Volume 11 / Number 3 / Fall 2007



Will Justice Delayed Be Justice Denied? Crisis Jurisprudence,
the Guantánamo Detainees, and the Imperiled Role of Habeas
Corpus in Curbing Abusive Government Detention

Christopher J. Schatz & Noah A. F. Horst

11 Lewis & Clark L. Rev. 539 (2007)

In June of 2007, the Supreme Court abruptly reversed its earlier decision and granted certiorari in the Guantánamo Bay detainee case, Boumediene v. Bush. Legal scholars anticipate the Court will now address the issue that has been lurking in the background of the detainee litigation since the Court’s decision in Rasul v. Bush: does the Constitution mandate that the writ of habeas corpus is available to aliens held in military detention facilities outside the territorial boundaries of the United States, but nevertheless within its sovereign jurisdiction and control?

In this Article, the authors contend that the Constitution requires that federal court jurisdiction exist with respect to habeas claims of unlawful detention raised by the Guantánamo Bay detainees, notwithstanding their classification by the Executive Branch as unlawful enemy alien combatants. The authors support their contention with a number of propositions drawn from the text and history of the Constitution. First, the power to grant a writ of habeas corpus is an essential and inherent incident of the judicial power of the United States that cannot be impaired, except in times of rebellion or invasion, without violating the Suspension Clause contained in Article I, Section 9, clause 2 of the Constitution. Second, because sovereignty is manifested by the exercise of power within a legal and political space, and not simply by the boundaries of a physical or territorial place, the Guantánamo Bay Navel Station is subject to the limitations imposed by Due Process on Executive Branch detentions. Third, the Constitution and binding jus cogens principles of international law protect the legal identity of all individuals by, in part, prohibiting indefinite detention without an independent judicial determination of cause. Fourth, insofar as the tripartite structure of government established by the Constitution contemplates habeas corpus as a critical judicial check on unitary Executive Branch detention activity, impairment of that function violates the separation of powers doctrine.

Invoking these propositions, the authors argue that the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 are unconstitutional to the extent they abrogate the jurisdiction of the federal courts to entertain the habeas petitions of the Guantánamo Bay detainees. These Acts permit indefinite detention—an action unparalleled in American history, and contrary to the rule of law and values of this Nation. Because indefinite detention destroys the legal identity of human beings, the authors urge the Supreme Court to restore the writ of habeas corpus to its intended function in the Constitutional scheme established by the Founders.

Expanding Preferential Treatment Under the Record
Rental Amendment Beyond the Music Industry

Ryan Vacca

11 Lewis & Clark L. Rev. 605 (2007)

This Article explores the development of copyright law’s first sale doctrine and the Record Rental Amendment (RRA) in light of the Sixth Circuit’s interpretation of the RRA in Brilliance Audio, Inc. v. Haights Cross Communications, Inc. This Article does not take issue with the court’s conclusion, but instead uses the differing conclusions of the majority and dissent to illustrate that the RRA exception is in need of Congressional clarification. This Article also examines whether the Record Rental Amendment should be amended to include audiobooks and other non-musical works, concluding that they should. The author then proposes two alternative amendments to the RRA; one to expand its scope to cover non-musical phonorecords, and one to clarify that it does not.

From Theory to Practice:
Analyzing Equitable Estoppel Under a Pluralistic Model of Law

T. Leigh Anenson

11 Lewis & Clark L. Rev. 633 (2007)

This Article applies new legal theory to the old topic of equity as a method for understanding equitable estoppel. It explains the pluralistic model of law popularized by legal theorists and then applies that method of legal reasoning to equitable estoppel. In particular, precedent, tradition, and policy analysis are used to evaluate the defense and offer insight into its application. This Article concludes that studying equitable estoppel from the perspective of a pluralistic model of law helps develop the defense and transition it into the twenty-first century.

The Lawfulness of Criticizing Big Business: Comparing Approaches
to the Balancing of Societal Interests Behind Trademark Protection

Katja Weckström

11 Lewis & Clark L. Rev. 671 (2007)

Today, third parties that have not traditionally been subject to trademark law increasingly find themselves as defendants in trademark infringement law suits. Whether the sole culprit or not, strong international trademark protection has unevenly influenced national trademark regulation and the lack of emphasis and clear reference to limits on the acquired right has left courts struggling with how to balance conflicting interests in the use of marks. This Article goes back to the source, i.e. international trademark law, in an attempt to locate the limits of trademark law, expressed or implied, and ascertain whether there exists a common understanding of when trademark protection is legitimately afforded and when it is not.

After conducting a theoretical and practical comparison of alternative approaches to balancing competing rights, this Article argues that an international common core of trademark protection is inherent in existing international rules. However, this Article concludes that this common core mandates a re-evaluation of the traditional approach to trademark interpretation. The author introduces a systemizing tool designed to aid judges in securing the realization of no more and no less than the international common core of trademark protection in the national application of trademark law.

Re-evaluation is necessary to avoid the harmful results that the traditional categorical approach produces in relation to this new group of defendants, as well as to repair the doctrinal damage incurred from forceful attempts to fit these cases into existing doctrine. The proposed systemizing framework introduces the flexible analytical tools needed to service the global marketplace in striking an adequate balance between equally important conflicting interests in society.

Come Hell and High Water:
Can the Tax Code Solve the Post-Katrina Insurance Crisis?

Christine L. Agnew

11 Lewis & Clark L. Rev. 701 (2007)

As Americans struggle to appreciate the full extent of the damage and destruction caused by Hurricane Katrina, a terrifying question resonates with a shell-shocked nation: what is the next major disaster? Forecasters have been quick to respond with a laundry list of the most unimaginable disasters with price tags ranging from –0 billion dollars apiece. Imagine what would happen if these catastrophes occurred back-to-back like they did during the 2004 and 2005 Atlantic hurricane seasons.

Prior to Katrina, the thought of a disaster causing a twelve-digit loss was unfathomable. Today, catastrophe modelers consider such a loss inevitable and the only question that remains is who will bear it. Congress is particularly concerned since the private insurance industry began bailing out of markets with a history of, or potential for, natural disasters. If these markets are uninsured and disaster strikes, the majority of this enormous loss could fall to the insurer of last resort—Uncle Sam. In an attempt to deal with the insurance crisis, Congress proposed a four-part National Catastrophe Plan that, inter alia, involves amending the Tax Code to allow insurers and homeowners to deduct amounts set aside to pay for losses arising from a natural disaster. The purpose of the proposed legislation is to increase the availability and affordability of private insurance in peak risk areas and to reduce the risk of insurer insolvencies following disasters.

This Article provides an extensive legal and economic analysis of the post-Katrina insurance crisis and considers what impact (if any) the Tax Code can have on the crisis. This Article describes recently proposed tax legislation that attempts to solve the crisis by amending the Tax Code and explains why this proposed legislation would provide insurers with a windfall. Most importantly, this Article uses the proposed tax legislation as a poignant example of why subsidizing insurance costs through the Tax Code threatens to destabilize an otherwise stable insurance industry.



Parallel Proceedings: The Government’s Double-Team Approach
and the Degradation of Constitutional Protections

Christian Babich

11 Lewis & Clark L. Rev. 753 (2007)

This Comment discusses how the United States Department of Justice is abusing cooperation between itself and the Securities and Exchange Commission to obtain information and advantage in corporate criminal fraud investigations, in violation of individual constitutional rights. The early advantages of such parallel proceedings have been outweighed by the government’s ability to use these proceedings as an end run around a defendant’s Fifth Amendment right against self-incrimination. The U.S. Supreme Court’s answer to the narrow question posed in the seminal decision of United States v. Kordel has been used by the Department of Justice to expand the scope and reach of parallel proceedings beyond anything contemplated by the Court. The Court’s refusal to clarify Kordel has allowed the Department of Justice to take advantage of confusion among lower courts. Many lower court decisions allow the government to employ subterfuge or to outright lie to defendants in order to secure their cooperation. This Comment takes the position that in using this “double-team approach,” the government incurs, in the very least, a duty not to lie.

The Ninth Circuit’s Interpretation of the Administrative Procedure
Act’s Final Agency Action Requirement: Oregon Natural Desert Association v. United States Forest Service

Sarah Stauffer Curtiss

11 Lewis & Clark L. Rev. 781 (2007)

On September 21, 2006, the Ninth Circuit Court of Appeals decided Oregon Natural Desert Association v. United States Forest Service, reversing the Oregon District Court’s decision and concluding that the administrative actions at issue in the case constituted final agency actions under section 704 of the Administrative Procedure Act. This Note examines the Ninth Circuit’s final agency action analysis in Oregon Natural Desert Association v. United States Forest Service, arguing that the Ninth Circuit’s approach—under which even routine agency management tools such as annual operating instructions constitute final agency actions—will make it difficult for agencies to carry out their day-to-day duties and to work out compliance with their statutory mandates. This Note concludes that the Ninth Circuit’s interpretation of the final agency action requirement does not comport with either the purpose of APA review or the practical requirements of managing grazing on the public lands.

Family Unity in Immigration Law: Broadening the Scope of “Family”

Monique Lee Hawthorne

11 Lewis & Clark L. Rev. 809 (2007)

Throughout history, the U.S. government has claimed to stand by a strong policy of family reunification. After providing a brief overview of U.S. immigration policy and regulation since the 1800s, this Comment examines the existing statutory framework for family reunification. The author argues that legislation passed by the U.S. Senate in late-May 2006, fails to take family reunification into consideration and, if codified into law, would cause major upheaval in familial structures for mixed-status families, i.e. families consisting of a mix of legal immigrants, undocumented immigrants, naturalized citizens, and U.S.-born citizens.

Focusing on the impact of limitations imposed by a narrow definition of the concept of “family,” this Comment argues that current U.S. immigration policy incorrectly focuses on a static concept of family that excludes family models presently existing in the United States, thereby failing to achieve family reunification. To solve this problem, the author argues that the United States should aim to adopt statutory definitions of “family” similar to those used in Canada. This Comment concludes that to better effectuate its policy of family reunification; Congress must expand the concept of “family” beyond the outdated and narrow definition currently in use.