Volume 17 / Number 3 / 2013



Stephen B. Burbank, Sean Farhang & Herbert M. Kritzer

17 Lewis & Clark L. Rev. 637 (2013)

Our aim in this Article is to advance understanding of private enforcement of statutory and administrative law in the United States and to raise questions that will be useful to those who are concerned with regulatory design in other countries. To that end, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development of private enforcement. We also set forth key elements of the general legal landscape in which decisions about private enforcement are made, aspects of which should be central to the choice of an enforcement strategy and, in the case of private enforcement, are critical to the efficacy of a private enforcement regime. We then turn to the business of institutional architecture, describing the considerations— both in favor of and against private enforcement—that should affect the choice of an enforcement strategy. We lay out choices to be made about elements of a private enforcement regime, attending to the general legal landscape in which the regime would operate, particularly court access, as well as how incentives for enforcement interact with the market for legal services, which has important implications for private enforcement activity. We situate these legislative choices about private enforcement in the context of institutions that shape them. Finally, we seek to demonstrate how general considerations play out by examining private enforcement in two policy areas: legislation proscribing discrimination in employment, and laws protecting consumers from unfair and deceptive practices.


Francine Banner

17 Lewis & Clark L. Rev. 723 (2013)

This Article critiques the application of the Feres doctrine and the policy of judicial deference to military affairs in the context of recent class actions against government and military officials for constitutional violations stemming from sexual assaults in the U.S. military. The Pentagon estimates that 19,000 military sexual assaults occur each year. Yet, in 2011, fewer than two hundred persons were convicted of crimes of sexual violence. In the face of such pervasive and longstanding constitutional violations, this Article argues that the balance of harms weighs heavily in favor of judicial intervention. The piece discusses why, from both legal and justice-based perspectives, the Feres principles are inapplicable to claims of intra-military sexual assault. Further, the Article argues that judicial decisions invalidating the “Don’t Ask, Don’t Tell” policy provide a roadmap for the judiciary in assessing both its proper role in respect of the contemporary armed forces and the institutional obligation to resolve the claims of exceptionally deserving plaintiffs.


Erica Goldberg

17 Lewis & Clark L. Rev. 789 (2013)

Courts are proudly resigned to the fact that the probable cause inquiry is “nontechnical.” In order to conduct a search or make an arrest, police need to satisfy the probable cause standard, which the Supreme Court has deemed “incapable of precise definition or quantification into percentages.” The flexibility of this elusive standard enables courts to defer to police officers’ reasonable judgments and expert intuitions in unique situations. However, police officers are increasingly using investigative techniques that replace their own observational skills with test results from some other source, such as drug sniffing dogs, facial recognition technology, and DNA matching. The reliability of such practices can and should be quantified, but the vagueness of the probable cause standard renders it impossible for judges to determine which error rates are inconsistent with probable cause.

This Article confronts the intersection between quantifiable evidence and the relentlessly fuzzy probable cause standard. It proposes that the probable cause standard be assigned a numerical value as a minimum threshold, especially in cases where probable cause is based on mechanistic techniques that essentially replace a police officer’s own judgment. The Article begins by exploring how the police and courts currently apply the probable cause standard, including courts’ confrontations with probabilities. It then explains why certain evidence should require quantified error rates to establish probable cause and how to properly calculate these error rates. In the final section, the Article argues that assigning a minimum percentage to probable cause would add much-needed clarity to the law and protect against systemic abuses.


DeLeith Duke Gossett

17 Lewis & Clark L. Rev. 839 (2013)

Currently, nearly half a million children reside in United States foster care, some “aging out” without ever having been adopted. As incentive for placing children from foster care in permanent homes, Congress passed a series of legislative measures, including a federal adoption tax credit, that were intended to promote adoption from foster care. However, recent years have seen a cultural trend, led by the unlikely pairing of celebrities and evangelical Christians, towards international adoption. Although the federal adoption tax credit was originally intended to benefit domestic orphans, those who adopt internationally are now receiving the same tax benefits as those who adopt from foster care. This Article examines the historical trends of domestic and international adoption, as well as the current international adoption movement. It looks at the issue from an intermediate approach to social distributive justice theories and asks whether American taxpayers should be underwriting international adoptions when more than 100,000 available children await adoption at home. Ultimately, Professor Gossett concludes that the federal adoption tax credit should not be used to subsidize international adoptions while the very ones who were the originally intended beneficiaries of the legislation—those “lost in the system”—remain there.



Brett Erin Applegate

17 Lewis & Clark L. Rev. 899 (2013)

When a victim of sexual assault recants her accusation against a perpetrator, future perpetrators may attempt to use that recantation as evidence of a prior false rape accusation. However, use of that recantation as such evidence assumes that the victim recanted because her accusation was false, and this is not always the case, and in fact public skepticism of rape accusations furthers the incidence of false recantations by victims. Additionally, a victim’s accusation may lack credibility, and may be perceived as false, because of the effects of rape trauma syndrome. All 50 states have adopted rape shield statutes to protect victims, but their treatment of victims is inadequate, inconsistent, and ignores modern scholarship on the effects of rape on victims. This Comment argues that legislatures should amend their rape shield statutes to specifically address prior accusations in ways that account for the dynamics and realities of sexual assault. The Comment begins by examining the legal and social framework underlying sexual assault, including an examination of the rape shield protections in each state, and then sets forth the substance of proposed legislative reforms and addresses arguments opposed to rape shield reform. The rights and interests of both victims and defendants must be respected, and the only way to successfully balance those rights and interests is through a careful examination of the social realities and legal framework that are present in sexual assault.


Laura Shoaps

17 Lewis & Clark L. Rev. 931 (2013)

With over 27 million individuals enslaved worldwide, human trafficking has increasingly commanded international attention, yet countless traffickers are simultaneously evading identification. The international community shaped our understanding of human trafficking with the enactment of the Palermo Protocol. The United States contributed to this framework by legislating the Trafficking Victims Protection Act. This Comment explores how effectively these two instruments frame our conceptualization of trafficking victims and balance the shared goals of preventing trafficking, protecting victims, and prosecuting traffickers. It further examines the role the United States plays in shaping international human trafficking standards through its annual release of the Trafficking In Persons (TIP) Report and President Obama’s Executive Order Strengthening Protections Against Trafficking in Persons in Federal Contracts. This Comment draws attention to the downfalls of narrowly conceptualizing trafficking victims and prioritizing prosecution over victim protection, while looking optimistically forward at how the use of sanctions as an enforcement mechanism could be efficaciously undertaken through the Executive Order.