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Lewis & Clark Law Review

Volume 9 / Number 3 / Fall 2005



Crime Victim Law: Theory and Practice

Leading victims’ rights law scholars from around the globe gathered at Lewis & Clark Law School on March 11, 2005, to discuss the state of victims’ rights law at a symposium entitled “Crime Victim Law: Theory and Practice.” This issue of the Lewis & Clark Law Review presents the articles from the symposium. This symposium was the first of what will become Lewis & Clark Law School’s annual spring symposium.


The Crime Victim’s Right to Attend the Trial:
The Reascendant National Consensus

Douglas E. Beloof & Paul G. Cassell 

Professors Beloof and Cassell contend that crime victims should have an unequivocal right to attend a criminal trial, even in cases where they will be called as witnesses. A victim’s right to attend trial has strong historical support, as at common law victims attended trial as private prosecutors. More recently, crime victims’ rights legislation passed in the majority of states recognizes the victim’s right to attend. Nothing in the Constitution prevents victims from attending trial, and strong public policy reasons support such an approach. Observing the trial can have import therapeutic and other benefits for victims. Any risk of prejudice to a defendant from the possibility of a victim “tailoring” testimony to that of other witnesses can be solved through such means as requiring the victim to testify first and permitting thorough cross-examination by defense counsel. 

Justice and Fairness in the Protection of Crime Victims 

George P. Fletcher

In this Article, Professor Fletcher discusses the crucial distinction between justice and fairness—as well as its effect on the shifting “boundaries of victimhood”—from a comparative viewpoint by examining the approaches that various human rights instruments take to the problem of victims’ rights. While the European Convention on Human Rights represents an evolving “middle ground” in the treatment of victims’ rights (such recent cases as X. & Y. v. The Netherlands, A. v. United Kingdom, and M.C. v. Bulgaria are examined), only the Rome Statute of the International Criminal Court gives real priority to victims of crime with its emphasis on the eradication of “impunity” in international criminal cases. Indeed, Fletcher asserts that the ICC represents a significant victory for the victims’ rights movement as a whole. 

Prosecutorial Ethics and Victims’ Rights:
The Prosecutor’s Duty of Neutrality

Bennett L. Gershman

In recent years, enhanced legal protections for victims has caused victims to become increasingly involved in the criminal justice process, often working closely with prosecutors. In this Article, Professor Gershman analyzes the potential challenges to prosecutors’ ethical duties that victims’ participation may bring and suggests appropriate responses.

On the Wings of Their Angels: The Scott Campbell,
Stephanie Roper, Wendy Preston, Louarna Gillis,
and Nila Lynn Crime Victims’ Rights Act

The Honorable Jon Kyl, Steven J. Twist, & Stephen Higgins

The Crime Victims’ Rights Act of 2004 guarantees crime victims both participatory and substantive rights that are enforceable in federal court, including rights to notice of proceedings, the right to be present, notice of release or escape, restitution, speedy trial, safety, and the right to be heard. Empowering crime victims with rights mitigates many of the injustices that crime victims face while the government prosecutes the cases against offenders. This Article sets forth the historical background and legislative history of the new law and explains its provisions and terms.

What’s Good and Bad About Blame and Victims

Jaime Malamud Goti

This Article connects the notions of victimhood and blame and explores their weight in the politics of redressing state abuses. The central point is that, whether addressed to large groups or to specific individuals, blame simplifies reality by turning those blamed into the sufficient cause of a harm. This process implies removing from focus otherwise relevant contributions to the outcome. Through criminal trials, truth commissions, and public acknowledgement, blame is a valuable tool for integrating victims of state abuses to their own community. Protracted blame, however, blurs reality and the achievement of a broader consensus on the meaning of past deeds.

“Federalizing” Victims’ Rights to Hold State Courts Accountable

Wendy J. Murphy

Collected Statements on Victims’ Rights Legislation 

Laurence H. Tribe & Paul G. Cassell


The SUV Tax Loophole: Today’s Quintessential Suburban Passenger Vehicle Becomes Small Businesses’ Quintessential Tax Break

Carrie M. Dupic

Concededly, whether any given tax provision of the Internal Revenue Code (“the Code”) is a “loophole” or an “opportunity” is a matter of perspective. Of late, section 280F(d)(5) of the Code has been both criticized and praised for the dual tax-evading and tax-saving qualities it possesses. Known as the “SUV tax loophole,” this Code section is the mechanism that sets the wheels of tax incentives turning, producing great tax write-offs for those small businesses and self-employed individuals who buy heavy sport utility vehicles for business use. This Comment explains the development of the SUV tax loophole, and demonstrates, by way of illustrative hypotheticals, its persuasive influence on small businesses’ vehicle choices. Also discussed are legislators’ failed attempts to “close” the loophole at both the state and federal levels. Finally, this Comment argues for and suggests ways for Congress to close the SUV tax loophole at its source in section 280F(d)(5).

Reach-Through Royalties in Biomedical Research Tool
Patent Licensing: Implications of NIH Guidelines on Small Biotechnology Firms 

Kimberlee A. Stafford

Reach-through royalty provisions in patent licenses for research tools have been blamed for decreasing innovation in the biomedical field. The competing interests of large pharmaceutical companies, universities, emerging biotechnology firms, and the government are at odds in the reach-through royalty controversy. The 1999 National Institutes of Health (“NIH”) Guidelines regarding research tools further complicate the issue by applying the same limitations on reach-through royalties to small business and universities alike. The guidelines were meant to alleviate the bottleneck created by complicated exclusive license agreements, but they also have the effect of harming small businesses which are reliant on their ability to license their research tools. This is exacerbated by the inadequate and unequal enforcement of the guidelines. One solution is the elimination of the NIH Guidelines, and their replacement by regulations that differentiate between university and business concerns in the use of reach-through royalties.

Profits, Politics, and the Promise of Free Speech:
Defining Commercial Speech After Nike v. Kasky

Matthew Yium

As consumer demands become more sophisticated, companies like Nike, Wal-Mart and McDonald’s seek to carve out a corporate identity that will separate them from their competitors. These corporations adopt marketing strategies that align their brand image with political ideology in the hopes of reaching a demographic similarly aligned with those beliefs. Yet when a corporation “takes a stand” on a political issue, courts have not agreed on whether such expression constitutes commercial or political speech. The distinction makes a difference: commercial speech, as a medium of expression motivated by profits, has been deemed less worthy of First Amendment protection than political speech. In this Note, the author traces the development of the commercial speech distinction from its origins up to the recent Nike v. Kasky case, which illustrated the seemingly inevitable clash between commercial and political speech. The author then proposes a proof scheme that would facilitate the distinction. Finally, the author offers a justification for continued adherence to the distinction in the interest of consumer protection.

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