Volume 12 / Number 3 / Fall 2008

 

 ARTICLES

After Brown: What Would Martin Luther King Say?

Martha Minow

12 Lewis & Clark L. Rev. 599 (2008)

The occasion of the first Martin Luther King Jr. Day Speech at Lewis & Clark Law School, following on the heels of the Supreme Court’s rejection of two voluntary racial school integration plans, warrants revisiting the conception of equality that called for school integration, the prospects for equal opportunity without education, and remaining arguments for integration. “Integration” here means more than terminating legally-enforced segregation, and more than sheer mixing of people with different races and identities in the same setting. As Dr. King described it, integration involves the creation of a community of relationships among people who view one another as valuable, who take pride in one another’s contributions, and who know that commonalities and synergies outweigh any extra efforts that bridging differences may require. Before the disillusionment accompanying the apparent failure of judicially-mandated school integration, integration was inseparable from access to opportunity as a goal of civil rights reformers from the nineteenth century through the middle of the twentieth. W.E.B. Du Bois and Martin Luther King, Jr. separately emphasized that racially separate instruction by teachers who believe in their students’ capacities would be better than racially-mixed instruction by teachers who disparaged African-American children—but integration would be still better. As even the good arguments for socioeconomic integration reveal, failure to pursue racial integration—including efforts to create truly inclusive communities of mutual respect—can recreate racial segregation through tracking, special education assignments, and students’ own divisions in lunch tables and cliques. Racial integration is informed by demographic changes; making this a multicultural and multi-racial society remains a distinctive goal apart from other efforts to ensure equal educational opportunities. Justice Kennedy’s separate opinion in Parents Involved in Community Schools v. Seattle School District No. 1 along with the four dissenters create a fragile majority that would permit school systems and housing developers to build local schools with the aim of encouraging racial integration, to develop programs designed to attract racially diverse groups of students, and to hold meetings and recruitment efforts to attract diverse groups of students and teachers. Contrary to the Court’s majority opinion, pretending to have achieved color-blind as well as open opportunity—when we have not—disables individuals and communities from understanding what is going on and from becoming equipped to deal with it. In addition to the strategies for integration left open, families and students can choose integrated schools by their residential choices and by making their own lives look like the mass entertainment and ads celebrating integration.

Meriwether Lewis, the Air Force, and the Surge:
The Problem of Constitutional Settlement

Samuel Issacharoff

12 Lewis & Clark L. Rev. 649 (2008)

Much of the Constitution concerns structural divisions of authority among the political branches. Some of the most significant constitutional commands, such as responsibility for warfare, are also the least likely to be presented for judicial review. This Article addresses how constitutional norms come to be created and enforced in areas relatively untouched by dispositive case law. The examples chosen are the authority for the Louisiana Purchase, the creation of an independent Air Force, and the problem of managing the scope of war. The argument is that the institutional accommodations between the branches take on, over time, the role of “constitutional settlement,” a defined set of expectations about the duties and powers of the Executive and Congress. Although necessarily less settled than judicial resolution of cases, the constitutional settlement informs much of the operational structure of our Constitution.

 

ESSAY

Who Mops the Floors at the Fortune 500?
Corporate Self-Regulation and the Low-Wage Workplace

Cynthia Estlund

12 Lewis & Clark L. Rev. 671 (2008)

Rising inequality in the U.S. is reflected and largely created in the labor market, and in the huge and growing disparity in wages and working conditions between the top and the bottom. In particular, the meager and often illegal wages and working conditions in the low-wage labor market pose a threat not only to the well-being of the working poor but to the health of our democratic society. So what is to be done? Both labor law reform that enables workers to form unions and stronger public enforcement of labor standards are essential, but are unlikely to fill the enforcement gap. This Essay finds a partial solution to the problem of underenforcement in the fact that many low-wage workers supply labor—sometimes directly but often through one or more layers of contract—to large firms with prodigious internal regulatory resources and a large stake in their reputations as responsible corporate citizens. The law has already moved, and could productively be pushed further, in the direction of encouraging, shaping, and relying upon compliance structures within regulated entities themselves. Both law and society have also taken steps toward holding large firms responsible for the illegal conditions that prevail at the bottom of their supply chains. But more can and should be done to encourage the large and rich firms that are reaping the greatest profits from globalization to take responsibility for securing decent minimum wages and working conditions for the workers who supply them with essential labor inputs.

 

NOTES AND COMMENTS

May It Please The Justice:
Justice Kennedy and School Desegregation after PICS

Aaron Munter

12 Lewis & Clark L. Rev. 695 (2008)

The 2007 Supreme Court decision in Parents Involved in Community Schools v. Seattle School District No. 1 was a significant milestone in school desegregation, throwing many school district desegregation plans into constitutional question. Parsing the many opinions handed down in the case, a plan likely needs to win the favor of Justice Kennedy—the swing vote between the plurality and the minority—in order for it to survive scrutiny. Using the text of Kennedy’s opinion and some of his past opinions, this Comment applies these sometimes-murky signposts to develop a school district desegregation plan with an increased likelihood of constitutionality post-PICS. Following discussion of the plan fundamentals, it is then applied to a large, urban school district to measure its efficacy.

C is for Confusion:
The Tortuous Path of Section 212(c) Relief in the Deportation Context

Sarah Koteen Barr

12 Lewis & Clark L. Rev. 725 (2008)

The jurisprudence of section 212(c) of the Immigration and Nationalization Act has endured more than five decades of administrative decisions, congressional amendments, administrative rulemaking, and U.S. circuit court and Supreme Court decisions. This Comment discusses the history of section 212(c) as a form of relief under immigration law and critically examines the Board of Immigration Appeals’ jurisprudence in applying section 212(c) relief in the deportation context. Exploring the circuit court split and scrutinizing the rationales underlying the comparable grounds and offense-specific approaches, the author asserts that the comparable grounds approach fails to comport with equal protection, leaving the offense-specific approach as the rational choice in determining eligibility for section 212(c) relief in deportation proceedings.

The Ruse of Rehabilitation: The Supreme Court’s Misconception
of Coercion in Sexual Offender Rehabilitation Programs

Rebecca Johansen

12 Lewis & Clark L. Rev. 763 (2008)

It appears the Supreme Court could use a lesson in psychology. In 2002, the Court held that revoking a prisoner’s privileges and moving him to a higher-security prison in response to his refusal to incriminate himself did not create the “coercion” required for a Fifth Amendment violation. Touting the state’s interest in rehabilitation and effective prison administration, the Court refused to enforce the prisoner’s right to remain silent. This Note takes issue with the Court’s reasoning and offers an alternative approach to the issue, while still using the balancing test set forth by the Court. The author incorporates psychological research into all aspects of the balance and uses pre-McKune precedent to show that the facts of McKune did constitute coercion. The Note also discusses alternatives that would promote the state’s interests without infringing on constitutional rights: immunity, voluntary treatment programs, and programs that do not require admission of crimes.

Ex Parte Young Remedy For State Infringement of Intellectual Property

Abhay Watwe

12 Lewis & Clark L. Rev. 793 (2008)

Unclear standards govern the availability of an Ex parte Young remedy to a plaintiff who sues a state official for intellectual property infringement. This Comment proposes a new test to standardize federal court adjudication of a plaintiff’s Ex parte Young claims. The test provides an analytical framework to assess the sufficiency of the connection between a defendant state official and the alleged infringement. Plaintiffs can also use the test to draft effective Ex parte Young claims making them more likely to survive pre-trial judicial scrutiny.

Abigail Alliance is Not the End:
A Legislative Solution to a Human Problem

Amy Heverly

12 Lewis & Clark L. Rev. 825 (2008)

This year, the Supreme Court denied certiorari in the Abigail Alliance case, crushing the hopes of terminally ill patients, for whom access to experimental drugs was a last hope. For others, though, there is hope for a legislative solution that would allow for access to drugs before they have finished the FDA testing process, without a Supreme Court decision declaring access a constitutional right. This Note suggests an amendment to the existing FDA regulations that would allow access to experimental drugs for patients with less than six months to live who have exhausted all FDA-approved treatment options.

Lobbying Reform: What is the Problem?

Calon Russell

12 Lewis & Clark L. Rev. 853 (2008)

In 2007, Oregon enacted among the most strict government ethics laws in the country. The resulting statutes have created additional controversy, centering on disagreement about what constitutes inappropriate influence in politics. If the problem to be solved centers on reducing influence through prohibiting gifts, the remedy is quite different than if the problem focuses on increasing public disclosure to allow the voters to decide what is, or is not, inappropriate. This Comment assesses both heuristics, recommending adoption of the disclosure approach while discussing the strengths and weaknesses of the current statutory scheme.

Electronic Discovery:
To What Extent Do the 2006 Amendments Satisfy Their Purposes?

Rachel Hytken

12 Lewis & Clark L. Rev. 875 (2008)

In the year and a half since the 2006 amendments to the Federal Rules of Civil Procedure took effect, general counsel across the nation have invested considerable time investigating whether their clients have adequately prepared to deal with electronic discovery issues. A more global question, however, is whether the 2006 amendments adequately prepare courts and practitioners to handle electronic discovery. After years of discussions, workgroups, and drafting, the Committee emerged with amendments addressing four major goals: reducing the burdens and expense of e-discovery, creating rules with the flexibility to withstand future technological advances, designing uniform rules, and providing appropriate guidance. This Comment evaluates the practical success of the amendments in achieving these goals. Beginning with the historical shift that gave rise to the amendments, the Comment then describes the goals of the amendments, then discusses the manner in which the Committee pursued its goals and, looking at the rules in practice, the success of the amendments in achieving those goals.

The Urge to Merge:
A Look at the Repeal of the Public Utility Holding Company Act of 1935

Nidhi Thakar

12 Lewis & Clark L. Rev. 903 (2008)

On February 8, 2006, the repeal of the Public Utility Holding Company Act of 1935 (PUHCA) went into effect. The repeal of this Depression-era law was part of a larger package of new regulations enacted under the Energy Policy Act of 2005, signed into law by President George W. Bush. At the time of its inception, PUHCA provided essential protections for consumers and investors against the questionable business practices of unregulated utility holding companies. Critics of the PUHCA repeal have repeatedly asserted that removal of these regulations will result in a return to holding company abuses such as defrauding investors, loose accounting practices, and carrying excessive debt. Proponents of the repeal believe it signals a new era of growth within the utility sector and carries with it the strong possibility of restructuring in the electric and gas industries. This Comment examines the effects of the PUHCA repeal by analyzing two mega-mergers proposed shortly after the enactment of the Energy Policy Act of 2005. Ultimately, the author concludes that the repeal of PUHCA will result in increased merger and acquisitions activity in the electric and gas industry, but the pace and degree of future mergers and acquisitions will be tempered by the role state public utility commissions play in merger review.