Volume 10 / Number 2 / Summer 2006



Compulsory Education and Substantive Due Process:
Asserting Student rights to a Safe and Healthy School Facility

Rebecca Aviel

10 Lewis & Clark L. Rev. 201 (2006)

This Article asserts that students have a substantive due process right to a public school facility that meets minimum health and safety requirements. Students who cannot afford private school are effectively required by law to spend six to eight hours a day in whatever facilities their state education system provides. Constitutionally protected rights to personal security and bodily integrity are implicated when these facilities directly threaten students’ immediate health and safety—for example, locked or non-functional bathrooms, unsafe drinking water, or classroom walls covered with asthma-inducing mold. Compulsory education under these conditions violates the substantive limits on state action set by the Due Process Clause. 

The Silent Criminal Defendant and the Presumption of Innocence:
In the Hands of Real Jurors, Is Either of them Safe?

Mitchell J. Frank & Dr. Dawn Broschard

10 Lewis & Clark L. Rev. 237 (2006)

This Article uses surveys of actual jurors to analyze jurors’ responses to instructions, focusing specifically on whether and how often real jurors, into whose hands our judicial system ultimately entrusts the presumption of innocence and the Fifth Amendment privilege, applied and upheld them. Additionally, it frames these fundamental protections by their histories, purposes, and applications to shed further light on how effectively these jurors upheld this trust. It concludes that the presumption that jurors follow their instruction is fundamentally flawed, and proposes means for insuring that jurors better understand and apply instructions, particularly in the criminal law realm.

The Secretary Will Deny All Knowledge of Your Actions:
The Use of Private Military Contractors and the Implications
for State and Political Accountability

Saad Gul

10 Lewis & Clark L. Rev. 287 (2006) 

This Article argues that the main issue regarding the use of private military contractors (PMCs) is that of accountability. It begins by exploring the status of mercenaries in international law, as reflected in various conventions, protocols, and state practice. It maintains that contrary to popular belief, the use of PMCs or mercenaries—no matter how defined—is not a violation of international law. However, their use has serious political implications at both the domestic and state levels because it obfuscates the issue of ultimate responsibility. 

Tattoos and Copyright Infringement: Celebrities, 
Marketers, and Businesses Beware of the Ink

Christopher A. Harkins

10 Lewis & Clark L. Rev. 313 (2006)

Tattoos are almost ubiquitous these days, with body piercing likely following closely behind. With advertising increasingly displaying skin—from hip huggers to cropped shirts to a basketball jersey showing an athlete’s tattooed arm—actors, actresses, and sports figures display both forms of body art on television, the silver screen, billboards, and the Internet for consumer product and service providers who hope to benefit from increased sales. But businesses, advertising agencies, and celebrities often lose sight of any interest that tattoo artists may have in the tattoos and body piercings. In this Article, Mr. Harkins uses the recent copyright infringement lawsuit stemming from the advertising use of basketball player Rasheed Wallace’s tattoo to analyze the current state of copyright law’s application to body art. 

Underage Drinking: Does Current Policy Make Sense?

Judith G. McMullen

10 Lewis & Clark L. Rev. 333 (2006) 

This Article examines the history of laws and policies regulating consumption of alcoholic beverages by young people in the United States, and examines youth drinking patterns that have emerged over time. Currently, all 50 states have a minimum drinking age of 21. Various rationales are offered for the 21 drinking age, such as the claim that earlier drinking hinders cognitive functions and the claim that earlier drinking increases the lifetime risk of becoming an alcoholic. While there is sufficient evidence to support the claim that it would be better for adolescents and young adults if they did not drink prior to age 21, research shows that vast numbers of underage persons consume alcoholic beverages, often in large quantities. The Article discusses the question of why underage drinking laws have not been able to effectively stop underage drinking. 

Normally, discussions of underage drinking focus on persons under age 21 as one group. This Article breaks underage drinkers into two groups: minors (drinkers under the age of 18) and young adults (drinkers between the ages of 18 and 21). The Article goes on to separately analyze the two groups’ drinking patterns and reasons for drinking. The Article concludes that prohibitions on drinking by minors could be made more effective because restrictions on activities by minors are expected and normally honored by parents, law, and society. The Article also concludes, however, that the enforcement of a drinking prohibition for young adults between the ages of 18 and 21 is doomed to remain largely ineffective because the drinking ban is wholly inconsistent with other legal policies aimed at that age group. The Article discusses three areas (health care decisions, educational decisions, and smoking) where persons over the age of 18 have virtually unfettered personal discretion, and applies the reasoning of those situations to the decision about whether to consume alcoholic beverages. The Article also compares the total drinking ban for young adults with the graduated privilege policies applied to drivers’ licensing. The Article concludes that the total prohibition of alcohol consumption for young adults is inconsistent with other policies affecting young adults, and this inconsistency, coupled with harms that may come from the 21 drinking age; make the current policies ineffective and ill-advised for young adults between the ages of 18 and 21. 

Free Advertising: The Case for Public
Relations as Commercial Speech

Tamara R. Piety

10 Lewis & Clark L. Rev. 367 (2006)

The commercial speech doctrine, the doctrine establishing a subcategory of protected speech under the First Amendment, has been under increased fire, most prominently in 2003 with Nike v. Kasky, but also in other cases around the country covering a variety of contexts. A key distinguishing attribute of the commercial speech doctrine is that it permits the government to regulate the speech that it covers for its truth. This is precisely what the government may not regulate in the area of political and expressive speech. Many critics would like to see the commercial speech doctrine done away with altogether. They argue commercial speech should be treated like political and expressive speech under the First Amendment. Professor Piety has argued elsewhere that subjecting commercial speech to the same strict scrutiny as political and expressive speech would have far reaching negative consequences. In this Article, Professor Piety addresses a narrower concern: the argument that (assuming efforts to eliminate it altogether fail) the commercial speech doctrine’s application should be expressly limited to “traditional advertising,” excluding corporate speech in the form of public relations. She proposes that this argument is misplaced because the purposes articulated by the Supreme Court in establishing the commercial speech doctrine would be better served by applying it to all marketing-related speech, including public relations.



A Modest Enterprise

Reza Dibadj

10 Lewis & Clark L. Rev. 415 (2006)

This book review discusses The Antitrust Enterprise by Herbert Hovenkamp. While generally praising the book for its refreshing style, its recognition of antitrust’s institutional limits, and its efforts to simplify antitrust doctrine, the book review ultimately criticizes it as unnecessarily wedded to neoclassical economics. The book review discusses similarities between Hovenkamp’s ideas and Chicago school economics, as well as Hovenkamp’s apparent skepticism of post-Chicago thinking. Ultimately, the book review calls for a more dramatic reimagination of antitrust’s role, arguing that neoclassical economics should not be the frontline arbiter of competition policy. Instead, the author urges returning antitrust to its former prominence through the use of distributional and deontological goals, post-Chicago economic methods, and a willingness to contemplate antitrust and regulation as holistic bodies of law.



Casually Finding the Clear and Unmistakable: A Re-Evaluation of  First Options in Light of Recent Lower Court Decisions

Joseph L. Franco

10 Lewis & Clark L. Rev. 443 (2006)

This Comment discusses how an increasing number of courts have misapplied First Options of Chicago, Inc. v. Kaplan’s “clear and unmistakable” evidence standard when deciding who has the authority to determine the arbitrability of parties’ disputes. Further, this Comment suggests that the misapplication threatens to force parties to arbitrate disputes that they did not agree to resolve by arbitration. First, this Comment briefly reviews developments leading up to the Court’s decision in First Options  and then discusses the potential harm that may result from a casual finding of the requisite “clear and unmistakable” evidence, since such a finding forecloses independent judicial review. This Comment asserts that arbitrability determinations in consumer and employment contracts should always be the subject of independent judicial determination, proposes a standard for determining when parties have clearly and unmistakably evidenced an intent to have an arbitrator decide whether any disputes are arbitrable, and proposes a framework that courts may use in addressing challenges to the arbitrability of disputes. 

Walking the Line: The Rehnquist Court’s Reverence for Federalism and Official Discretion in DeShaney and Castle Rock

Megan Grill

10 Lewis & Clark L. Rev. 487 (2006) 

As the Rehnquist Court era has come to a close, a retrospective study of the Court’s jurisprudential legacy is inevitable and appropriate. Although legal commentators will pay much attention to the role federalism played in the Court’s reallocation of powers between the state and federal governments, the impact of the Rehnquist Court’s strong federalism doctrine on the individual should not be overlooked. This impact is felt very strongly in the Court’s adjudication of section 1983 due process claims where the plaintiff seeks to hold the state accountable for injuries inflicted by third parties. The Rehnquist Court passed directly on such claims in DeShaney v. Winnebago County Department of Social Services  and the more recent Town of Castle Rock v. Gonzales, and determined that the government has no constitutional duty to protect the individual from harm inflicted by those private actors. This Comment explores how the Rehnquist Court came to such a conclusion and specifically focuses on the Court’s reverence for the preservation of official discretion, even where the state has expressly sought to limit that discretion. Further, this Comment looks at the way in which the Rehnquist Court uses state law as a limiting principle in narrowing the scope of section 1983. Hopefully, such a discussion demonstrates that federalism principles, which are often thought of as too abstract or only affecting the balance of power between the state and federal government do in fact touch on the relationship between the state and the individual on a very personal level.