Volume 10 / Number 3 / Fall 2006



Fear, Legal Indeterminacy and the American Lawyering Culture

Michael Hatfield

10 Lewis & Clark L. Rev. 511 (2006) 

On August 1, 2002, then Assistant Attorney General Jay S. Bybee signed for President Bush a memorandum of law concluding that some torture was not necessarily illegal if the President ordered it. This Essay examines how Bybee could arrive at a conclusion that is fundamentally at odds with both our national moral spirit and our law. In doing so, it cautions American lawyers to recognize the difference between what is “legal” and what is “arguably legal,” and to be aware of their own extra-legal biases when interpreting the law.



Confrontation After Crawford v. Washington: Defining “Testimonial”

Michael D. Cicchini & Vincent Rust

10 Lewis & Clark L. Rev. 531 (2006)

When the state offers hearsay into evidence against a criminal defendant, the defendant’s constitutional right to confrontation is implicated. Under the test expressed in Ohio v. Roberts, that right to confrontation could be overcome by a judicial determination that the state’s proffered hearsay was reliable. Recognizing that the Roberts standard was vague and manipulable, the Court in Crawford v. Washington aimed to remove judicial discretion in lower court rulings by implementing a new framework for determining whether hearsay could be admitted against a defendant. It held that if the proffered statement is “testimonial” then it must be subject to cross-examination. Unfortunately, the Court declined to define testimonial, and in doing so has perpetuated the need for judicial discretion in determining the admissibility of hearsay. The Authors suggest that the Court should define testimonial to include all accusatory hearsay. Only a broad definition, they argue, will satisfy the text, purpose, and history of the Confrontation Clause as well as Crawford’s goal of constraining judicial discretion.

Price and Prejudice: The Case Against Consumer
Equality in the Information Age

Matthew A. Edwards

10 Lewis & Clark L. Rev. 559 (2006)

Due to technological advances and changes in markets for consumer goods and services, the ability of firms to engage in various forms of price discrimination has increased greatly in recent years. At the same time, consumer awareness and resentment of these practices—which go under names such as dynamic, differential, and personalized pricing—also has risen. Despite consumer antipathy, most forms of price discrimination are not unlawful when applied to end-use purchasers of consumer goods or services. This Article aims to demonstrate why the current state of affairs might reflect good public policy. To do so, it surveys the economic concept of price discrimination and explains why firms are motivated to price discriminate, what methods they use to do so, and the impediments firms face in their efforts to engage in price discrimination. The Article then analyzes the current legal regulation of price discrimination, including the Robinson-Patman Act, and explains why the law typically does not prohibit merchants from engaging in differential pricing for end-use consumers. After reviewing the economic and legal concepts of price discrimination, this Article uses traditional economic analysis to explain why a rigidly enforced principle of equal treatment, while superficially appealing to consumers, would forbid potentially beneficial price discrimination practices. The Article concludes by suggesting (without endorsing) other legal norms that can be used to guide consumer pricing law including minimizing normatively undesirable wealth distribution, maximizing overall consumer welfare, protecting privacy rights, and eradicating invidious forms of discrimination. This will demonstrate that a vigorous anti-equality stance is neither inimical to consumer rights nor incompatible with progressive critiques of laissez faire approaches to contract law.

The Dangerous Intersection of Independent Contractor
Law and the Immigration Reform and Control Act:
The Impact of the Wal-Mart Settlement

John A. Pearce II

10 Lewis & Clark L. Rev. 597 (2006)

An estimated 7.2 million undocumented immigrants are currently employed in the United States. These workers commonly find jobs in low-wage, labor intensive industries. Many of these jobs are with smaller firms that work as independent contractors to larger businesses. The intersection of the two phenomena—readily available, cheap, illegal laborers and a high demand for cheap, desperate laborers—creates a tempting opportunity for uninformed, careless, or unscrupulous employers. Perhaps emblazoned by shifting political priorities, from the Clinton Administration’s “catch and release” policy to the Bush Administration’s pledge to “return every illegal entrant we catch at the border, with no exceptions,” illegal aliens continue to find employment in record numbers in direct violation of federal laws.

To help better understand the potential for unintended violations of the Immigration Reform and Control Act and of independent contractor law, this Article investigates the responsibilities of an employer in its relationships with independent contractors to assure that workers are legally eligible for employment. Further, this Article analyzes the shifting priorities of the U.S. government in enforcing the laws on illegal workers as foreshadowed by a 2005 agreement in which the government required Wal-Mart to make an million cash payment and to accept three weighty enforcement burdens in exchange for dropping charges that Wal-Mart knowingly used independent cleaning contractors that employed illegal aliens. Finally, this Article explores the relative merits of strategies that a business can employ in efforts to balance control of its hiring practices with exposure to liability for hiring illegal aliens.



The Futile Debate Over the Morality of the Death Penalty: A Critical Commentary on the Steiker and Sunstein-Vermeule Debate

Daniel R. Williams

10 Lewis & Clark L. Rev. 625 (2006)

The current issue of the Stanford Law Review reveals (or at least may spark) a surprising resurgence of interest in the morality of the death penalty, an interest different from the empirical inquiry into the effectiveness and reliability of capital punishment as a penological tool. With her deontological moral outlook, noted abolitionist Professor Carol Steiker takes aim at Professors Cass Sunstein and Adrian Vermeule’s consequentialist argument that if recent studies showing the significant deterrent impact of the death penalty are valid, then we are morally bound to accept capital punishment as a government crime-fighting tool. I contend that a deontological critique of the Sunstein-Vermeule claim, which is rooted in consequentialist ethics, must fail when it comes to the moral question of capital punishment.

Steiker’s effort to debunk Sunstein and Vermeule’s bold contention nicely illuminates why abstract moral theorizing is futile when it comes to capital punishment. She agrees with Sunstein and Vermeule that we must abandon the act-omission distinction when it comes to evaluating the moral worthiness of government policy options. I show that Steiker’s concession to abandon the act-omission distinction—a distinction crucial to deontology—dooms her critique of Sunstein and Vermeule’s consequentialist claim that the death penalty is morally obligatory. I also show that Sunstein and Vermeule’s argument is pure question-begging, that their collapse of the act-omission distinction to drive their moral argument smuggles in the unproved assumption that the death penalty is already morally justified. The lesson here is that moral claims about the death penalty arising from a deontological or consequentialist foundation inevitably collapse under the weight of real life. This 6,000-word article calls for continued focus on the realities of the death penalty as a practice, and thus discourages futile argumentation over that practice by resorting to abstract moral theorizing.



Beyond “Persons, Houses, Papers, and Effects”: Rewriting the
Fourth Amendment for National Security Surveillance

Elizabeth Gillingham Daily

10 Lewis & Clark L. Rev. 641 (2006)

Although the goal of national security surveillance is to protect the nation against terrorist acts such as the September 11, 2001 attacks, the Patriot Act amendments to the Foreign Intelligence Surveillance Act (“FISA”) have been interpreted to permit surveillance where the primary purpose of the surveillance is criminal prosecution and not foreign intelligence. FISA surveillance may now be used as a tool for prosecution of any foreign intelligence crime or crime that is inextricably linked with foreign intelligence. It does not require the government to establish any likelihood that evidence of a crime or a threat to national security will be found and places immense power in the hands of law enforcement to intrude on that individual’s privacy. This Comment discusses the unique concerns national security surveillance under the Fourth Amendment poses and concludes that additional safeguards are needed to protect the rights of both individuals and the government.

Constitutional Fact Finding and the Appropriate Use
of Empirical Data in Constitutional Law

Shawn Kolitch

10 Lewis & Clark L. Rev. 673 (2006)

In evaluating the constitutionality of a law, the Supreme Court often considers the purpose and effects of the law. This is the case, for instance, in the areas of interstate commerce, equal protection, and substantive fundamental rights, among others. In such cases, empirical data, such as data compiled by social scientists, may be highly relevant to the Court’s analysis. However, the Court has been inconsistent in its consideration of empirical data, often misinterpreting available data, and frequently making assertions of fact without any empirical support at all. In some cases, these unsupported assertions appear contrary to both common sense and existing empirical studies, yet they can have a profound impact on the law.

This paper considers the role of empirical data in constitutional law, and proposes that both lack of judicial candor and fundamental tensions between legal and scientific principles contribute to the Supreme Court’s inconsistent and often flawed methods of considering empirical data. After examining in detail the role of empirical data in the Court’s criminal procedure jurisprudence, the author concludes that 1) the Court should clearly articulate the areas of law in which it believes empirical data is relevant; 2) the Court should consider only peer-reviewed empirical studies and should have access to a scientific advisory committee to help evaluate the reliability of studies under consideration; and 3) a selective relaxation of the Court’s stare decisis doctrine is an appropriate mechanism for overcoming the inherent conflict between the scientific method—which requires an evolving understanding of empirical data—and the judicial preference for finality.

Exceptions to Employment Division v. Smith: A Need for Change

Jack Peterson

10 Lewis & Clark L. Rev. 701 (2006)

Employment Division v. Smith states that a facially neutral law that indirectly has a negative impact on an individual’s Free Exercise of religion need only be subjected to rational relationship scrutiny to be found constitutional. There are two exceptions to this rule. One is in the unemployment benefits context and the other is where the Free Exercise claim is combined with other constitutional claims. These exceptions receive strict scrutiny. This Comment discusses how the two exceptions to Smith inadequately protect an individual’s Free Exercise rights and concludes that all Free Exercise claims should be evaluated under intermediate-level scrutiny. This strikes the proper balance between the need to protect the individual’s Free Exercise rights and the need to allow states to pass neutral, generally applicable laws.