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Lewis & Clark Law Review

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Volume 18 / Number 1 / 2014

ARTICLES

WHACK-A-MOLE: WHY PROSECUTING DIGITAL CURRENCY WON’T STOP ONLINE MONEY LAUNDERING

Catherine Martin Christopher

18 Lewis & Clark L. Rev. 1 (2014)

Law enforcement efforts to combat money laundering are increasingly misplaced. As money laundering and other underlying crimes shift into cyberspace, U.S. law enforcement focuses on prosecuting financial institutions’ regulatory violations to prevent crime, rather than going after criminals themselves. This Article will describe current U.S. anti-money laundering laws, with particular criticism of how attenuated prosecution has become from crime. The Article will then describe the use of Bitcoin as a money-laundering vehicle, and analyze the difficulties for law enforcement officials who attempt to choke off Bitcoin transactions in lieu of prosecuting underlying criminal activity. The Article concludes with recommendations that law enforcement should look to digital currency exchangers not as criminals, but instead as partners in the effort to eradicate money laundering and—more importantly—the crimes underlying the laundering.

JUDGING STORIES

Noah Benjamin Novogrodsky

18 Lewis & Clark L. Rev. 37 (2014)

This Article uses the confluence of incitement to genocide and hate speech in a single case to explore the power of stories in law. That power defines how we see the world, how we form communities of meaning, and how we speak to one another.

Previous commentators have recognized that law is infused with stories, from the narratives of litigants, to the rhetoric of lawyers, to the tales that judges interpret and create in the form of written opinions. “Judging Stories” builds on those insights to address the problems posed by transnational speech and the question of which norms apply to inflammatory publications transmitted across borders. This Article introduces the term “master story” to make three related claims. First, states produce and rely upon master stories—constitutive legal narratives—that define political culture and shape the contours of permitted and forbidden speech. Second, judges play a unique role in constructing master stories. Judicial speech is different than other forms of commentary and serves to join law with communal fables in ways that legitimate some stories at the expense of others. Third, courts and tribunals are beginning to use incitement to genocide—but not hate speech—to write a new master story. As geographically and temporally removed tribunals are called upon to adjudicate hateful expression from outside the master story, a global process is unfolding that may serve to reset the balance between unfettered speech and the threat of dignitary harms posed by incendiary language. Channeling international human rights law and norms, judges are supplanting exhortations of hatred with the language of reason in an effort to develop a body of transnational legal rules, a new nomos for an interconnected world.

FORGET SENTENCING EQUALITY: MOVING FROM THE “CRACKED” COCAINE DEBATE TOWARD PARTICULAR PURPOSE SENTENCING

Jelani Jefferson Exum

18 Lewis & Clark L. Rev. 95 (2014)

While a racial equality-themed discourse has traditionally fueled the crack-versus-powder cocaine sentencing debate, this Article asserts that seeking equality in sentencing outcomes is the wrong goal. This Article argues that reformers seeking racial equality in sentencing are misguided in using the cocaine sentencing standards as a benchmark of fairness, because the current cocaine sentencing standards do not effectively serve the purposes of punishment. Rather than focusing on equality, this Article advocates implementing Particular Purpose Sentencing, which involves developing a framework for drug offenses to be analyzed individually and matched with punishments that purposefully address the concerns associated with the particular offense. Particular Purpose Sentencing also requires that, once sentences are matched to a specific purpose, the outcomes of those sentences be studied to ensure that they are fulfilling their particular sentencing purpose. This Article analyzes the legislative and judicial limits of basing sentencing reform on racial equality goals, and explores how implementing Particular Purpose Sentencing has the potential to result in more effective and racially equal consequences. Though this Article introduces Particular Purpose Sentencing using the drug sentencing context, this new sentencing theory can be applied to achieve fairer, more successful sentencing for all offenses.

THE UNFULFILLED PROMISE OF THE MAGNUSON-MOSS WARRANTY ACT

Janet W. Steverson

18 Lewis & Clark L. Rev. 155 (2014)

The Magnuson-Moss Warranty–Federal Trade Improvement Act (MMWA), enacted in 1975, was Congress’s attempt to remedy some of the problems faced by consumers with regard to defective goods and misleading warranties. In particular, Congress provided for four federal causes of action for consumers who have been harmed by a supplier’s violation of the Act or a supplier’s breach of a written warranty, state law implied warranty or service contract. The MMWA sought to ease the way for such consumer suits by providing for an award of attorneys’ fees and costs to a consumer who prevails on one of the four MMWA causes of action; allowing suit against remote sellers (e.g., manufacturers); and providing for federal jurisdiction for high stakes MMWA cases. Through these private redress provisions, Congress hoped to promote greater product reliability by easing the way for consumers to hold the suppliers of defective products accountable. Unfortunately, a significant number of federal and state courts have incorrectly interpreted the language of the MMWA, with many of the interpretations being quite surprising, given the clear language of the Act. The incorrect interpretations would simply be nuisances except that the courts’ holdings have severely limited the consumers’ ability to obtain private redress against the suppliers of defective consumer products. In limiting consumer redress, the courts have undercut one of the MMWA’s main purposes. This article identifies the problematic cases and demonstrates how the courts’ interpretations are contrary to the language and purpose of the MMWA.

2013 Honorable Betty Roberts Women in the Law Lecture

THE STRUCTURE OF SOVEREIGNTY

Diane P. Wood

18 Lewis & Clark L. Rev. 215 (2014)

The concept of sovereignty is ubiquitous, but its complexities are often under-explored. A nuanced understanding of sovereignty is critical to answering the most fundamental questions of legal legitimacy. To truly understand what sovereignty is and the centrality of its role in legal systems, one must also examine the corollary doctrine of sovereign immunity. This lecture considers both doctrines, with a particular focus on the United States’ domestic experiment in multi-layered sovereignty and its implications for the relationship between the federal and state governments. While there exists a rich literature on sovereignty and sovereign immunity, many important questions remain unresolved. This lecture aims to tease out those issues and to encourage further scholarship exploring the appropriate scope and content of modern sovereignty.

NOTES & COMMENTS

LESSONS FROM STATE V. LAWSON: THE RELIABILITY FRAMEWORK APPLIED TO CONFESSIONS AND ADMISSIONS

Stacy Du Clos

18 Lewis & Clark L. Rev. 227 (2014)

The Oregon Supreme Court’s ruling in State v. Lawson changed the way courts approach eyewitness identification evidence in criminal trials. Under Lawson’s framework, Oregon courts assess the reliability of eyewitness identifications under the Oregon Evidence Code and can provide remedies tailored to that concern. Additionally, the Oregon Supreme Court took judicial notice of an extensive body of research in the field and provided a non-exclusive list of considerations based on that research. In doing so, the Court has transcended the Constitutional doctrines that do not adequately address the proven unreliability of eyewitness identifications.

Like eyewitness identifications, false confessions have contributed to an alarming number of wrongful convictions, and the constitutional doctrines for suppressing the evidence offer inadequate protections. This is because, again, the risk of unreliability, standing alone, is not enough to suppress the evidence. However, the known risks of police interrogation practices suggest that courts should take the same evidentiary precautions when presented with confession evidence as they now apply to identifications. This Note explores the value of this approach and proposes the factors a court could consider in undertaking an evidentiary review of confession evidence.

 LITIGATING THE INVOLUNTARY DISMOUNT—NUNEZ V. SCHNEIDER NATIONAL CARRIERS AND THE VIABILITY OF A BICYCLE HELMET DEFENSE

Hans N. Huggler

18 Lewis & Clark L. Rev. 271 (2014)

Bicycling is increasingly becoming a focus of urban transportation policy, with cities across the United States looking to emulate the success of European cities and (to a lesser extent) American cities like Portland, Oregon, in encouraging commuting and urban trips by bicycle. An increase in mixed-traffic cycling makes likely an increase in serious-injury collisions between cyclists and automobiles, pedestrians, or other urban users. This Note explores the viability of a “bicycle helmet defense,” patterned after the “seatbelt defense,” whereby a defendant asserts that some or all of a plaintiff bicyclist’s injuries are the result of the cyclist’s failure to exercise reasonable care by wearing a helmet. This Note uses the successful assertion of a bicycle helmet defense in New Jersey as a lens for considering the defense and its viability in other jurisdictions.

Part I of this Note introduces the relevant tort concepts and briefly considers the policy rationale for a bicycle helmet defense. Part II explores the development of the seatbelt defense in New Jersey, which is important to understanding the successful assertion of the bicycle helmet defense there. Part III analyzes an unsuccessful attempt to assert the bicycle helmet defense in 1997 and then explains how the court in Nunez v. Schneider National Carriers built the bicycle helmet defense on the foundation of New Jersey seatbelt defense jurisprudence. Part IV explores the jurisprudential landscape across the country and identifies a group of “target states” where advocates have the highest likelihood of success in asserting a bicycle helmet defense. It also briefly examines what arguments advocates should consider in asserting the defense. This Note concludes that while the number of target states in which a bicycle helmet defense could be asserted is limited, the defense is viable in a number of jurisdictions, including the populous states of California, New York, and Michigan.

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