descriptive Mark Protection Scheme
Jason K. Levine
This article examines current United States trademark law as it pertains to descriptive marks and argues the current level of protection afforded these marks fails the goals of trademark law and must be reformed to better guard small businesses, consumers, and the public domain. Presently descriptive marks may essentially be warehoused for over three years before receiving registration on the Principal Register. Nevertheless, these marks may display the ® symbol, giving the impression of having received stronger protection than they have actually been afforded. Further, some descriptive marks, despite never acquiring secondary meaning are granted the ability to prevent other marks from being registered on the Principal Register. Moreover, the first applicant to successfully register a descriptive mark on the Supplemental Register finds their mark elevated to a position that has become increasingly difficult for competitors to climb, despite failing to be inherently distinctive.
The article suggests that the scheme as currently constituted may endanger commerce as well. Both the widespread commercial use of the internet and a number of recent decisions may soon enable a single mark holder, likely a larger business or corporation, to reserve for itself the use of a descriptive term against all others via the use of a domain name, thus stifling competition.
Accordingly, the author suggests a means to preserve descriptive marks and simultaneously rebalance the playing field in favor of the public domain, enhanced competition, the smaller mark owner, and the consumer. He recommends reversing both the legislative and judicial mechanisms that allow the over protection of descriptive marks before they have achieved secondary meaning. The article seeks to reform a system that now skews too far towards the interests of only the largest firms, thereby removing from the public a valuable tool in making the myriad of product choices that are integral to our daily lives. From Public Use to Public Purpose: The Supreme Court Stretches the Takings Clause in Kelo v. City of New London.
In today's heated tort reform debate, the solutions proposed by the political Right and Left fail to account for the complexity of the American system of personal injury compensation. Existing flaws in today's system are best solved by a solution that can uniquely take account of the operational interdependence of first-party insurance and third-party tort liability insurance. The neo no-fault, or "early offers" model is a balanced and carefully configured answer to the challenge of tort reform, capable of achieving beneficial change in terms of efficiency, deterrence, compensation and equity.
Thou Shalt Not Speak: The Nondisclosure Provisions of the National Security Letter Statutes and the First Amendment Challenge
Brett Shumate
Little is known about the government's authority to use National Security Letters ("NSL") in international terrorism and intelligence investigations. What little that is known is consistently misunderstood or mischaracterized. The primary function of this article is to remove the veil of secrecy that cloaks NSLs. The author explains the current status of NSLs and traces their development through the USA PATRIOT Act. Particular attention is paid to the nondisclosure provisions of the national security letter statutes that prohibit NSL recipients from disclosing their existence. After explaining a recent decision holding a nondisclosure provision unconstitutional, the author discusses the appropriate framework that should be used to analyze First Amendment challenges to nondisclosure provisions. The author concludes that the nondisclosure provisions should be analyzed under intermediate scrutiny and should be found constitutional.
From Public Use to Public Purpose: The Supreme Court Stretches the Takings Clause in Kelo v. City of New London
Brent Nicholson and Sue Ann Mota
In one of its most controversial and far-reaching decisions of the 2004 term, the United States Supreme Court held that the Takings Clause of the Fifth Amendment permitted the City of New London, Connecticut to appropriate the private property of one party for purposes of economic development of the property by another private party. Holding that such a taking was within a reasonable interpretation of the Constitutional requirement that governmental use of its power of eminent domain be for a "public use", a sharply divided Court continued its expansive view of the public use requirement, leaving such determinations almost entirely to the discretion of the appropriating entity.
This article begins with a selective examination of the case law background of the public use requirement over the last one hundred years. Particular focus is applied to the two Supreme Court precedents relied on by the five member majority in Kelo: Berman v. Parker, and Hawaii Housing Authority v. Midkiff. The article then provides a detailed examination of the majority and dissenting opinions in Kelo and concludes with a discussion of the implications of the decision.
Neo No-Fault Early Offers: A Workable Compromise between First and Third Party Insurance
Jeffrey O'Connell and John Linehan
Volume 41, Issue 2
The Dilemma of the Remote Tippee
Kathleen Coles
Making State Law in Federal Court
Benjamin C. Glassman
Contesting Collaboration and Modeling: Reconsidering "Non-directive" Orthodoxy in CLinical Legal Education
Harriet N. Katz
Clearing the Murky Waters of the Sargasso Sea: The Supreme Court's Upholding of Acquittals as Final in Smith v. Massachusetts
Mike Staskiews
Discriminatory Intent Requirement: The "Separate but Equal" Doctrine of the Twenty-first Century? A Critical Examination of Felon Disenfranchisement Laws and Related Government Practices in the United States
Cecilia Zhang Stiber
Volume 41, Issue 3
Endangered Species: A Plea for the Preservation of NOLO CONTENDERE in Alaska
Jana L. Kuss
Dammed if You Do, Damned if You Don't: FERC's Tribal Consultation Requirement and the Hydropower Re-licensing at Post Falls Dam
Christy McCann
Contact and Concepts: Educating Students at Jesuit Law Schools
Andrew F. Moore
Readers' Expectations, Discourse Communities, and Effective Bar Exam Results
Denise Riebe
Taxation Unchecked and Unbalanced: The Supreme Court's Denial of Certiorari in Sorrentino
Kenneth H. Ryesky
Volume 42, Issue 1
Sticks and Stones May Break My Bones, But Names Could Get Me a Mistrial: An Examination of Name-Calling in Closing Argument in Civil Cases
Janelle Dine
This article examines the law surrounding what is and what is not acceptable argument during summation. Specifically, the article focuses on inappropriate name-calling of the opposing party, counsel, or witnesses, that is, name-calling that is not supported by specific evidence introduced during trial. As scorched earth tactics become ever popular in the courtroom this article argues that attorneys have an ethical obligation to argue within the the law and follow the rules of professional conduct. The article also opines that attorneys and judges have an ethical duty to prevent and/or report inappropriate name-calling.
This article begins by detailing the current law of closing argument with specific emphasis on the prohibition on appealing to the passion and prejudice of the jury. The article then discusses various applicable provisions in the Model Rules of Professional Conduct that deal with courtroom conduct. Third, the article provides a thorough analysis of various case law involving the issue of inappropriate name-calling. This section recognizes that appellate courts have not dealt consistently with the issue, leaving attorneys with little guidance as to the appropriate conduct during summation. Finally, the article offers a four-part solution to the problem of inappropriate name-calling. This practical solution begins with each individual trial lawyer finding the balance between zealous advocacy and the law.
I E-vote, U I-vote, Why Can't We All Just Vote?!: A Survey of the Changing Face of the American Election
Joshua Clowers
Since its inception, electronic voting (“e-voting”) has presented unique and complex questions for our legal system and our democracy in general. These questions have grown more important as the technology has proliferated state electoral systems, yet e-voting’s technological shortcomings go uncorrected and the legal issues it presents remain largely unresolved. Despite the problems that e-voting has encountered, recent years have seen growing support for the concept of taking the next step in e-voting: voting over the Internet (“I-voting”).
This article is timed in anticipation of the 2006 election season, but also in the wake of the 2004 presidential election. Despite the fact that none of the controversies from the 2000 election seemed to permeate into the 2004 election, an appalling one out of every one hundred votes cast using e-voting technology were simply never counted. This proved not to be a surprising figure, however, given that over 2.2 million votes had gone uncounted in each of the four prior presidential elections. Critics of the technology have gone so far as to say that we are undermining our democracy in favor of convenience at the polls.
The purpose of this article is to show that, though e-voting may be an appealing solution to many of the problems with conventional voting, in its current state and without more checks and balances, security, and means of accountability, the American electoral system is undertaking an impermissibly dangerous approach to altering one of the most hallowed and essential components of its sovereignty. This article critically examines e-voting as it currently exists, what the future holds for e-voting and the potential implementation of I-voting. It closes with a proposed system for the implementation of a hybridized e-voting/I-voting system which attempts to remedy the problems posed by e-voting in its current form and I-voting as it has been proposed.
Restoration and Relief: Procedural Justice and the September 11th Victim Compensation Fund
Tracy Hresko
The development and implementation of the September 11th Victim Compensation Fund were unprecedented events in American legal history. Never before had Congress issued a veritable “blank check” for governmental compensation of those injured by non-governmental acts. Indeed, though the United States government had provided assistance and even financial compensation to disaster victims in the past, such financial assistance was rare and had always been subject to strictly enforced caps. Congress, however, gave control of the September 11th Victim Compensation Fund to a Special Master who was given almost complete authority and discretion to award the victims of September 11th with whatever monetary amount he deemed fit. No caps were placed on these awards and very few directions were given to the Special Master. As such, there was a great deal of speculation and concern about the administration of the Fund. Many worried that it was unfair and insufficient. Others complained that awards were arbitrary, based more on the whims of the Special Master than on the extensive calculations supposedly conducted by his staff. Still others argued that the September 11th Victim Compensation Fund was the best possible response to a difficult set of circumstances, inherently flawed, but important and admirable nonetheless.
The article, therefore, seeks to address these arguments by examining the September 11th Victim Compensation Fund from a procedural perspective. It strives to identify the procedural values considered most important in American society and then to assess the Victim Compensation Fund based on its embodiment of these values. Notably, fairness and efficiency are identified as the two most important overarching procedural values in the United States, with several other principles embodied by each. The paper concludes by making several recommendations for the administration of future victim compensation funds. Because such funds are likely to be proposed, developed and administered in the future, particularly in response to acts of terror on U.S. soil, I think that this is a vitally important topic.
Pandora’s Box: Can HIPAA Still Protect Patient Privacy Under A National Health Care Information Network?
Sean T. McLaughlin
You Drink, You Drive, You Lose: Or Do You?
Tina Wescott Cafaro
This article explores different ways to effectively discourage the crime of alcohol impaired driving. Part I analyzes the trend of utilizing preventative measures such as education to counteract societal acceptance of this crime and discusses the shortcomings of relying exclusively on this measure. Part II discusses OUI prevention based on deterrence and the current use of stricter penalties such as mandatory jail sentences to stop alcohol impaired drivers. In this section, I question whether increasing the severity of the punishment for OUI offenses is effective in stopping the crime. This section also discusses the shortcomings of OUI legislation that make deterring OUI difficult. Part III explores ways to combat the problem of OUI, including de-criminalizing first offense OUI, implementing uniform Dram Shop Laws and combining preventative societal measures with legal means aimed at increasing the likelihood of arrest and certainty of conviction. Ultimately, I conclude that the target of awareness campaigns must shift away from the general public and to alcohol serving institutions. I advocate the adoption in each state of a uniform Dram Shop Act. I also conclude that law enforcement must be provided with adequate funding to facilitate the apprehension of OUI violators and, that once violators are apprehended and convicted, the penalties imposed must be creative in order to deter repeat conduct. These penalties must include enhancing the punishment for driving while one's license is suspended for OUI and for refusing to take a breath test or field sobriety tests.
Volume 42, Issue 2
Seizures Without Searches: Defining Property Seizures and Developing a Property Seizure Model
Major Eric R. Carpenter
The bodies of law surrounding searches and arrests are well developed, and both terms have settled definitions. However, because a seizure is usually the natural byproduct of a search, or is otherwise justified under the plain view doctrine, “pure” property seizure law is not well developed. Consequently, “pure” property seizures have not received much attention, and the term “seizure” has escaped definition: most law school graduates can recite the definition of “search” – how many can recite the definition of “seizure”?
But consider the following hypothetical: imagine federal agents suspect that an American of Saudi Arabia descent has ties to a terrorist organization. He takes a package to a shipping store, with an outbound address to Yemen. He leaves the store, and a federal agent, with the consent of the shipping store, takes the package to her office to investigate the shipping address – all without having a reasonable suspicion that the man was engaged in criminal activity. The agent returns the package before the truck that the package would have shipped out on departs. Did the officer’s actions amount to a “seizure” within the meaning of the Fourth Amendment? If the officer had eventually found some evidence in this package, would that evidence be admissible in court? In this paper, I explore two competing definitions for seizure: each provides a different outcome to this hypothetical. I argue for the adoption of a model that would label this government action a seizure, and require the government to have a reasonable suspicion before seizing the property.
Competing Goals Amidst the “Opt-Out” Revolution: An Examination of Gender Based Tax Reform in Light of New Data on Female Labor Supply
Lora Cicconi
Preserving Due Process: Staying Voluntary Departure Periods in Immigration Proceedings with the Constitutional Avoidance Canon
Erika Lucas
Amid this constant media frenzy there is a quieter, but just as problematic issue of due process rights for illegal aliens in deportation proceedings. In Benslimane v. Gonzales, a recent Seventh Circuit decision, Judge Posner's harsh criticism of the Board of Immigration appeals culminated in the statement that "the adjudication of these [immigration] cases at the administrative level has fallen below the minimum standards of legal justice." Judge Posner is not the only critic of the lack of due process afforded to immigrants in deportation proceedings. The Second, Third, and Ninth Circuits have issued decisions with similar comments. Due to the unyielding criticism from courts, human rights groups, and the media, Attorney General Alberto Gonzales has ordered a comprehensive review of the immigration court system, thereby acknowledging the insufficient procedures currently offered.
This comment approaches this due due process problem by addressing some of the legislation behind the current immigration court system, specifically deportation hearings. It discusses the various circuit court interpretations of this legislation, and proposes a construction of this legislation that maintains the constitutional due process rights of immigrants within the United States, while remaining within the bounds of the statutory language.
Reevaluating Capital Punishment: The Fallacy of a Foolproof System, the Focus on Reform, and the International Factor
Greta Proctor
This article attempts to dispel the misplaced focus on reform within death penalty discourse by demonstrating that reform is ultimately unworkable. Specifically, I focus on the recently proposed "absolute proof" standard, which would raise the standard of proof in capital trials from "beyond reasonable doubt" to beyond all doubt" in an attempt to avoid execution of innocents. I expose the inherent, often overlooked flaws in the very scientific evidence that a "beyond all doubt" standard would rely on, including DNA and other forensics.
More importantly, I argue that the continued, misguided focus on reform has obstructed the true dilemma that American policymakers face with regard to capital punishment. This article asserts that because of the impossibility of reform, America must either abolish capital punishment entirely, or must alternatively acknowledge its failings head-on and attempt to reconcile the inevitable sacrifice of some innocent persons with our Constitution. The imminence of such decision is made more pronounced and urgent by the current state of affairs internationally with regard to capital punishment. The global community continues to align against the death penalty, while at the same time terrorism increasingly requires international cooperation in the punishment of worldwide criminals. This international pressure, combined with ongoing domestic controversy, makes the American policy on the death penalty a potentially explosive issue.
Georgia v. Randolph: A Murky Refinement of the Fourth Amendment Third-Party Consent Doctrine
C. Dan Black
Volume 42, Issue 3
What’s Good for the Goose is Good for the Gander, Lessons from Abu Ghraib: Time for the United States to Adopt a Standard of Command Responsibility Towards its Own
Victor Hansen
This article addresses the need to establish a standard of criminal accountability under U.S. domestic law for commanders whose soldiers violate the law of war. In the wake of the detainee abuse scandals, the military responded by subjecting only lower ranking service members to military courts-martial. Mid-level and senior military commanders did not face criminal sanctions in spite of the fact that under international law there is a well recognized criminal law doctrine of command responsibility. The article explores the theoretical basis of the command responsibility doctrine, its origins, and its development in the 20th Century as part of the customary international law. The article examines the United States’ failure to incorporate a similar doctrine under U.S. domestic law as reflected in the Uniform Code of Military Justice. The article illustrates the serious adverse consequences stemming from the United States’ failure to have a legal mechanism to affix criminal responsibility on commanders. The article proposes a comprehensive amendment to the Uniform Code of Military Justice in order to fully incorporate the doctrine of command responsibility into U.S. domestic law. The proposal also offers ways to remedy specific aspects of the doctrine that have remained a source of confusion under international law.
Subsidiarity and Protest: The Law School’s Mission in Grutter and Fair
Peter Widulski
The adoption of the principle of subsidiarity as a constitutional principle of the European Community has stimulated scholarly interest in this principle and investigation into the extent to which subsidiarity is reflected in the United States Constitution, in acts of Congress, and in U.S. Supreme Court decisions. The principle counsels, among other things, that in enforcing its legitimate mandates the highest political authority in a national state or community of states should avoid to the extent possible frustrating the initiatives of intermediary associations and institutions undertaken pursuant to their function or mission and in service to their members and to society at large. At the same time, however, the principle acknowledges the ultimate authority of the political order to co-ordinate the activities of intermediary bodies with the rest of society and with the law, with a view to the common or public good. In Regent of the University of California v. Bakke (through Justice Powell’s Opinion) and in Grutter v. Bollinger, the Supreme Court’s judgments implicitly reflected subsidiarity concerns by acknowledging the importance of the academic admissions policies at issue in these cases to the mission of professional schools, by taking account of the contributions of these policies to the public good, and in holding that such policies can be co-ordinated with the law to be applied and with national policy. In its decision this past term in Rumsfeld v. FAIR, however, the Court rejected the challenge of an association of law schools to enforcement of a Congressional statute requiring them to provide campus access to the military for recruitment purposes – a challenge grounded in the law schools’ protest against the military’s policy on recruitment of homosexuals. Despite the fact that the law schools argued that their stance was based on mission-related goals, the Court gave no deference to the law school mission and unanimously rejected this challenge. It is the thesis of this article that it is unwarranted to read the Court’s decision in FAIR as repudiating the Court’s implicit acknowledgment of subsidiarity concerns in Bakke and Grutter. The legal contours of FAIR gave significantly less scope than was available in the other two cases for acknowledgment of the academic mission and for arguing that the law schools’ policy in question served the public good. And the fact that this policy was opposed to a statute supporting military recruitment made the co-ordination problem much more difficult than in the other two cases.
From CD to MP3: Compression in the New Age of Technology Overlooked Infringement or Fair Use?
Sydney Aaron Beckman
This article examines the legal aspect of a common practice: transferring music from Compact Disc to portable media players such as an iPod. In accomplishing the transfer, the original songs are necessarily compressed into a different format such as AAC or MP3. Although the United States Copyright Act clearly governs this practice, application of the Act to these transfers has been ignored by the literature which has focused primarily on file-sharing. However, this practice is much more prolific than file-sharing. This article analyzes this practice in light of the Copyright Act and reaches the conclusion that such conversion into a compressed format violates the exclusive rights held by copyright owners.
Eliding in Washington and California
Monte Neil Stewart
For a number of years now, the “marriage issue” has been hotly contested in the courts of the United States, Canada, and South Africa. The issue is this: Do constitutional norms, particularly of equality and liberty, require the redefinition of marriage from the union of a man and a woman to the union of any two persons? Despite the intensity of the contest, all informed participants acknowledge that marriage is a vital social institution. That understanding has brought attention to social institutional studies, which in turn has led to a number of uncontroversial understandings of social institutions in general and the marriage institution in particular, which in turn has led to the social institutional argument for man/woman marriage. This argument is a sufficient response to all constitutional attacks leveled at the laws defining and sustaining man/woman marriage. The judges who would mandate the redefinition of marriage, however, have elided the social institutional argument for man/woman marriage; that is, they have ignored or evaded it. Their models of elision are now well documented in scholarly literature and are repeating themselves case by case, but with each new case also managing to provide at least one original evasion of social institutional realities. This pattern is seen in the dissenting opinions in two recent appellate court cases addressing the marriage issue: The Washington Supreme Court’s Anderson v. King County and the California Court of Appeal’s In re Marriage Cases. Because those dissenting opinions are interesting, and engagement with them intellectually productive, this article critically examines both.
The Family Medical Leave Act of 1993—Why Does Parental Leave in the United States Fall so far Behind Europe?
Annie Pelletier
