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Lewis & Clark Law Review

Volume 9 / Number 2 / Summer 2005



Environmental Law Grows Up (More or Less),
and What Science Can Do to Help

Carol M. Rose

In this Article, Professor Rose assesses the role of science in a maturing modern environmental law. She describes this maturation process, beginning in the early 1970s with a first wave of “behavior-based” (BB) regulations. These regulations constrained the actions of resource-users, but generally they put to one side the very difficult task of linking particular legal constraints to direct impacts on environmental quality. BB regulations served a useful purpose in cutting back large pollution sources, but by the 1980s they came under increasing criticism for their inflexibility, inattentiveness to cost-effectiveness, and failure to confront small and diffuse sources that could be cumulatively more damaging than large or obvious sources.

To remedy these and other problems, a now-maturing environmental law has turned increasingly, although as yet incompletely, to quality-based (QB) approaches, which attempt to connect regulatory efforts directly to improvements in environmental quality. However, the newer QB approaches, including market-based programs, entail much greater reliance on measurement of the relationship between resource uses and quality changes. This pattern in turn puts new demands on scientific knowledge, especially for ways to measure or model (a) small and scattered sources and their impacts (b) marginal or cumulative effects of differing amounts of the same kinds of resource uses, and (c) synergistic effects among different kinds of resource uses, particularly in connection with system-wide regulatory approaches. Policymakers need the scientific community to take these seemingly unglamorous but critical measurement tasks to heart—and also to be tolerant of the ways in which conditions of uncertainty necessarily affect policy decisions.

Defining the Limits of Supplemental Jurisdiction Under
28 U.S.C. § 1367: A Hearty Welcome to Permissive Counterclaims

Michelle S. Simon

In 1990, Congress passed 28 U.S.C. § 1367, which combined the judge-made doctrines of ancillary and pendent jurisdiction into a new category, “supplemental jurisdiction.” Supplemental jurisdiction allows federal district courts with original jurisdiction to also have jurisdiction over all other claims that form part of the “same case or controversy under Article III of the United States Constitution.” This Article analyzes supplemental jurisdiction over both permissive and compulsory counterclaims, before and after the codification of § 1367, by looking at the meaning of “same case or controversy.” It then examines two Circuit Court opinions that have held permissive counterclaims may be subject to supplemental jurisdiction as part of the “same case or controversy” as the claim over which the court has original jurisdiction. The author concludes that recent opinions from the Second and Seventh Circuit Courts of Appeal have correctly recognized federal courts’ ability to hear permissive counterclaims without independent jurisdiction.

Toward a More Expansive Welfare Devolution Debate

Steven D. Schwinn

Leading up to and in the wake of national welfare reform, commentators, scholars, and advocates debated one of the key ingredients in the 1996 legislation: devolution of responsibility for the design and administration of welfare from the federal government to the states. Pro-devolutionists argued that devolution would create 50 state welfare experiments, would result in welfare programs tailored to the unique needs of individual states, and would lead to a race to the top in the quality of welfare programs. Anti-devolutionists argued that devolution would encourage states to compete to repel welfare recipients, to avoid becoming welfare magnets, and, ultimately, to race to the bottom in the quality of welfare services. These polar positions defined—and continue to define—much, if not all, of the welfare devolution debate.

But these arguments are really just two sides of the same coin— polar positions rooted in the same fundamental assumption—and this universe of rhetoric is thus unduly constrained. To see this point, this Article attempts to trace the predominant arguments in the devolution debate to a common intellectual root, neo-Tieboutian jurisdictional competition. Viewed in this light, the Article argues, the predominant rhetoric reflects just one dimension of what ought to be a much more diverse debate. By expanding the debate to include such considerations as political participation, community, and equality and justice, the Article suggests that the debate—and, indeed, options for welfare federalism—can and ought to be much richer.



The Constitutional Limits to Court-Stripping

Michael J. Gerhardt

This Article is part of a colloquy between Professor Michael J. Gerhardt and Professor Martin Redish about the constitutionality of court-stripping measures. Court-stripping measures are laws restricting federal court jurisdiction over particular subject matters. In particular, the authors discuss the constitutionality of the Marriage Protection Act of 2004. Professor Gerhardt argues that the Act is unconstitutional and threatens to destroy the principles of separation of powers, federalism and due process. The Act prevents Supreme Court review of Congressional action and hinders the uniformity and finality of constitutional law. Furthermore, the Act violates the equal protection component of the Fifth Amendment Due Process Clause as it burdens a suspect class (gays and lesbians) by restricting their access to the federal courts.

Same-Sex Marriage, the Constitution, and Congressional Power to Control Federal Jurisdiction: Be Careful What You Wish For

Martin H. Redish

This Article is part of a colloquy between Professor Michael J. Gerhardt and Professor Martin Redish about the constitutionality of court-stripping measures. Court-stripping measures are laws restricting federal court jurisdiction of particular subject matters. In particular, Professor Redish discusses the “outer limits of congressional power” to restrict federal courts’ power to hear suits relating to the constitutionality of government prohibition or regulation of same-sex marriage. Professor Redish argues that there are constitutional limits on congressional power in three circumstances: (1) when Congress uses its power to attempt to resolve substantive constitutional questions; (2) when Congress targets its authority at minorities seeking access to the federal courts; and (3) when Congress attempts to remove particular constitutional questions from adjudication in both federal and state courts. He concludes that Congress may remove adjudication of an asserted constitutional right to same-sex marriage from the purview of the federal courts. However, he suggests that this result may have very mixed political consequences for those who support adoption of such restrictions.



Allegory from the Cave: A Story About a Mis-Educated
Profession and the Paradoxical Prescription

Natasha T. Martin

This Article reviews Ethical Ambition: Living a Life of Meaning and Worth, by Derrick Bell and juxtaposes Bell’s more contemporary critique of the legal profession and practice with the observations of Carter G. Woodson in The Mis-Education of the Negro. The author proposes that the contextual synchronicity of these two works has the potential to dramatically transform the faces of legal education and legal practice and encourage honesty in ethics discourse. In the author’s view, Bell and Woodson’s works are revolutionary in scope and provide the justification and the framework for a more self integrative law practice. The Article begins with a summary of Bell’s and Woodson’s works and demonstrates the connections between them in the context of humanizing the study and practice of law. It then places these works in the broader framework of the entire legal enterprise by offering an examination of the six principles Bell explores in Ethical Ambition and discussing how each principle can contribute to the author’s proposed blueprint for change. The author then addresses some of the practical constraints of implementing a self-integration perspective into law school curricula and legal practice, and attempts to respond to some of the more poignant questions regarding the recommended paradigm. The Article concludes by highlighting the tremendous benefits to be realized if one acknowledges Woodson’s insights and utilizes Bell’s principles as beacons to creating a new framework for training lawyers and engaging in the ethical practice of law.



Give the Little Guys Equal Opportunity at Trade Secret Protection:
Why the “Reasonable Efforts” Taken by Small Businesses Should
be Analyzed Less Stringently

Jermaine S. Grubbs

The most important factor considered when determining the appropriateness of trade secret protection is whether the proposed trade secret owner made “reasonable efforts” to ensure the secrecy of the information on which she now seeks trade secret protection. This Comment suggests that the efforts made by a small business to ensure the secrecy of its information should be evaluated less stringently than the efforts made by large businesses. First, the author summarizes the current state of trade secret law and explains why small businesses need trade secret protection and why the evaluation method currently used is too harsh on small businesses. Then, the author details the standard of evaluation for “reasonable efforts” and discusses three cases where the efforts of small businesses were evaluated using the current, inflexible analysis, and severe unfairness resulted. This Comment next suggests a three-step analysis to effectively evaluate whether a small business made “reasonable efforts” to maintain the secrecy of the information. The three-step analysis is then applied to the three cases discussed previously. In conclusion, two potential criticisms to the suggested three-step analysis are addressed.

Fashioning Protection: A Note on the Protection of Fashion Designs in the United States

Julie P. Tsai

Current United States law does not offer fashion designs protection against design piracy. This Note reviews the current state of intellectual property protection for fashion designs, contends that fashion designs should be protected, and proposes a viable option to provide for fashion design protection in the United States.



Are We Headed for a New Era in Religious Discrimination?:
A Closer Look at Locke v. Davey

Allison C. Bizzano

The Supreme Court’s recent ruling in Locke v. Davey permitted the State of Washington to exclude the study of devotional theology from its scholarship program. The Court found that such an exclusion did not violate the Free Exercise Clause. This Note discusses the reasoning followed by the Court and possible impacts of the decision.

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