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CORK Bibliography: Court Cases

104 citations. January 2003 to present

Prepared: January 2008

Abrams JD. A missed opportunity: Medical use of marijuana is legally defensible. Case Note: United States V. Oakland Cannabis Buyers' Cooperative, No. 00-151, 2001. Capital University Law Review 31: 883-914, 2003. (285 legal refs.)

Congress' "war on drugs" has severely undermined the acceptability of the medical use of marijuana, even though marijuana has long been used for medical purposes. ... The CSA provides the authority for the Justice Department to control drug abuse and makes it unlawful to "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense any controlled substance" except as authorized by the CSA. ... If a fundamental right is implicated by the government's denial of medical marijuana use, the Court will apply strict scrutiny review. ... On remand, the district court modified the injunction and provided for a medical necessity exception. ... Yet the Court simply announced that, because marijuana is a Schedule I substance, there is no current medical use and, therefore, Congress did not intend to allow for a medical necessity defense. ... A seriously ill patient may be able to cultivate and possess marijuana and employ the necessity defense. ... The Court simply concluded that because marijuana is a Schedule I substance, and Schedule I substances have no "current medical use," the CSA does not recognize a medical necessity defense. ... The federal government's position with respect to medical use of marijuana is fundamentally mistaken.

Alderman J; Daynard RA. Applying lessons from tobacco litigation to obesity lawsuits. (review). American Journal of Preventive Medicine 30(1): 82-88, 2006. (30 refs.)

This discussion examines the use of litigation as a strategy to protect the public health. The history of tobacco litigation provides a model to evaluate potential litigation strategies against other industries that pose a threat to public health, particularly the food industry. This paper demonstrates that although legislation would be a preferable solution, lessons from the tobacco wars suggest that effective national legislation is unlikely at the present time. Based on the differences and similarities between the tobacco and food industries, it predicts the effectiveness of particular kinds of obesity litigation and the food industry's likely response. The tobacco industry has vigorously fought individual injury lawsuits and has had remarkable success in resisting such cases. The food industry is likely to successfully employ a similar "scorched earth" litigation strategy in individual injury cases. However, the tobacco industry did agree to the Master Settlement Agreement in the lawsuits brought by the state attorneys general because they were a unique kind of litigation with a finite number of plaintiffs. Likewise, state lawsuits under consumer protection acts may be a distinct type of litigation that permits cases to focus on deceptive advertisements while avoiding complicated causation issues. Such lawsuits have the potential to be a useful tool to fight obesity and enlist the efforts of the food industry in resisting the epidemic. Understanding the lessons of tobacco can save public health advocates much time and many resources and thus allow tobacco litigation to benefit public health in new ways.

Anderson LC. Direct shipment of wine, the commerce clause and the Twenty-first Amendment: A call for legislative reform. Akron Law Review 37: 1-39, 2004. (225 legal refs.)

Many states prohibit out-of-state sellers of wine from shipping their product directly to consumers, but permit in-state wine producers to engage in such direct shipment. Recent lower federal court decisions have cast serious constitutional doubt upon the authority of a state to discriminate in this manner against wine producers and sellers from other states in favor of its own domestic wine industry. This issue appears headed for the Supreme Court of the United States in the near future. The outcome cannot be foreseen with certainty, but it is likely the Court will find this discrimination unconstitutional. Part II of this Article describes the nineteenth century struggle between the Prohibition movement and the alcoholic beverage industry that fostered a complex history of court decisions limiting state authority in this area under the aegis of the Commerce Clause, and congressional attempts to abrogate these decisions. This struggle culminated in the adoption of the Eighteenth Amendment, which established a nationwide regime of Prohibition. Part III discusses the reasons why Prohibition was a failure, thus prompting adoption of the Twenty-first Amendment, and also traces the evolution of the Court's interpretation of that Amendment to the current approach, which seeks to accommodate its principles to the principles of the Commerce Clause. Part IV provides an account of the Court's general treatment of state laws that afford less favorable treatment to interstate commerce than to intrastate commerce. Part V canvasses the current litigation challenging direct shipment laws in various states, and the judicial decisions in those cases. Part VI provides an analysis of the arguments on both sides of the issue and contends that the Supreme Court is likely to hold such laws unconstitutional. The Article concludes that states with such laws should now begin the process of repealing their laws banning direct shipment of wine from out-of-state sources and replacing them with regulatory schemes that permit direct shipment but assure that applicable taxes are paid and other valid state interests are protected.

[Anon]. Nevada Supreme Court Orders: Order of stayed suspension with conditions. Nevada Lawyer 13: 44+, 2005. (7 legal refs.)

This column reports the outcome for an attorney with an alcohol problem. The attorney was ssued a stayed 30 day suspension, subject to successful completion of a one-year probation with multiple conditions, including random alcohol testing, participation in Lawyers Concerned for Lawyers and Alcoholics Anonymous, and reimbursement of costs arising directly from misconduct and from the disciplinary proceedings.

Anon. Riddick v. City of New York, 2004 N.Y. App. Div. NYLS citylaw 10: 60, 2004

NYPD terminated alcoholic cop after he committed multiple violent acts. Throughout his thirteen-year tenure with the NYPD, Ernest Riddick was charged with multiple violent crimes, including separate assaults of his estranged wife and his girlfriend. In response the NYPD imposed sanctions against Riddick, referred him to the Alcohol Counseling Service Unit, and placed him on probation. Riddick broke the probation period and was fired. Riddick sued the City, claiming it discriminated against him because of his alcohol dependency and breached its duty to rehabilitate him. The lower court denied the City's motion to dismiss but the First Department reversed. The court ruled that, while alcoholism was a disability under the state Human Rights Law, the City gave Riddick multiple opportunities at rehabilitation before terminating him, and Riddick's alcoholism did not immunize him against being terminated for his violent actions.

Armstrong A. Drug courts and the de facto legalization of drug use for particpants in residential treatment facilities. Journal of Criminal Law and Criminology 94(Fall): 133-167, 2003. (224 legal refs.)

Because treatment facilities do not report on-site drug offenses to the police, but to drug courts, and because prosecutors will generally not bring new criminal charges against a drug court participant when treatment facility personnel report her relapse to the drug court, drug court participants undergoing residential treatment enjoy a practical immunity from prosecution. ... This part of the Comment examines the facts of Bush's case and the circuit court's reasoning in holding that drug court participants undergoing residential treatment are legally insulated from criminal prosecution of their relapse-related drug use. ... As a first-time, non-violent offender, Bush was eligible for participation in one of Florida's pretrial substance abuse education and treatment intervention programs, more commonly known as a drug court. ... This Comment argues that, because there is currently no legal basis providing for the immunity of relapsing drug court participants in residential treatment facilities, states should amend their statutes enabling drug courts to reflect the practical reality that such participants are immune from prosecution for drug use during court-supervised treatment. Not only is immunity for relapse-related use important to the continued vitality and success of drug courts, but a political recognition that drug courts treat drug use very differently from the rest of the criminal justice system would prompt public debate on a policy that is currently being applied sub silentio. Part I of the Comment examines the rapid, decentralized rise of drug courts and details their common features, including limited eligibility and removal of the participant from the criminal justice system. Part II examines the legal issues presented by the uncertain legal status of drug-using participants undergoing residential treatment through the lens of Noelle Bush's recently completed involvement with Florida's drug court system. Part III considers the effect of 42 U.S.C. 290dd-2 in assuring confidentiality for individuals undergoing drug treatment in residential facilities, and concludes that, because the statute cannot be reasonably interpreted to shield drug court participants from investigation of relapse-related drug offenses, the continued vitality of drug courts should rest on stronger, and more transparent, statutory grounds.

Ashdown GG. The blueing of America: The bridge between the war on drugs and the war on terrorism. University of Pittsburgh Law Review 67(Summer): 753-802, 2006. (342 legal refs.)

Summary. This article examines a trend toward permissive police investigatory practices and the concomitant loss in privacy rights this entails. The trend which is currently justified as important in "the war on terror" is seen as having its origin in the "war on drugs." Historically, this phenomenon has its origins in the proliferation of drug usage in the country: first marijuana, hallucinogenic drugs, and amphetamines during the counterculture years of the late '60s and '70s, and later powder and then crack cocaine. ... The definition of probable cause was diluted, and the standards on what constituted a law enforcement search or seizure were drawn narrowly. ... This "no search" casualty to privacy in the War on Drugs has tremendous potential for application to video surveillance and new surveillance devices such as weapons detectors, and facial and vehicle character recognition technology. ... Justice Stevens's majority opinion not only followed established precedent that a dog sniff was not a search for Fourth Amendment purposes, but also rejected the Illinois Supreme Court's conclusion that the use of the dog converted a lawful traffic stop into a different drug investigation not supported by reasonable suspicion. ... The major difference between the two provisions is that Title III has extensive probable cause, particularity, minimization, and termination requirements regarding the commission of federal domestic crime, whereas FISA requires only a showing of probable cause that the target is a foreign power or agent of a foreign power and, originally, certification that "the purpose" of the surveillance was the gathering of foreign intelligence information.

Banks RR. Beyond profiling: Race, policing, and the drug war. Stanford Law Review 56: 571-603, 2003. (201 legal refs.)

The political consensus in opposition to racial profiling in drug interdiction has fueled efforts to identify and eliminate the practice. ... This Article aims to reorient debate about race, policing, and the drug war by critically examining the focus on racial profiling that burdens the innocent. ... Instead, policy analyses should consider the race-related consequences of the drug war, without regard to whether officers engage in racial profiling. ... Second, the problems most commonly associated with racial profiling - the widespread investigation and mistreatment of racial minorities and the tension between racial minority communities and law enforcement agencies - do not necessarily turn on whether officers engage in racial profiling. ... If officers investigate people wholly on the basis of criteria that are statistically unrelated to criminality, then the hit rate would equal the crime rate. ... If one believes that those outcomes are objectionable, then one should be more likely to declare them the result of discrimination. ... The belief that one has been racially profiled often reflects the feeling that one has been mistreated by a law enforcement officer. ... My primary purpose, however, has been to counter the tendency to reduce questions of race, policing, and the drug war to questions of racial profiling. This Article is organized into five parts. Part I describes the campaign against racial profiling. Part II reexamines the claim that racial profiling in drug interdiction is usually irrational. Part III justifies the abandonment of the racial profiling inquiry in favor of a focus on the consequences of drug policy and policing practices. Part IV sketches the social harms of the racial concentration of incarceration. Part V discusses the political appeal of the campaign against racial profiling.

Bekiares JA. Constitutional law. Ratifying suspiconless canine sniffs: Dog days on the highways. llinois v. Caballes, 125 S. Ct. 834 (2005). Florida Law Review 57: 963-972, 2005. (105 legal refs.)

An Illinois State trooper pulled Respondent over for traveling 6 miles per hour in excess of the speed limit. Meanwhile, a second trooper, who was part of the Illinois State Police Drug Interdiction Team, overheard the transmission and informed the dispatcher that he was going to bring his canine unit to the scene to conduct a sniff. The Supreme Court considered this approach acceptable, and it specifically recognized that reasonable suspicion could be used to justify brief seizures of any baggage suspected of containing contraband or evidence of a crime. In Kyllo v. United States, the Court considered whether a thermal imaging device could be used by police to determine the relative amount of heat emitted in a residence, in an attempt to detect if marijuana was being grown inside. ... In rejecting the application of the Terry standard to the instant case, the Court chose instead to answer the question that it had left open in Edmond: whether a suspicionless canine sniff at an otherwise lawful traffic stop constitutes a search.

Blaufuss JR. A painful Catch-22: Why tort liability for inadequate pain management will make for bad medicine. William Mitchell Law Review 31(3): 1093-1132, 2005. (136 refs.)

Several commentators have advocated for a new cause of action against medical care providers who fail to appropriately treat pain. ... The potential harms include: patient addiction to opioid analgesics, premature patient death due to inhibition of respirations in weakened patients, compromised mental status of the patient, diversion of controlled substances from the patient to a drug abuser, abuse of controlled substances acquired fraudulently by patients, administrative discipline, and criminal and/or civil liability for the physician for providing abused drugs. ... A judicially imposed standard of care and duty for physicians to relieve pain would likely not take into account specific statutory restrictions on physicians such as the New York State Controlled Substance Act. ... In the context of inadequate pain management, the basic individual moral rights justification for expanding tort liability is that the patient unnecessarily suffered pain that could have been prevented but for the physician's improper pain management. ... Tort liability for inadequate pain management has the potential to penalize a physician for choosing, based on his or her own moral and ethical beliefs, not to hasten patients' deaths. ... Once the average physician's pain management practices are in line with recommended guidelines, it is possible that tort liability for inadequate pain management could be socially useful in some situations. Part I of this note reviews current issues relating to pain treatment. Part II examines theoretical justifications of proposed tort liability for inadequate pain management. Part III examines how pain mismanagement does not fit within traditional notions of medical malpractice. Part IV studies the issues relating to a physician's role as "gate-" for opioids and suggests why tort liability could compromise this legislatively imposed role. Part V examines the issue of pain management in the context of end-of-life care. Part VI discusses current shifts in pain management philosophies and explains how these movements will effectuate the changes suggested by advocates of expanded tort liability.

Bleich J; Friedland M. The Supreme Court on dope: A balancing act between two doctrines. The Oregon State Bar Bulletin 65: 15-17, 2005. (2 refs.)

This brief Note discusses the rationale underpinning the Supreme Court's response to medical marijuana cases that it has heard. On Nov. 29, (2004) the Supreme Court heard its second case in four years about the medical use of marijuana. In the last case, United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001), the Court unanimously found that the federal Controlled Substances Act does not have an implied exception for marijuana that is manufactured or distributed solely for medical reasons. This term's case, however, raises a more fundamental constitutional question about how far the federal government may go in regulating drug activity at all. After decades of deferring to the federal government in regulating drug use, Ashcroft v. Raich asks the Court to choose between two hallmarks of the Rehnquist Court's federalist jurisprudence: the principle that there are enforceable limits to Congress's authority under the Commerce Clause, and the Court's consistent deference to the legislative branch in waging the "war on drugs."

Bogen K; Biener L; Nyman A. Consequences of marketing exceptions in the Master Settlement Agreement: Exposure of youth to adult only tobacco promotions. Nicotine & Tobacco Research 8(3): 467-471, 2006. (17 refs.)

The Master Settlement Agreement between a consortium of tobacco companies and 46 states contains many restrictions on tobacco sales and advertising that were designed to reduce youth exposure to tobacco promotions. Most of the restrictions include an exception for "adult-only'' facilities. The present study investigated the extent to which youth are being exposed to marketing that is presumably limited to adults. Using data from a statewide random-digit-dialed survey of 3,863 Massachusetts youth aged 12-17 years, we found that about half of all youth in this age group reported seeing cigarettes advertised at events, concerts, bars, or clubs in the past 12 months, and that about 5% of youth in this age group reported being present at a venue where free samples of cigarettes were being distributed. Youth exposed to this marketing were those most at risk for progression to established smoking. To our knowledge, this is the first study to estimate youth exposure to advertisements designed for adult-only venues. In light of the large body of evidence that exposure to tobacco advertising and promotion increases tobacco use among youth, our findings demonstrate the need to close the "adult-only'' loophole.

Boison ES. Mental health parity for children and adolescents: How private insurance discrimination and ERISA have kept American youth from getting the treatment they need. Journal of Gender, Social Policy & the Law 13: 187-218, 2005. (232 legal refs.)

This Comment advocates private insurance parity as a means of addressing the mental health needs of America's youth. While parity advocates should continue to lobby for progress on the state level, federal legislation is also needed in order to compel compliance from all benefit plans, legitimize the momentum parity has already gained in the states, and enable states to realize the mental health parity that their legislatures intended. Part I of this Comment explains the urgency of meeting the mental health needs of America's children and adolescents. While covering the cost of treating intellectual disabilities in children is an equally important and controversial subset of mental illness, this Comment will instead focus on coverage of Clinical and Personality Disorders (as opposed to Mental Retardation), as defined in the Diagnostic and Statistical Manual of Mental Disorders IV ("DSM" or "DSM-IV"). Part II explores how Americans currently pay for their mental healthcare and explains how these funding mechanisms leave gaps in coverage. Part III demonstrates that a national parity law would cost less than some fear. Part IV examines the Employment Retirement Security Act of 1974 ("ERISA") and how it has created a "regulatory gap" that has frustrated states' commendable efforts to provide for their citizens. Part V applies current preemption analysis and hypothesizes the results that victims of insurance discrimination might expect if they seek legal redress in court for their loss. Part VI explores the possibility of basing a claim for insurance discrimination on the Americans with Disabilities Act ("ADA"). Part VII evaluates the potential effectiveness of the Wellstone Act, as well as other federal legislation, and makes recommendations for further reform. Part VIII examines whether continued regulation on the state level represents the best way to achieve parity and suggests statutory language that states could use in pursuit of this goal. [Note: Care of substance use disorders is commonly included within mental health services.]

Bornstein BH. Pregnancy, drug testing, and the fourth amendment: Legal and behavioral implications. Journal of Family Psychology 17(2): 220-228, 2003. (31 refs.)

In its efforts to protect the health of unborn children, the government is increasingly attempting to regulate pregnant women's conduct. As with other policies affecting pregnant women's autonomy, these policies have constitutional overtones. In Ferguson v. City of Charleston (2001), the Supreme Court struck down a South Carolina hospital's policy of testing pregnant women for cocaine and turning positive results over to law enforcement for prosecution. This article discusses the basis of the decision and its legal and behavioral implications. Although the decision came down on the side of pregnant women's rights, it left unresolved the issue of whether a similar policy could be constructed that would pass constitutional muster. The article concludes with a consideration of the likely effects of, and alternatives to, such a policy.

Branham LS. "Go and sin no more": The constitutionality of governmentally funded faith-based prison units. University of Michigan Journal of Law Reform 37: 291-352, 2004. (250 refs.)

This Article discusses faith-based prison programs that immerse prisoners living in residential units within a prison in a religious atmosphere. Part One analyzes the constitutionality of these programs under the Establishment Clause of the First Amendment. It notes that state action in the prison context receives more deference from courts than outside the prison context, and that prisoners' constitutional rights are more constricted than free persons'. Part I proceeds to analyze the constitutionality of faith immersion programs in prisons, in light of the Supreme Court's precedents dealing with prisoners' rights and the Establishment Clause. States can defend immersion programs on the grounds that these programs are reasonably related to several important penological objectives, including the interests in reducing recidivism rates, protecting institutional security, promoting the aims of restorative justice, and accommodating inmates' religious needs. In addition, the immersion programs can be constructed in ways that meet the "voluntariness" and "neutrality" requirements subsumed within the Establishment Clause. Part II of this Article discusses how religious immersion programs in prison can best be structured to survive First Amendment challenges. Part II proposes several important features of an immersion program that will likely enable it to survive or avoid Establishment Clause challenges: prisoners must be fully informed about the nature and requirements of an immersion program before they enter it; prisoners must be allowed to freely chose whether or not to enter such a program, and should not face a penalty either for deciding not to enter the program or for attempting to exit the program; prisons must adopt policies and training regimens designed to ensure that immersion programs continue to comply with the commands of the Establishment Clause; prisons must not allow conditions in a faith-based section of a prison to diverge too widely from conditions in sections of the prison with a comparable security level; and prison officials ought to allow the religious aspects of an immersion program to be conducted largely by individuals from the private sector, rather than government employees. Part II concludes that, properly constructed, immersion programs hold substantial promise to advance penological objectives while surviving constitutional challenges.

Brooks JL. Suspicionless drug testing of students participating in non-athletic competitive school activities: Are all students next? Board of Education v. Earls. Wyoming Law Review : 365-396, 2004. (279 refs.)

In 1998, Lindsay Earls was one among many students at Tecumseh High School in rural Oklahoma who would be affected by the school district's new "Student Activities Drug Testing Policy. ... Similarly, the test results were only kept for one year, were not turned over to the police, and, in order to be entirely suspended from participation, an athlete would have to fail three drug tests. ... In reiterating the reasonableness standard outlined in T.L.O., the Court applied a three-factor analysis to Vernonia's suspicionless drug testing policy: (1) the nature of the privacy interest invaded by the drug testing; (2) the character of the intrusion created by the drug testing; and (3) the nature and the immediacy of the government's concern and the effectiveness of the drug testing policy in addressing that concern. ... The Court also dispelled the contention that the "least intrusive means" is always reasonable, pointing out drug testing based solely on suspicion of drug use created a risk of lawsuits, in addition to effectively acting as a "badge of shame" for those students being tested upon suspicion. ... Furthermore, the majority's comment that a specific identifiable drug use problem is not necessary, but merely shores up the special need for a suspicionless general search program is a departure from its holding in Vernonia. ... Initially, this case note will discuss the relevant Fourth Amendment law as it relates to the "special needs" environment, particularly with respect to public school. Second, this case note will discuss the United States Supreme Court's decision in Board of Education v. Earls. Third, this case note will analyze the "factspecific balancing test" as applied in Earls. This case note will argue that the majority in Earls paradoxically disregards several key facts, and that the Court's justification for the policy lies less in specifics of this case and more in the general policy of combating drug use nationwide, relegating the "special needs" doctrine to serve general concerns for student safety rather than a specific, identifiable problem. Finally, this case note will explore the potential implications of Earls and the possibility of using the precedent set to test all students.

Burke A; Bartley J. Kentucky criminal law survey: Driving under the Influence. Northern Kentucky University Law Review 30: 109-129, 2003. (256 legal refs.)

In recent years, there have been several distinct changes in Kentucky's driving under the influence (DUI) legislation. Not surprisingly, Kentucky's legislators have attempted to reconcile two underlying and competing forces that are particularly troublesome, yet implicit, in any criminal law statutory scheme. On one hand, lawmakers seek to protect the public safety. In doing so, however, they must be careful to preserve the rights of the accused. The collision of these dual forces is evident in all of the cases surveyed in this article. The cases surveyed have all been decided in the last two years and focus on criminal appeals. The challenges to convictions stem from various sources. Some challenge the validity of the applicable laws or administrative guidelines themselves. Others arise in the context of the application of the laws to the defendant's particular situation. Underlying every case is the tension between the dual goals of public safety and preservation of individual rights at different stages in the criminal process. Constitutional challenges to the statutes themselves are the subject of Section I. Section II deals with challenges stemming from apparent failures to abide by administrative guidelines in testing the accused. Section III surveys cases involving evidentiary concerns. Particularly, the cases examined involve the aggravating circumstance of crashes as a result of driving under the influence. Section IV looks at the sentencing patterns of those convicted of DUI and related offenses. A related topic, double jeopardy, is the subject of Section V. The final case examines the constitutionality of police checkpoints designed to detect the presence of impaired drivers on the Commonwealth's thoroughfares.

Castle C. You call that a strike: A post-Rucker examination of eviction from public housing due to drug-related criminal activity of a third party. Georgia Law Review 37(Summer): 1435-1469, 2003. (198 legal refs.)

Gloria White lives in a public housing complex outside of Atlanta, Georgia. While she was away from her apartment attending a parent-teacher conference, Ms. White's ex-boyfriend, being chased by the police, broke into Ms. White's apartment by climbing in through a bedroom window. The police, not wanting to break down the door, had the housing authority manager unlock the door to the apartment so they could apprehend the ex-boyfriend, who was found to be in possession of cocaine. The ex-boyfriend was not on the apartment lease. He did not live in the apartment. He was not invited into the apartment. He wasno longer a regular guest. He was the only person in the apartment at the time of his arrest, and the police saw him break into the apartment through a window. Yet Ms. White received a notice from the housing authority shortly after the break-in stating that the terms of her lease had been violated and that the lease would be terminated. Though Ms. White was able to argue successfully in the court eviction proceeding that there was no cause for eviction, the question is still raised: why did the housing authority think it had to evict her in the first place? The answer is clearly One Strike policy. The Supreme Court unanimously asserted in Department of Housing and Urban Development v. Rucker that section 1437d(l)(6) requires lease terms that allow eviction of PHA tenant when a member of the household or a guest engages in drug-related criminal activity, "regardless of whether the tenant knew, or had reason to know, of that activity." If evicted for a drug-related violation, however, it is difficult for a former tenant to be readmitted to public housing: if a tenant is evicted due to criminal activity or drug abuse by a household member, the evicted tenant is not eligible for public housing or other federally assisted housing for three years after the eviction date and any PHA that admits the evicted tenant within three years will be penalized. This Note explores the conflicting interests encountered in Rucker and similar cases-keeping public housing drug-free versus keeping innocent tenants in their homes -- in order to determine what action HUD, and perhaps Congress, ought to take in order to resolve the tension between these competing interests. Part II.a discusses the basics of public housing, including how the eviction process works. Part II.b explains the statutory history leading up to One Strike. Part II.c describes HUD regulations enacted as a result of One Strike and provides a summary of the Rucker decision and its impacts. Part III.a analyzes whether the PHAs actually have discretion to weigh factors outside of the lease violation when deciding whether to evict, n46 in light of PHAS/PHMAP assessment rules.Part III.b analyzes how far section 1437(l)(6) reaches, addressing what offenses and whose offenses bring a tenant into conflict with the drug activity lease provision. This Note contends that, in the absence of an incentive to use the discretion entrusted to them under section 1437d and the HUD regulations, PHAs will continue to evict innocent tenants without determining whether another solution would be more appropriate. Though the Supreme Court in Rucker found these evictions to be acceptable, HUD has encouraged PHAs to recognize the important interest in keeping innocent tenants in their homes and to address the problem by exploring alternatives other than eviction. n50 With that in mind, this Note argues that the PHAS assessment guidelines should be modified in order to encourage PHAs to use their discretion. This Note further argues that the outer boundaries of One Strike policy ought to be clarified, offering some suggestions for how Congress and HUD should modify the policy to avoid inappropriate evictions.

Cavanagh MA; Williams MJ. Low-income grandparents as the newest draftees in the government's war on drugs: A legal and rhetorical analysis of Department of Housing and Urban Development V. Rucker. Georgetown Journal on Poverty Law & Policy 10(Summer): 157-179, 2003. (115 legal refs.)

In Rucker, the Court found in favor of a public housing authority who evicted four so-called "innocent tenants" for the drug-related activities of their grandchildren, caregivers, and guests. ... In other words, if the person involved in drugs was not under the tenant's control, the PHA could not evict the tenant, regardless of whether that person was a member of the tenant's household, a guest, or anyone else. ... As stated above, however, the statute does require a lease provision mandating eviction when a tenant is involved in drug activity: "Each public housing agency shall utilize leases which provide that . . . any drug-related criminal activity . . . shall be cause for termination of tenancy." ... That is, this "reign of terror" apparently is threatening enough individuals to lead the Court to allow PHAs to evict anyone even tangentially associated with it, even those "innocent tenants" who entered this sphere of criminal activity only by association. ... After focusing on the plain language of the statute, the Court addresses the question that should occur to any reader: doesn't this "no-fault" eviction policy allow for draconian and even absurd results? The en banc Ninth Circuit indeed concluded that the statute's no-fault eviction policy would lead to absurd results. The U.S. Supreme Court's recent ruling in Department of Housing and Urban Development v. Rucker will have a significant adverse impact on our country's low-income housing residents. In this Article, we begin with a traditional legal analysis of Rucker and conclude with a rhetorical analysis, using a method drawn from the writings of Professor James Boyd White, as we examine key words and phrases in the opinion and identify the new relationships that emerge as a result. Specifically, we argue that the Rucker Court rhetorically sidesteps the constitutionally suspect provisions of a federal statute that allows responsibility and punishment for failure to prevent criminal activity in our nation's public housing to be transferred from law enforcement personnel to poor, elderly, and innocent residents of public housing.

Chamberlain E; Solomon R. The role of social host liability in reducing impaired driving and underage drinking in Canada. Glasgow: ICADTS, 2004. (14 refs.)

This paper examines the civil liability of those who serve alcohol at private residences. Certain defendants, like occupiers and parents, already owe broad duties of care to their guest. The term "social host" however refers to defendants who have no legally-relevant relationship with their guests other than the social consumption of alcohol., Numerous claims for "social host liability" have been brought in Canadian courts, thought only a few have been successful. By examining the courts' reasons for denying liability this paper explores the criteria necessary for a potentially successful action. The three main criteria are : that the social host provided alcohol to the guest; that the guest was visibly intoxicated; and that the guest posed a foreseeable risk of harm., The paper explains how these criteria were apparently met in the recent case of Dryden v Campbell Estate which has not been appealed or overturned, The paper then discussed how social host liability could help to reduce impaired driving and underage drinking. Some of the common arguments against social host liability are examined. In conclusion the paper explains how increased social host liability would be consistent with Canada's broader alcohol policy, the current law of torts, and the exiting statutory provisions regarding the service of alcohol. There is an accompanying PowerPoint presentation with 11 slides.

Chinnock WF. No Smoking Around Children: The Family Courts' mandatory duty to restrain parents and other persons from smoking around children. Arizona Law Review 45(Fall): 801-820, 2003. (122 refs.)

"A man's home is his castle, but no one is allowed to hurt little children - even in his castle." A considered analysis of family law across the United States leads to this inescapable conclusion: a family court that does not issue court orders restraining persons from smoking in the presence of children under the court's care fails those children whom the law has entrusted to its care. ... The dangers of secondhand smoke are so grave that the non-smoking spouse of a smoker faces twice the risk of developing lung and heart disease than is faced by a non-smoking spouse of a non-smoker. ... Both general ("all relevant factors") and specific ("physical health factors") provisions of states' "best interests of the child" statutes impose a mandatory duty upon family courts to consider the danger of secondhand smoke to all children within their care in determining matters of visitation and custody. ... A considered analysis of the law, including the parens patriae (the state as parent) doctrine, the states' "best interests of the child" statutes, United States Supreme Court case law, as well as the irrefutable judicially-noticed authoritative scientific evidence demonstrating that secondhand smoke constitutes a real and substantial danger to the health of children, leads to one inescapable conclusion: a family court that does not issue court orders restraining persons from smoking in the presence of children within its care fails those children whom the law has entrusted to its care. The issue emerges when either a non-smoking parent raises the issue of the dangers of secondhand smoke to the child or if the child has a respiratory problem. This Article demonstrates that under existing American law, a family court - on its own initiative and regardless of the health of the child - has a legal duty to consider the danger of secondhand smoke to children as a significant, possibly determinative (where child has health problems), factor in deciding issues of visitation and custody. To protect children under their care, family courts, as a matter of standard practice, must issue court orders restraining anyone from smoking in the presence of those children.

Clinton S. Evicting the innocent: Can the innocent tenant defense survive a Rucker preemption challenge? Boston University Law Review 85(February): 293-322, 2005. (247 legal refs.)

In 1998, a twenty-two-year-old Pittsburgh man was arrested for possession of drugs. His arrest occurred in the courtyard of the public housing unit where his family lived. Pursuant to the Anti-Drug Abuse Act, the housing authority lease governing the unit in question specified the violation of drug laws by the tenant, tenant's household member, or guest under her control as grounds for eviction. Based on this lease term, the public housing authority served this man's mother, Marcella Fields, with an eviction notice. A model tenant for the entire two-year span she resided in the unit, Marcella had no reason to suspect that her adult son was engaging in criminal activity. In 2001, the Commonwealth Court of Pennsylvania determined that she should not be evicted, based on the absence of evidence that she had any knowledge of her son's possession of drugs, or any evidence that her son was under her control at the time the criminal activity occurred. In February 2003, the Pennsylvania Supreme Court granted an appeal and subsequently reversed the lower court's decision with no explanation other than stating that the reversal was "based upon the decision of the United States Supreme Court in Department of Housing and Urban Development v. Rucker." Consequently, the decision in HUD v. Rucker led to the eviction of Marcella Fields, her son, and her granddaughter. The Anti-Drug Abuse Act required public housing authorities to incorporate lease clauses that provided for tenant evictions based upon "any criminal activity ... or any drug-related criminal activity ... engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control." Prior to the case that resulted in the Fields' eviction, Pennsylvania courts interpreted this statute in a way that provided public housing tenants with an "innocent tenant" defense. Pursuant to this defense, a public housing tenant can only be evicted if he or she knew, or had reason to know, of the criminal activity of his or her household member or guest. Pennsylvania modified its stance after the Supreme Court's Rucker decision. Was this necessary? Could a state statute that provided for the innocent tenant defense survive a federal preemption challenge based on the holding in Rucker? This Note addresses these issues. Part I provides a basic overview of the regulation of public housing and an interpretation of developing public housing law in light of the One Strike policy. Part II discusses the facts, procedural history, and rationale behind the Supreme Court's decision in HUD v. Rucker. Part III examines the states recognizing the innocent tenant defense, the policy considerations supporting both this defense and the alternative strict liability standard, and the post-Rucker trend toward strict liability. Part IV addresses preemption issues within housing law. Finally, Part V asserts that a state statute providing for the innocent tenant defense, such as the Massachusetts statute, could survive a federal preemption challenge despite the decision in HUD v. Rucker.

Coates L; Wade A. Telling it like it isn't: Obscuring perpetrator responsibility for violent crime. Discourse & Society 15(5): 499-526, 2004. (51 refs.)

Part I of this article introduces the interactional and discursive view of violence and resistance, part II illustrates its application to the analysis of sexual assault trial judgments, and part III provides a detailed analysis of an entire judgment. In giving their reasons for verdicts and sentences, the majority of judges accounted for the assaults by drawing on psychological concepts and constructs. These psychological explanations or causal attributions were grouped into one or more of eight categories: alcohol and drug abuse, biological or sexual drive, psychopathology, dysfunctional family upbringing, stress and trauma, character or personality trait, emotional state, and loss of control. The causal attributions in all categories systematically reformulated deliberate acts of violence into non-deliberate and non-violent acts. Psychologizing attributions, that is, causal attributions that functioned to conceal the violence and mitigate the perpetrator's responsibility, accounted for 97 percent of attributions. Through line-by-line analyses of the full text of one judgment, we show how psychologizing attributions are combined in use with other linguistic devices to (i) conceal violence, (ii) mitigate perpetrators' responsibility, (iii) conceal victims' resistance, and (iv) blame or pathologize victims. Note: alcohol and drugs are included in discussion

Coleman NE. After the bust: Landowner's liability when the property is used for the manufacture of methamphetamine. San Joaquin Agricultural Law Review 1: 109-132, 2003. (220 legal refs.)

The threat of harm from the proliferation of clandestine drug manufacturing in California has become too real to ignore. ... Between January, 2000 and December 1, 2000, seventy-eight methamphetamine clandestine drug laboratories (CDL) were seized in the Central Valley. ... The premise behind the law expressed a duty of land owners to supervise the leased premises. ... Under its provisions, a landowner who wants to defend a forfeiture action in court has the burden to show he did not know his property was involved in a criminal activity or that he did all that was reasonable under the circumstances to terminate such use once he discovered the illegality. ... Two salient points in Lew are that the court allows tenants to consolidate their damages, and relies on California legislation to establish that such illegal activity constitutes a nuisance. ... If a land owner is warned of criminal drug activities in his property, tenants and neighbors can sue in nuisance to enjoin the illegal methamphetamine activity or for money damages. ... The cost of cleaning a methamphetamine site can be as much as $ 100,000 depending of the extent of the CDL activity. ... In rural California, where criminals use farm property to carry out illegal activities, the landlord does not have sufficient resources to become an effective first line of prevention. The author suggests that environmental laws targeted at the wrongdoer and enforcing farm owner's duty to repair their property are effective ways to combat the problem of illegal drug proliferation.

Conlon CK. Urineschool: A study of the impact of the Earls decision on high school random drug testing policies. Journal of Law and Education 34(July): 297-319, 2003. (46 refs.)

This article examines the impact of a recent U.S. Supreme Court decision on public high schools' random drug testing policies. Board of Education v. Earls upheld public school authorities' right to conduct random drug testing of students participating in competitive extracurricular activities. This article reports the results of a survey of high school principals regarding their reactions to this decision. The results show that the principals are very divided, with some expressing strong support for the decision and others strongly opposed. While three of the ten schools in the study have some type of random drug testing, only one school instituted its policy following the Earls decision and did not choose to test students in extracurricular activities. The study also found that larger high schools were more likely to institute random drug testing and that high-functioning and troubled schools were the least likely to adopt random drug testing policies.

Elkins B; Helms LB; Pierson CT. Greek-letter organizations, alcohol, and the courts: A risky mix? Journal of College Student Development 44(1): 67-80, 2003. (44 refs.)

This article examines all reported state and federal cases involving college fraternities and sororities and negligence resulting from the use of alcohol by college and university students from 1970 through 2001. Research examined the litigation volume, fact patterns, defendants named for litigation, and outcomes of cases. Results indicate student affairs professionals should focus more on student intervention than on concerns about institutional liability.

Everett S. Raich v. Ashcroft: Medical marijuana and the revival of federalism. San Diego Law Review 41: 18733-1899, 2004. (181 refs.)

Since 1996, nine states have passed legislation that flies directly in the face of the federal government's "war on drugs," as embodied in the federal Controlled Substances Act (CSA). The CSA ranks marijuana as one of the most noxious controlled substances, placing it in the same category as substances such as heroin. However, voters in Alaska, Arizona, California, Colorado, Hawaii, Maine, Nevada, Oregon, and Washington have authorized doctors to recommend, and patients to possess and use marijuana for the treatment of many debilitating illnesses. Despite the clear will of the voters in these states, the federal government has continued to enforce the CSA against users and distributors of medical marijuana. Most recently, the federal government raided the home of Diane Monson in Northern California. After California officials refused to act, determining that her conduct was lawful under California law, federal DEA agents entered her home and seized and destroyed her marijuana plants. n11 Diane Monson and Angel Raich, who feared a similar raid, sued. In Raich v. Ashcroft, the Ninth Circuit ruled that the CSA was an unconstitutional exercise of congressional commerce power when applied to citizens who use marijuana that has not traveled interstate and was never intended for interstate or foreign commerce. In ruling against the extension of Congress's commerce power in Raich, the Ninth Circuit continued a line of recent cases in which it ruled to limit the reach of Congress. This Casenote argues that Raich was correctly decided and should be upheld by the Supreme Court on appeal. In addition, the judiciary should continue to narrowly interpret the commerce power in order to further the fundamental purpose of our dual system of government: protection of individual rights. More specifically, courts should apply the reasoning of Raich and narrowly define the classes of activities involved in Commerce Clause challenges. Part II of this Casenote provides an overview of the history and current state of Commerce Clause jurisprudence, as well as an analysis of the effectiveness of that jurisprudence and the various ways in which lower courts can apply it. Part III reviews the Raich case and the applicable marijuana legislation. Part IV analyzes the Raich decision and the other recent Ninth Circuit decisions in light of the Supreme Court's Commerce Clause framework. Finally, Part VI recommends that the Supreme Court affirm Raich, and that the federal courts apply the reasoning of Raich to other Commerce Clause challenges and narrowly define the class of activity involved in an "as applied" Commerce Clause challenge to a federal statute. A narrow definition is mandated by the Supreme Court and is necessary to protect both individual liberty and the dual system of government intended by the Framers.

Fiore MC; Keller PA; Baker TB. The Justice Department's case against the tobacco companies. (editorial). New England Journal of Medicine 353(10): 972-975, 2005. (5 refs.)

Flores ML; Barnoya J; Mejia R; Alderete E; Perez-Stable EJ. Litigation in Argentina: Challenging the tobacco industry. Tobacco Control 15(2): 90-96, 2006. (53 refs.)

Objective: To evaluate the processes and outcomes of tobacco litigation in Argentina and to analyse the strategies of the tobacco industry to oppose litigation using tobacco industry documents. Methods: A systematic search of tobacco industry documents on the internet dating from 1978 to 2002. Law library searches using Argentinean official and unofficial reports systems were combined with computerised online searches. Results: There have been at least 15 failed litigation cases in Argentina and the tobacco industry presented a concerted defence in every claim regardless of cost. We categorised 11 cases as product liability and nicotine addiction, two as health care reimbursement, and two as criminal law and secondhand smoke. Industry strategies included hiring legal consultants from prestigious international and Argentinean law firms and developing litigation prevention programmes. Industry monitored legal academic meetings, controlled the development of new product liability legislation, obtained favourable opinions from experts, and closely observed the development of litigation in Argentina. Conclusion: The strategies used by the industry have been successful in preventing recovery for tobacco injuries through litigation. Argentinean health advocates and lawyers need to be aware of the roles and strategies of the tobacco industry in order to develop effective litigation in Argentina.

Friedman LC. Tobacco industry use of judicial seminars to influence rulings in products liability litigation. Tobacco Control 15(2): 120-124, 2006. (28 refs.)

Objectives: This paper examines the tobacco industry's efforts to influence litigation by sponsoring judicial seminars. Methods: Thousands of internal tobacco documents were examined, including memos, reports, presentations, and newsletters. Connections to outside organisations were corroborated by examining tobacco industry financial records, budgets, and letters pledging funds. Facts about outside organisations were triangulated through examining their websites and publicly-filed financial records, and verifying facts through their representatives' statements in newspaper and law review articles. Results: There are direct financial ties between the tobacco industry and groups that organise judicial seminars in an effort to influence jurisprudence, and judges who attend these seminars may be breaching judicial ethics either by not inquiring about the source of funding or by ignoring funding by potential litigants. Conclusions: The tobacco industry's attempts to clandestinely influence judges' decisions in cases to which they are a party endangers the integrity of the judiciary.

Gallagher R. Tobacco settlement spending plans in ashes. (editorial). Scientist 17(6): 16-16, 2003. (3 refs.)

Garton AJ. Casenote: Constitutional Law - Commerce Clause - Regulation of intrastate cultivation of state-authorized medical marijuana is within Congress's commercee power. Cumberland Law Review 36: 179-192, 2006. (109 legal refs.)

Summary: Gonzales v. Raich recently addressed the extent of authority the federal government possesses to regulate intrastate cultivation of medical marijuana. In Raich, residents suffering from serious medical conditions used medical marijuana in accordance with California's Compassionate Use Act and thereafter claimed that the federal government violated the Commerce Clause when Drug Enforcement Administration (DEA) agents seized and destroyed a resident's personal cannabis crops. ... In the hope of resolving ensuing federal authority disputes, the Court considered whether the AAA's regulation of production and consumption of wheat exceeded Congress's commerce power. Although Filburn's local wheat consumption "may not be regarded as commerce," the Court held that "it may still . . . be reached by Congress if it exerts a substantial economic effect on interstate commerce. ... The Court's analysis revealed its stance that Filburn's consumption of homegrown wheat reduced his need to purchase wheat in the open market and therefore indirectly "competed with wheat in commerce. ... " Thus, the Morrison holding reiterated the finding in Lopez that the regulation of purely intrastate violence that does not directly affect the "instrumentalities, channels, or goods involved in interstate commerce" is, and should remain, solely within the province of the individual states. In anticipation of future challenges to this ruling by citizens fearing excessive federal authority, the Court in Raich acknowledged alternative avenues through which residents in need of medical marijuana may obtain relief. Most importantly, the Court emphasized the ultimate power of the democratic process through which the voting public may petition Congress to authorize the reclassification of marijuana in the CSA's schedule of controlled substances. 108 Thus, even in the face of America's ever-changing interpretation of federal versus states' rights, the Court maintains a steadfast conviction that the "voices of voters" will continue to "be heard in the halls of Congress."

Givelber D; Strickler L. Junking good science: Undoing Daubert v Merrill Dow through cross-examination and argument. American Journal of Public Health 96(1): 33-37, 2006. (6 refs.)

For more than 40 years, the tobacco industry prevailed in lawsuits brought by injured smokers, despite overwhelming epidemiological evidence that smoking caused lung cancer. Tobacco lawyers were able to create doubt about causation. They sought to persuade jurors that "everybody knew" smoking was harmful but "nobody knows" what causes cancer by recreating in court the scientific debate resolved by the 1964 Surgeon General's Report. The particularistic structure of jury trials combined with the law's mechanistic view of causation enables a defendant to contest virtually any claim concerning disease causation. Despite judicial efforts to eliminate "junk science" from lawsuits, a well-financed defendant may succeed in persuading jurors of the epidemiological equivalent of the proposition that the earth is flat.

Gorman CA. Public school students' Fourth Amendment rights after Vernonia and Earls: Why limits must be set on suspicionless drug screening in the public schools. Vermont Law Review 29(Fall): 147-184, 2004. (211 refs.)

In 1995, the United States Supreme Court held in Vernonia School District 47J v. Acton (Vernonia) that a school district policy subjecting all student-athletes to random urinalysis drug testing was constitutional under the Fourth Amendment. Under the Tecumseh Policy, students are required to consent to a drug test before participating in any extracurricular activity, and must agree to be tested at any other time based upon reasonable suspicion. The Earls majority asserted that the health and safety risks accompanying drug use identified by the Vernonia Court "apply with equal force to Tecumseh's children." In order to conduct a suspicionless search of those within the targeted group, Vernonia established that, even in the public school context, the showing of a special need must be based upon the existence of identifiable safety issues within the specific context, independent of the general health concerns related to drug use. The fact that the school district singled out those students for drug screening who, both nationwide and in the Tecumseh schools themselves, appear to be the least likely students to engage in drug use is even more troubling. In Part I, the author sets forth the analytical framework applied by both the Vernonia and Earls Courts and focuses on how the two majority opinions applied the facts of their respective cases to that framework. Part II distinguishes the Earls and Vernonia decisions by highlighting the failure of the Earls majority to properly apply the Vernonia standard, as well as their failure to recognize the fundamental differences between student-athletes and nonathletes participating in extracurricular activities. Part III asserts that the negative effects visited upon the health and welfare of students subjected to suspicionless drug screening provide compelling reasons for school districts nationwide to reject suspicionless drug screening of nonathletes. This Part also sets forth a number of alternatives to suspicionless drug testing, including the implementation of suspicion-based drug-screening policies.

Guardino SD; Daynard RA. Punishing tobacco industry misconduct: The case for exceeding a single digit ratio between punitive and compensatory damages. University of Pittsburgh Law Review 67(1): 1-65, 2005. (44 refs.)

In State Farm v. Campbell, the U.S. Supreme Court announced that "few awards exceeding a single-digit ratio between punitive and compensatory damages" will be constitutional. Several appeals courts have mistaken this language to be a strict mandate prohibiting punitive damages awards in excess of nine times the compensatory damages amount. This trend, however, may be changing. For example, in one recent smoking and health case brought against Philip Morris, an Oregon appeals court allowed a punitive damages award that was almost 97 times the compensatory damages award. This decision was based on the court's finding that Philip Morris "used fraudulent means to continue a highly profitable business knowing that, as a result, it would cause death and injury to large numbers of Oregonians." This article proposes that such wrongdoing (or, "primary" reprehensibility) justifies high punitive damages awards in the context of smoking and health litigation. In addition, this article puts forth a new argument for such high awards-the tobacco industry's "secondary" reprehensibility. Internal company documents reveal that the industry knowingly has used its enormous wealth to make it exceedingly difficult for potential plaintiffs to find lawyers, and nearly impossible for those that do to maintain their cases. Such "secondary" reprehensibility has allowed the industry to evade large judgments against it and to maintain its longstanding "refuse to settle" policy. In this light, this article proposes that when a smoking and health plaintiff is successful at trial, the tobacco industry should be subject to a high punitive damages award because: 1) the industry's underlying conduct is particularly reprehensible; 2) the industry has used its wealth to engage in litigation tactics that are equally reprehensible and have allowed it to evade capture; and 3) a powerful financial sanction is needed to deter lethal misbehavior when the defendant makes billions of dollars addicting consumers to its deadly product.

Higbee HL. Comment: Student privacy rights: Drug testing and Fourth Amendment protections. Idaho Law Review 41: 361-401, 2005. (1011 legal refs.)

The "war on drugs" was a response to a perceived threat of increasing drug use, especially among school-aged children. ... However, it is the balance between protecting students from the devastating effects of drug use and protecting student privacy rights under the Fourth Amendment that is at the heart of the issue regarding public school drug testing policies. This article seeks to address the constitutional issues surrounding student drug testing policies of American public schools. Part II sets forth the justifications for drug testing policies and the need to balance security and individual liberties. It also defines the scope of liberties afforded to students and the role of public schools. Part III analyzes the constitutional issues regarding the reasonableness balancing tests developed by the U.S. Supreme Court in defining the scope of Fourth Amendment searches and seizures in public schools. Part IV discusses the justifications for student drug testing policies and the problems defining and limiting the scope of such policies. Part V discusses the constitutional underpinnings of suspicionless searches and searches based on individualized suspicion. Lastly, Part VI suggests that public schools should be able to implement drug testing policies to prevent student drug use and protect the safety of the general student body. It is important to maintain the balance that exists between maintaining a safe and secure learning environment for students while recognizing students' Fourth Amendment privacy protections.

Higbee KL. Student privacy rights: Drug testing and Fourth Amendment protections. Idaho Law Review 41: 361-401, 2005. (191 refs.)

Summary: The "war on drugs" was a response to a perceived threat of increasing drug use, especially among school-aged children. However, it is the balance between protecting students from the devastating effects of drug use and protecting student privacy rights under the Fourth Amendment that is at the heart of the issue regarding public school drug testing policies. The court of appeals in Earls declared the drug testing policy unconstitutional because the district failed to demonstrate an "identifiable drug abuse problem among a sufficient number of those subject to the testing. " The Supreme Court reasoned that participation in competitive extracurricular activities is analogous to participation in athletic teams because there are many similar intrusions of privacy in both settings. The need to prevent the harmful effects of "childhood drug use" provides the "necessary immediacy" for a drug testing policy. The minority in Vernonia argued the district had no right to execute a drug testing policy in a particular school because there was no prior drug use occurring at that school. In Vernonia, the district implemented a drug testing policy based on evidence of drug use by previous students. On the other hand, individualized suspicion is generally acceptable when the nature of the invasion of a student search increases, establishing a standard approaching probable cause. Courts have clearly found that children do not possess the same rights and privileges as adults. However, they are not stripped of all constitutional protections. Constitutional protections afforded to students must take into account the relationship and role of school administrators and officials. Courts have recognized that schools are imbued with custodial and tutelary responsibility in protecting the safety of all students, and ensuring that students are afforded an adequate education. To effectuate that responsibility, courts generally have recognized the existence of a reasonableness balancing test in determining the constitutionality of imposing a search or seizure upon students for the greater protection of the school as a whole. Drug testing policies have been justified on many grounds by courts as comporting with the reasonableness balancing test.

Hiilamo HT. Tobacco control implications of the first European product liability suit. Tobacco Control 14(1): 22-30, 2005. (40 refs.)

Objective: To examine tobacco control implication of the first European product liability suit in Finland. Methods: Systematic search of internal tobacco industry documents available on the internet and at the British American Tobacco Guildford Depository. Results: Despite legal loss, the litigation contributed to subsequent tobacco control legislation in Finland. The proceedings revealed that the industry had concealed the health hazards of its products and, despite indisputable evidence, continued to deny them. The positions taken by the industry rocked its reliability as a social actor and thus weakened its chances of influencing tobacco policy. Despite fierce opposition from the tobacco industry, tobacco products were included in the product liability legislation, tobacco was entered on the Finnish list of carcinogens, and an extensive Tobacco Act was passed in Parliament. Conclusions: Tobacco litigation might not stand alone as a tool for public health policymaking but it may well stimulate national debate over the role of smoking in society and influence the policy agenda.

Hoefges M. Protecting tobacco advertising under the commercial speech doctrine: The constitutional impact of Lorillard Tobacco Co. Communication Law and Policy 8(Summer): 267-293, 2003. (265 refs.)

In Lorillard Tobacco Co. v. Reilly, decided in 2001, the Court addressed for the first time the constitutionality of state restrictions on retail tobacco advertising. The Lorillard Tobacco Court utilized a combination of federal pre-emption principles and earlier case law (Central Hudson analysis) to strike down state regulations that served to ban most outdoor and point-of-sale tobacco advertising. The justices split on several of the key rulings in the case. The Lorillard Tobacco opinion is significant on a number of points to the development of the commercial speech doctrine and to efforts by the government to regulate harmful product advertising. The case has legal and historical significance as the first in which the Supreme Court decided the constitutionality of an advertising restriction aimed at protecting children, and the first in which the Court directly decided the constitutionality of government attempts to restrict tobacco advertising. From a broader constitutional perspective, the case is important as reaffirmation of the Central Hudson analysis as constitutional doctrine despite concerns about its continued validity among members of the current Court. From a legislative perspective, the case is also significant for stringently interpreting the federal pre-emption provisions of the Federal Cigarette Labeling and Advertising Act (FCLAA) in a manner that severely limits the legal capacity of states to regulate cigarette advertising absent further revision to the FCLAA by Congress. This article first explores the commercial speech doctrine with emphasis on recent Supreme Court decisions leading to Lorillard Tobacco. Next, it sets out the national regulatory framework for tobacco advertising, which provides relevant context for the subsequent discussion and analysis of the Lorillard Tobacco case. The article then analyzes the Court's Lorillard Tobacco opinion and traces its progeny in lower federal and state court cases. Finally, the article provides analysis of the impact of Lorillard Tobacco on the commercial speech doctrine and seeks to derive the parameters of constitutionally permissible government regulation of protected commercial speech.

Ibrahim JK; Glantz SA. Tobacco industry litigation strategies to oppose tobacco control media campaigns. Tobacco Control 15(1): 50-58, 2006. (75 refs.)

Objective: To document the tobacco industry's litigation strategy to impede tobacco control media campaigns. Methods: Data were collected from news and reports, tobacco industry documents, and interviews with health advocates and media campaign staff. Results: RJ Reynolds and Lorillard attempted to halt California's Media Campaign alleging that the campaign polluted jury pools and violated First Amendment rights because they were compelled to pay for anti-industry ads. The American Legacy Foundation was accused of violating the Master Settlement Agreement's vilification clause because its ads attacked the tobacco industry. The tobacco companies lost these legal challenges. Conclusion: The tobacco industry has expanded its efforts to oppose tobacco control media campaigns through litigation strategies. While litigation is a part of tobacco industry business, it imposes a financial burden and impediment to media campaigns' productivity. Tobacco control professionals need to anticipate these challenges and be prepared to defend against them.

Izawa-Hayden A. Board of Education of Independent School District No. 92 of Pottawatomie Country v Earls 122 Sl Ct 2559. American University Journal of Gender, Social Policy & the Law 11: 1067-1077, 2003. (87 legal refs.)

In 1995, the United States Supreme Court decided Vernonia School District v. Acton. The Court concluded that the school district's student athlete drug policy, which randomly tested students who participated in athletics, did not violate the Fourth or Fourteenth Amendments of the United States Constitution because the school's drug testing regime was reasonably tailored to promote the school district's interest in preventing drug use among students. ... In 1998, the Pottawatomie County (Oklahoma) School District created the Student Activities Drug Testing Policy ("Policy"), requiring middle and high school students wishing to engage in any extracurricular activity to consent to a urinalysis drug test. ... Additionally, the reasonableness of a search is not always dependent on the existence of individualized suspicion, such as in the case of drug testing. The Court followed the balancing test it applied in Vernonia, and weighed the intrusion of the drug testing Policy imposed on students against the government interests in the students' health and safety. ... C. The Drug Testing Policy is a Reasonable Method to Promote the Government's Valid Interests in the Health and Safety of Students.

Johnston JB. Drugs, Dogs, and the Fourth Amendment: An Analysis of Justice Stevens' Opinion in Illinois v. Caballes. Bridgeport Law Review/Quinnipiac Law Review 24: 659-680, 2006. (166 legal refs.)

Summary: When a drug dealer delivers illegal narcotics to the American market place, he or she frequently uses our nation's roadways. ... In an opinion, authored by Justice John Paul Stevens, the Court held that Caballes did not have a reasonable expectation of privacy in transporting the discovered marijuana that was detected by the drug sniffing dog. ... While transporting narcotics can be a relatively simple task, there is a huge amount of risk should the drug trafficker get caught while engaged in his or her craft. ... If Trooper Gillette stopped Caballes unlawfully, there would have been no question as to the Court suppressing the seizure of the marijuana and reversing the conviction. ... In a matter of minutes, the Troopers were able to confirm the presence of illegal narcotics in Caballes' car thanks to the drug sniffing dog. ... For this reason, the Court found that a law enforcement investigation, like the one conducted by Trooper Gillette which does not infringe upon one's "legitimate interest in privacy," does not constitute a search pursuant to the Fourth Amendment of the United States Constitution. ... The fact of the matter is that the missteps of the past should not stop the law enforcement profession from seeking fair and effective ways to apprehend those who use America's roadways to benefit from the illegal drug trade. ... Throughout this article, the author arguesthat the long-term goals of the Fourth Amendment are two-fold. First, the most well known objective of Fourth Amendment jurisprudence is that it protects individuals from unreasonable searches and seizures by the police. Second, the United States Supreme Court generally interprets the Fourth Amendment as allowing law enforcement to lawfully apprehend the criminal element without placing unreasonable constraints in their path. Justice Stevens' opinion in Caballes provides a perfect example of the dual role of the Fourth Amendment. This article provides an analysis of Caballes and its implications for both law enforcement and the motoring public. It further examines the use of drug sniffing dogs as a tool to uncover drug trafficking strategies that involve the use of our country's roads. In addition, this article offers an in-depth review of the Court's implementation of Fourth Amendment jurisprudence in prior search and seizure cases and their effect on Justice Stevens' opinion in Caballes. Prior to commencing our discussion of Caballes, however, some background information is necessary to better understand the tensions that exist between drugs, drug sniffing police dogs, and our constitutional rights. More specifically, this information will provide background information on the tension that exists between law enforcement's duty to protect the public from drug traffickers, and its obligation to protect the public from losing its civil liberties.

Kadehjian L. Legal issues in oral fluid testing. Forensic Science International 150(2-3): 151-160, 2005. (43 refs.)

The use of oral fluid for drugs of abuse testing has received increased attention with the availability of accurate methods for the collection and analysis of drugs in oral fluid specimens. Already used in the transportation and insurance industries, there is increasing interest in oral fluid drug testing in the workplace, schools, roadside driving under the influence of drugs, and criminal justice. Given that sanctions may accrue from positive test results, legal challenges are to be expected. However, with its established scientific base, demonstrated accuracy and reliability of collection and test methods, and current positive regulatory developments, it seems clear that the use of oral fluid as a specimen for drugs of abuse testing will be able to withstand judicial scrutiny.

Knippenberg JM. The constitutional politics of charitable choice. Society 40(2): 37-47, 2003. (0 refs.)

Constitutional issues in the political debate and litigation on collaboration between government and faith-based social service organizations are discussed. The law protects faith-based organizations that accept funding from altering their religious practices and governance as a result of the funding and also provides for alternative services to the faith-based ones. Legal issues in this collaboration center on the state establishment of religious and the constitutionality of charitable choice. Many cases have been involved in the provision of education. In a court challenge to the state-funding of a faith-based program treating male drug and alcohol addicts (Faith Works Milwaukee), the Federal District Court judge decided that drug offenders had the choice to participate and therefore there was no government sponsorship of religion. In the current jurisprudential climate, indirect funding, eg, vouchers, is less controversial; recent court decisions and future platforms for litigation, eg, faith-based organization hiring practices, are summarized.

Lawn S. Cigarette smoking in psychiatric settings: Occupational health, safety welfare and legal concerns. Australian and New Zealand Journal of Psychiatry 39(10): 886-891, 2005. (34 refs.)

Objective: In the current climate of growing concern for the harmful effects of cigarette smoking and passive smoking, the high prevalence of this activity within psychiatric settings can no longer be ignored. This paper reviews the findings of research in a public stand-alone psychiatric facility in South Australia where significant legal and occupational health, safety and welfare (OHSW) concerns were apparent for both patients and staff as a consequence of the strong culture of smoking in that setting. The aim of this paper is to raise awareness of this significant health and legal issue and to inform policy and practice change. Method: This paper reviews legal issues associated with smoking in psychiatric settings and presents relevant findings from previous studies in which in-depth interviews and observations in community and inpatient psychiatric settings were conducted. Results: Significant legal and OHSW concerns were apparent for both patients and staff in all settings. The potential for future litigation was high. Conclusions: There are a number of legal and OHSW implications of continued smoking by staff and patients within mental health settings. Several administrative, clinical and cultural practices need to change within this system of care in order to improve overall patient wellbeing and to avoid the potential for litigation by patients and staff.

LeGresley EM; Muggli ME; Hurt RD. Playing hide-and-seek with the tobacco industry. (review). Nicotine & Tobacco Research 7(1): 27-40, 2005. (35 refs.)

Despite many peer-reviewed works that draw on tobacco industry documents that have now been made public, questions remain about how complete a picture has emerged. We present a conceptual framework that identifies and evaluates tobacco industry efforts to conceal information. Widespread document destruction like that in recent litigation in Australia is just one of more than a dozen tobacco industry efforts to prevent access, or at least timely access, to documents. Industry efforts range from small, locally employed initiatives to company-wide tactics. Some efforts, such as using "oral only" procedures, scrambling telephone lines, or involving lawyers in scientific projects, are preemptive. Others seek to deal with already existing documents by invoking bogus claims of legal privilege, stipulating "read then destroy" for memos, and rewriting problematic memos. That evidence of concealment has, in fact, been found in tobacco company archives attests to the futility of attempting to control the flow of millions of pieces of paper among tens of thousands of employees. However, researchers have yet to reveal the full story: We know of the industry's failures in concealing information, but not its successes. The industry's objective is not destruction of information per se, but prevention of public disclosure of that information. Exposing the tobacco industry's many approaches to concealment provides greater insight into companies' intentions and potential means for stripping away that concealment.

Lemaire J. Unmixing a jurisprudential cocktail: Reconciling the twenty-first amendment, the dormant Commerce Clause, and federal appellate jurisprudence to judge the constitutionality of state laws restricting direct shipment of alcohol. Notre Dame Law Review 79(4): 1613-1674, 2004. (401 legal refs.)

Most states place some type of restriction on the ability of consumers to order liquor and have it shipped to their homes. n3 If states attempted to place such restrictions on commerce in lobsters or video games or virtually any other product, the courts would not hesitate to strike down those restrictions. The issue of state imposed restrictions on commerce is more complicated when commerce in alcoholic beverages is involved. Section 2 of the Twenty-First Amendment to the Constitution provides: "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." Its quirks have been documented, but does it authorize the states to forbid the direct shipment of liquor to consumers? This issue has become important in recent years because of the rapid growth of the American wine industry. There are more than 2000 domestic wineries in the United States, up from just 375 in 1963. Due to their size, such wineries often find it difficult or even impossible to sell their wares through traditional state distribution channels. The Internet, however, provides a convenient connection between wineries and their potential customers. Unfortunately, state direct-shipment prohibitions often get in the way. Wineries and wine lovers have challenged state direct-shipment laws in the courts, claiming that such laws restrain commerce to a degree not allowed by the dormant Commerce Clause. This Note attempts to sort out this issue in light of current law. Part I examines how alcohol regulation has developed in the United States, which contributes to an understanding of how state regulation of alcohol has long been considered "different." Part II traces the development of contemporary Supreme Court jurisprudence in the area of alcohol regulation and the Twenty-First Amendment. Part III reviews the five recent circuit court of appeals decisions regarding the validity of state direct-shipment laws. Finally, Part IV takes crucial principles from the Supreme Court and circuit court of appeals decisions and attempts to mold them into a clear understanding about when state direct-shipment laws are valid and when they are not. This Note concludes that nondiscriminatory direct-shipment laws are a valid part of the states' right to structure their own alcohol distribution systems while discriminatory direct-shipment laws are presumed to have an improper, protectionist purpose and are invalid unless the state can affirmatively justify them.

Levin J. Legal Ethics. The mentally impaired lawyer: What is our obligation to report. CBA Record 18: 54, 2004. (0 refs.)

Rule 1 of both the Illinois Rules of Professional Conduct and the ABA Model Rules state that a "lawyer shall provide competent representation to a client." Other Rules impose numerous obligations on lawyers in the context of their practice. Since lawyers are subject to the risk of illness, aging and substance abuse, a serious question arises when a lawyer becomes disabled or impaired and not able to provide competent representation. Each of us hopes that we will be enough aware of our own impairment to take appropriate action for the good of our clients and the profession. What, however, should we do if we know that another lawyer is impaired and unable to provide competent representation, and continues to practice? The ABA has recently promulgated two Formal Opinions addressing when mental impairment impacts on the lawyer's ability to function. The first is Formal Opinion 03-429 which discusses a lawyer's "Obligations With Respect to Mentally Impaired Lawyer in the Firm." This opinion states that: If a lawyer's mental impairment is known to partners in a law firm or a lawyer having direct supervisory authority over the impaired lawyer, steps must be taken that are designed to give reasonable assurance that such impairment will not result in breaches of the Model Rules. If the mental impairment of a lawyer has resulted in a violation of the Model Rules, an obligation may exist to report the violation to the appropriate professional authority. The Opinion continues to explain that the firm may have an obligation to discuss the circumstances of the change of responsibility with the client under Model Rule 1.4(b) which states: "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." The Opinion relies on Model Rules 16, and 5.1(a) and (b), in reaching its conclusion that a law firm has responsibility for lawyers within the firm who may suffer from a mental impairment. Rule 1.16 of both the ABA and the Illinois Rules provides: (a) A lawyer representing a client before a tribunal shall withdraw from employment (with permission of the tribunal if such permission is required), and a lawyer representing a client in other matters shall withdraw from employment, if: (2) the lawyer knows or reasonably should know that such continued employment will result in violation of these Rules; [or] (3) the lawyer's mental or physical condition renders it unreasonably difficult for the lawyer to carry out the employment effectively.

Levin JC. Protect us or leave us alone: The New York State smoking ban. Albany Law Review 68: 183-206, 2004. (183 legal refs.)

This paper asserts that the recent tobacco legislation represents a cowardly and deceitful act on the part of New York State legislators. While medical experts continuously warn of the dangers of smoking and the harmful effects of environmental tobacco smoke ("ETS"), the legislature refuses to completely ban smoking. A total ban would be the obvious step to adequately protect the public health. Instead, the legislation prevents competent adults from deciding for themselves whether and where to smoke. The argument of this paper is that the legislation takes this middle-of-the-road approach due to enormous financial, economic and societal pressures urging each side of the argument. By taking this stance, the legislature attempts to appease both the tobacco industry and anti-tobacco advocates, while neither protecting public health nor our rights as citizens of New York and the United States. Furthermore, the State of New York continues to benefit from the tax revenue generated from smoking, and legislators keep lining their pockets with the tobacco industry's money. The author concludes that the smoking ban has been justified on the grounds of protecting health. The health of smokers, however, is not protected at all as they are permitted to continue smoking a cancer causing agent so long as it is not inside public places. Legislators realize that if smoking were banned, the tax revenue loss would be disastrous for the fiscal health of the State. In addition, any legislator who voted to ban cigarettes completely would certainly lose any contributions made by the tobacco industry through lobbying. Thus, we are left with the smoking ban as it has been codified. This law does not adequately protect human health in New York and it forces many private business owners to ban smoking when they may not wish to do so. My response to New York State legislators and the smoking ban is this: protect us or leave us alone.

Levy DE; Meara E. The effect of the 1998 Master Settlement Agreement on prenatal smoking. Journal of Health Economics 25(2): 276-294, 2006. (37 refs.)

The Master Settlement Agreement (MSA) between the major tobacco companies and 46 states created an abrupt 20% increase in cigarette prices in November 1998. Earlier estimates of the elasticity of prenatal smoking implied that the price rise would reduce prenatal cigarette smoking by 7-20%. Using birth records on 9.8 million US births between January 1996 and February 2000, we examined the change in smoking during pregnancy and conditional smoking intensity in response to the MSA. Overall, adjusting for secular trends in smoking, prenatal smoking declined by less than half what was predicted in response to the MSA.

Lieberman B. The power of positive drinking: Are alcoholic beverage health claims constitutionally protected? Food and Drug Law Journal 58: 511-520, 2003. (81 legal refs.)

The Competitive Enterprise Institute's (CEI's) 1996 lawsuit challenging the federal government's policy regarding alcoholic beverage health claims was dismissed, without prejudice, on procedural grounds. See CEI v. O'Neill, No. 96-2476 (D.D.C. June 18, 2001), appeal dismissed, CEI v. O'Neill, No. 01-5241, 2002 WL 1359478 (D.C. Cir. May 10, 2002). Summary: It seems almost too good to be true that moderate consumption of alcoholic beverages substantially reduces one's risk of contracting heart disease, but a wealth of published studies have shown it to be an accurate statement. ... In its 1993 Industry Circular, entitled Health Claims in the Labeling and Advertising of Alcoholic Beverages, ATF conceded that "there is currently a growing body of scientific research and other data that seems to provide evidence that lower levels of drinking decrease the risk of death from coronary artery disease." ... ATF sponsored a survey, conducted by DHHS' Center for Substance Abuse Prevention (CSAP), which tested the consumer impact of the proposed directional statements, including whether they would confuse consumers about the risks of drinking or obfuscate the message in the mandatory health warning statement. ... The agency conceded that "the regulations make it difficult to present a substantive health claim (for example, one involving cardiovascular benefits associated with moderate alcohol consumption) on an alcohol beverage label, because of the level of qualification and explanation that would be necessary to set forth the risks associated with such consumption." ... The agency has not demonstrated, to the satisfaction of First Amendment commercial speech scrutiny, that such health statements are misleading absent the now-mandated disclaimers.

Lofton LK. Drunk driving and deportation: Should DUI convictions be treated as crimes of violence for INS removal purposes? Washington University Law Quarterly 81(Summer): 591-607, 2003. (133 legal refs.)

Drunk driving poses serious social problems in the United States. Thus, under the BIA's current approach, an alien who lives within the jurisdiction of the Tenth Circuit will likely be deported while an alien convicted of drunk driving in the Third Circuit will be allowed to remain in the United States. The Second, Third, Fifth, Seventh and Ninth Circuits, believing a crime of violence requires the intentional use of force, have held that drunk driving does not constitute a crime of violence under 16 because it does not involve the use of intentional force. In analyzing the issue, the Ninth Circuit used the categorical approach, assessing whether "the full range of conduct encompassed by [the statute] constituted an aggravated felony. On appeal, the alien argued that a conviction under Idaho's DUI statute does not necessarily indicate that a crime of violence has been committed because drunk driving does not "by its nature involve a substantial risk that physical force may be used in the course of committing the offense. When considered in conjunction with the dire effects of deportation and the availability of alternate penalties, classification of drunk driving as a crime of violence seems excessive.

Lucas L. A new approach to the wine wars: Reconciling the twenty-first amendment with the commerce clause. (editorial). UCLA Law Review 52(3): 899-935, 2005. (16 refs.)

At a time when consumers enjoy an unprecedented level of access to the goods of their choice, why does a patchwork of state laws prevent equal access to one class of goods: alcoholic beverages? The not-so-simple answer lies in the history and application of section 2 of the Twenty-first Amendment, and in the tension between the Twenty-first Amendment and the Commerce Clause. Spearheaded by farmers, wineries, and consumers who seek to expand the market for wine beyond the traditional three-tier system, the "wine wars" of recent years have challenged state statutes that ban or greatly restrict the direct shipment to state residents of wine and other alcoholic beverages from out-of-state sources. Opinion across the circuit courts is divided: The Second and Seventh Circuits favor a strict interpretation of section 2 and have upheld New York and Indiana bans on direct shipment of wine to consumers; the Third, Fourth, Fifth, Sixth, and Eleventh Circuits have enjoined states from enforcing their direct shipping prohibitions and favor an approach that relies on the Dormant Commerce Clause and a realistic assessment of the national wine market. In its 2004-2005 Term, the Supreme Court has consolidated three cases from the Second and Sixth Circuits for review to answer the question: "Does a State's regulatory scheme that permits in-state wineries directly to ship alcohol to consumers but restricts the ability of out-of-state wineries to do so violate the dormant Commerce Clause in light of Sec. 2 of the 21st Amendment?" This Comment asserts that reconciliation of the Commerce Clause and the Twenty-first Amendment is preferable to historical interpretations of the Twenty-first Amendment as an exception to the Commerce Clause; specifically, it argues for a reconciliation of the two provisions by analogizing to First Amendment jurisprudence and by using the methodology employed by the Court in R.A.V. v. City of St. Paul. Note: On May 16th the Supreme Court issued a ruling that allows wine to be sold by male and sent out of state.

Mailly P. Fine wine and ideal theory: The questionable denial of liver transplanation in alcoholics. Windsor Yearbook of Access to Justice 23: 95-112, 2005. (97 legal refs.)

Alcoholics are often considered 'less worthy of liver transplantations than non-alcoholics. This paper explores that intuition by assessing arguments for and against providing alcoholics with liver transplants. Arguments examined are: cost-utility arguments (related to quality of life, recidivism, survival and rejection rates in alcoholics post-transplant), arguments from personal responsibility, arguments that worry about discrimination, and arguments from a more general philosophical standpoint known as 'luck egalitarianism. The paper concludes that not one of these approaches provides convincing reasons for disfavouring alcoholics when choosing who should receive scarce donor livers. In this respect, alcoholics should be placed on at least an equal footing with non-alcoholics.

Martin EL. A toast to the dignity of States: What eleventh amendment jurisprudence portends for direct shipment of wine. Hofstra Law Review Summer: 1303, 2003. (375 legal refs.)

It started out as just a simple bet between the Governors of California and Florida - Governor Gray Davis agreed to send Florida Governor Jeb Bush a case of California cabernet if his state's Oakland Raiders lost to the Tampa Bay Buccaneers in Super Bowl XXXVII. But this simple bet grew quickly into a snafu when Governor Davis tried to settle the bet and ship a case of wine to Florida, one of thirty-seven states that restrict direct shipping of wine under Prohibition-era laws. When confronted with the legal consequences of violating Florida's strict direct shipment law, Governor Davis chose to avoid the potential for being extradited and charged with a felony. Instead, he decided he would just have to hand-carry two bottles to Governor Bush at a meeting in Washington, D.C. While Florida's law may seem bizarre, it represents a common theme that runs through the patchwork of the fifty states' direct shipment of wine laws. As support for the opposing sides of the direct shipment argument increases and media coverage grows, federal courts around the nation are confronting the contentious issue of direct shipment of wine that implicates constitutional issues of federalism, states' rights, and Commerce Clause power. In Part II, this Note will explain the "wine war" that is currently being waged in courts and legislatures in many states. The background of the direct shipment of wine issue will be fleshed out, including a discussion of the players in the legal battle and a summary of the states' regulatory laws on direct shipment. Part III highlights the lower court cases that have already been decided in the "war" and will review commentaries that have been published concerning these decisions. In Part IV, the Supreme Court's emphasis on the sovereignty and the dignity of the States in its recent Eleventh Amendment cases will be used, not for its specific constitutional subject matter, but as evidence of the Court's current approach to issues concerning state power. Part V uses Eleventh Amendment jurisprudence in discussing how the Supreme Court may rule on the direct shipment issue considering its commitment to the "dignity" of the state and its recent history of upholding states' rights. Part VI concludes that states' prerogatives under the Twenty-First Amendment should not overcome the Commerce Clause's purpose of eliminating economic protectionism and encouraging a robust national economy. Nevertheless, if the direct shipment of wine issue reaches the Supreme Court, it is likely, in light of recent Eleventh Amendment jurisprudence, that the Court will protect the states' right to prohibit or limit direct shipment of wine from out-of-state producers to the homes of in-state consumers. While this decision would denigrate the negative implication of the Commerce Clause prohibiting states from putting an undue burden on interstate commerce, the Court may view the Twenty-First Amendment as being preeminent in this situation because it implicates the sovereignty of the states. Throughout United States history, the law has treated alcohol differently from any other product, with states having exclusive control over its regulation. To diminish that control could be viewed by the current Supreme Court majority as diminishing the dignity and infringing on the sovereignty of the states.

Mawdsley RD. Random drug testing for extracurricular activities: Has the Supreme Court opened pandora's box for public schools? Brigham Young University Education and Law Journal 2: 587-622, 2003. (182 refs.)

One way to address drug use in schools is drug testing of students. The Supreme Court, in Board of Education v. Earls (Earls), opened the door to allow public schools to engage in suspicionless random drug testing of students participating in extracurricular activities. Whether drug testing will be a panacea or a Pandora's Box for public schools is not clear. Any school expecting that the use of random drug testingwill deter or excise student drug use needs to consider a number of legal issues. The purposes of this article are to review the various drug testing approaches that school districts have taken to address drug use, examine the legal challenges that have resulted, and consider legal issues related to the design and implementation of a drug testing policy. Statistics suggest high rates of drug use among junior high and public high school students. Even though the Supreme Court in Earls suggests that deterrence of drug use among students is a sufficient basis for a random drug testing policy, school boards are probably better served to assert additional reasons in support of their drug testing policies. In Vernonia, the school district's random drug testing policy was silent as to who was to receive the medication lists. Drug testing policies need to provide that parents of students testing positive for prohibited substances will be notified and that at a parent conference with a designated school official they will have an opportunity to explain the positive results. In Trinidad School District v. Lopez, the Colorado Supreme Court invalidated a random drug testing policy that would have resulted in a student being suspended from an extracurricular activity (marching band) as well as receiving a failing grade in a for-credit instrumental class that required participation in the marching band.

McAlister AL; Huang P; Ramirez AG. Settlement-funded tobacco control in Texas: 2000-2004 Pilot project effects on cigarette smoking. Public Health Reports 121(3): 235-238, 2006. (8 refs.)

Because settlement proceeds allocated for tobacco control in Texas are insufficient for statewide activity at federally recommended funding levels, the Texas Department of State Health Services has used the available funds in quasi-experimental pilot studies in which varying amounts of support are provided for selected parts of the state. Trends in tobacco use were measured in telephone surveys of 7,998 (2000), 5,150 (2002), and 5,721 (2004) adults. Prevalence of cigarette smoking declined by almost one-third in the pilot area where comprehensive and sustained pilot activities to reduce tobacco use were organized at close to the federally recommended funding level. Significantly smaller reductions were observed in other parts of the state. In the group with the highest use, white non-Hispanic men, cigarette consumption declined by half in the pilot area. It is reasonable to expect similar reductions in tobacco use if funds are provided for statewide expansion of the pilot activities.

McCabe TL. Review of Selected 2003 California Legislation. Health and Safety: It's high time. California attempts to clear the smoke surrounding the Compassionate Use Act. McGeorge Law Review 35: 545-560, 2004. (137 refs.)

In November 1996, Californians voted in favor of Proposition 215, known as the "Compassionate Use Act" ("Act"). The Act ensured the right of patients to obtain and use marijuana in California to treat specified serious illnesses. Additionally, the Act protected physicians who appropriately recommended the use of marijuana to patients for medical purposes and exempted qualified patients and their primary caregivers from California drug laws prohibiting possession and cultivation of marijuana. Since its enactment, uncertainties in the Act have became evident. Police challenged with enforcing the Act encountered difficulties in distinguishing between legitimate and illegitimate marijuana uses. Both federal and California state courts sifted through often murky issues in adjudicating charges brought against defendants claiming protection under the Act. Seeking t enhance precision of the Act, a senate bill was introduced and enacted as Chapter 875. it affects the scope and application of the Act, establishing requirements and guidelines for implementation of a state regulated program in California for issuing identification cards to qualifying patients and their primary caregivers. To clarify the effects of Chapter 875, identify persisting legal conflicts, and evaluate the limitations afforded by Chapter 875, this article explores the following issues: (1) provisions of Chapter 875 that augment the Act, (2) conflicting federal laws, (3) establishment of a state regulated identification card program, and (4) conduct not protected by Chapter 875. In conclusion, the author notes that currently, nine states, including California, have laws permitting the use of marijuana for medical purposes. Surveys indicate that eighty percent of Americans support the use of marijuana for medical purposes. In light of this it is concluded that Chapter 875 succeeds in bolstering and expanding California law that supports the right of seriously ill Californians to obtain and use medical marijuana. However, Chapter 875 creates new loopholes, and opens the door to potential abuses by recommending physicians and persons wishing to gain access to marijuana. The ID card program establishes an effective tool for law enforcement and promotes consistency in statewide application of the Act, enhancing California's ability to regulate lawful marijuana-related conduct. Significantly, federal law banning conduct permitted under Chapter 875 is unaffected. Although the Ninth Circuit has seemingly removed medical marijuana-related activities in California from the scope of CSA regulation, the United States Supreme Court has granted certiorari to resolve the long-debated issues surrounding the use of marijuana for medical purposes. The Court's ruling may reach beyond the issue of medical marijuana, and redefine Congress' power pursuant to the Commerce Clause.

McIntosh K. Recent developments in marijuana possession law. Appeal: Review of Current Law and Law Reform 10: 40-53, 2005. (71 legal refs.)

Marijuana possession is a contentious issue. For decades the topic has been the subject of a raging national debate involving the media, politicians, lawyers, and everyday citizens. Should marijuana possession be criminal? Should it be decriminalized? Should it be legal? Is the prohibition on marijuana possession constitutional? Should ill Canadians be able to legally consume marijuana? Historically the debate involved significant discussion but little action. More recently there has been a flurry of activity. In less than five years, the issue has gone before several appellate courts, including the Supreme Court of Canada. Regulations were developed to allow seriously ill persons to legally possess and cultivate marijuana. Furthermore, a marijuana decriminalization bill was put before the House of Commons. These significant events, combined with a brief discussion of the history of marijuana possession, are the focus of this paper.

McMahon TJ; Giannini FD. Substance-abusing fathers in family court: Moving from popular stereotypes to therapeutic jurisprudence. Family Court Review 41(July): 337+, 2003. (100 refs.)

Given the impact substance abuse typically has on capacity for effective parenting, substance-abusing fathers often find themselves in family court, and once involved in family court proceedings, they often confront family court personnel with difficult situations that must somehow be resolved in the best interests of their children. As substance-abusing fathers arrive in family court, social attitudes concerning the nature of substance abuse will undoubtedly collide with traditional ideas about parenting such that men with alcohol and drug abuse problems are likely to be viewed as entirely negative influences that need to be actively excluded from the lives of children. When compared with children whose father has no history of substance abuse, children with an alcohol- or drug-abusing father are much more likely to develop psychiatric and substance abuse problems as they move from early childhood through adolescence to early adulthood. However, within that literature, quality of family environments repeatedly emerges as a critical influence in pathways to psychiatric and substance abuse problems in children with a family history of alcohol or drug abuse. Consistent with popular stereotype, McMahon (in press) found that male drug-dependence was associated with pursuit of a shorter term reproductive strategy characterized by an earlier onset of parenthood and production of more children with more women in the context of (a) less stable sexual partnerships, (b) less social capital, and (c) less commitment to parenting. Although all forms of substance abuse disproportionately affect men during early to middle adulthood, when many are fathering children, the status of substance-abusing men as parents is largely ignored in public policy, service delivery, and research exploring the consequences of chronic drug and alcohol abuse. In this review, the authors highlight issues of potential concern to professionals working with this poorly understood, negatively stereotyped population of fathers in family court settings. After reviewing the existing literature on substance-abusing fathers and their children, the authors challenge family court personnel to use (a) awareness of stereotyping, (b) clinical assessment, (c) the principles of therapeutic jurisprudence, and (d) treatment resources to minimize, as much as possible, the risk for poor developmental outcomes incurred by children with a substance-abusing father.

Meyer JN. Chemically dependent employees and the ADA in the medical profession: Does patient safety exempt hospital employers from compliance under the direct threat and/or the business exceptions? North Dakota Law Review 80: 241-252, 2004. (97 refs.)

Summary. The Americans with Disabilities Act of 1990 (ADA) and the North Dakota Human Rights Act (NDHRA) deal with an employee's right to be protected from discriminatory employment actions based on disability, and the employer's responsibilities to a disabled employee. An employee with a chemical dependency disability presents unique problems to an employer such as a hospital, where doctors and nurses recovering from a drug addiction have access to narcotic medication and patient safety is of the highest priority. An employee with an alcohol or drug impairment must be substantially limited in a major life activity to trigger coverage under the ADA. Certainly in the case of hospitals, clinics, or other care giving facilities, a direct threat to patient safety exists when a treating nurse or physician is under the influence of drugs and/or alcohol. In dealing with a case of an impaired physicians, the court found that the employer was reasonable in termination, based on the numerous reports of alcohol odor. Ample evidence therefore existed to show that he was a direct threat to patient safety. The question, then, is whether a hospital employer must show that a particular employee with a chemical dependency disability is an actual direct threat to avoid ADA liability, or if the hospital can simply preclude such employees from certain positions based on the business necessity of safety. The author concludes that while an employer's responsibilities and an employee's rights under the ADA have been developed through case law, they are, unfortunately, still not clear regarding safety-sensitive positions and at what point the safety of a third party takes priority over accommodating an employee with a chemical dependency disability. Chemical dependency disabilities enjoy less protection than other disabilities under the ADA, and policies prohibiting such workers from safety-sensitive positions have been upheld as a business necessity in other circuits. The business necessity exemption applied in one case [Exxon], if applied more broadly, would be a more preemptive measure for employers, but would also have a more discriminatory effect on employees. Whether such an expansive policy of prohibiting all workers with chemical dependencies from treating patients would be accepted remains to be seen. Therefore, until the ADA and NDHRA are clarified through either further legislation or judicial interpretation, hospitals and employers remain in the untenable position of weighing the risk of tort liability for accidents resulting from a relapsed employee versus the risk of discrimination liability under the ADA and possibly the NDHRA.

Muggli ME; Hurt RD; Becker L. Turning free speech into corporate speech: Philip Morris' efforts to influence U.S. and European journalists regarding the U.S. EPA report on secondhand smoke. Preventive Medicine 39(3): 568-580, 2004. (11 refs.)

Background. Previously secret internal tobacco company documents show that the tobacco industry launched an extensive multifaceted effort to influence the scientific debate about the harmful effects of secondhand smoke. Integral to the industry's campaign was an effort to derail the Environmental Protection Agency's (EPA) risk assessment on environmental tobacco smoke (ETS) by recruiting a network of journalists to generate news articles supporting the industry's position and pushing its public relations messages regarding the ETS issue. Methods. Searches of previously secret internal tobacco industry records were conducted online and at the Minnesota Tobacco Document Depository. In addition, searches on the World Wide Web were conducted for each National Journalism Center alumnus. Lexis-Nexis� was used to locate news stories written by the journalists cited in this paper. Results. Philip Morris turned to its public relations firm Burson Marsteller to "build considerable reasonable doubt � particularly among consumers" about the "scientific weaknesses" of the EPA report. A Washington, DC, media and political consultant Richard Hines was a key player in carrying out Burson Marsteller's media recommendations of "EPA bashing" for Philip Morris. In March 1993, Philip Morris' vice president of corporate affairs policy and administration reported to Steve Parrish, vice president and general counsel of Philip Morris, that their consultant was "responsible for a number of articles that have appeared in � major news publications regarding EPA and ETS." In addition to placing favorable stories in the press through its consultant, Philip Morris sought to expand its journalist network by financially supporting a U.S. school of journalism; the National Journalism Center (NJC). Philip Morris gleaned "about 15 years worth of journalists at print and visual media throughout the country � to get across [its] side of the story" resulting in "numerous pieces consistent with our point of view." The company planned to "design innovative strategies to communicate [its] position on ETS through education programs targeting policy makers and the media" via the NJC. Finally, journalists associated with think tanks that were financially supported by Philip Morris wrote numerous articles critical of the EPA. Conclusions. This is the first report, from the tobacco industry's own documents, to show the extent to which the tobacco industry has gone to influence the print media on the issue of the health effects of secondhand smoke. Unfortunately, what we report here is that even journalists can fall victim to well-orchestrated and presented public relations efforts regardless of their scientific validity. It is not clear how various professional media organizations oversee the ethical conduct of their members. Certainly, on the topic of the health effects of secondhand smoke, more scrutiny is warranted from these organizations for articles written by their members lest the public be misinformed and thus ill served.

Nawaday KM. Apportioning asbestos-tobacco liability in Falise V-American Tobacco. Cornell Law Review 88(4): 1142-1177, 2003. (219 legal refs.)

In addition to sharing defendant status in the most recognizable mass-tort litigations in the United States, tobacco and asbestos companies have themselves been erstwhile adverse litigants. The fray between asbestos and tobacco companies arose from the former industry's efforts to defray its ever burdensome liability load. One can trace the first volleys between these two industries to asbestos defendants' attempts to attain apportionment of damages in actions involving smoker-plaintiffs who are claiming asbestos-related injuries. Although tobacco companies are not parties in these cases, asbestos defendants argue that plaintiffs' tobacco use triggers an offset of liability under the doctrine of comparative negligence. In 1997, riding the wave of third-party civil actions that health-care insurers brought against the tobacco industry under the Racketeer Influenced and Corrupt Organizations Act (RICO), certain asbestos defendants brought their own contribution claims against the tobacco industry. This Note discusses the import of one of these actions, Falise v. American Tobacco Co., which was adjudicated before Judge Weinstein in the Eastern District of New York. Part I of this Note summarizes the state of the asbestos litigation and the asbestos defendants' attempts to relieve their overwhelming liability burden. Part II discusses the background of Falise, including its facts, the general claims alleged, and the outcome. Part III dissects the Falise court's analysis and distinguishes it from other RICO third-party actions. It also proffers (1) rationales for better contribution devices as well as (2) justifications of the Falise court's use of RICO. Part IV concludes that Falise is distinguishable from other RICO contribution claims against tobacco companies. Tort defendants who find themselves in a similar predicament as the asbestos defendants need relief mechanisms, and RICO provides an innovative solution to the apportionment and contribution issue.

Nelson BK. Adding fuel to the fire: United States v. Booker and the crack versus craack versus powder cocaine sentancing disparity. University of Richmond Law Review 40: 1161-1191, 2006. (256 refs.)

The sentencing structures for crack and powder cocaine have been dramatically different since the Anti-Drug Abuse Act of 1986 established a 100:1 ratio as the penalty differential between the two drugs, and set the same punishment for five grams of crack as for five hundred grams of powder cocaine. The ratio was followed in the Federal Sentencing Guidelines (the "Sentencing Guidelines") and has evoked considerable criticism over the past twenty years. Litigants have challenged the ratio in courts, judges have expressed their displeasure with the ratio, and the United States Sentencing Commission (the "Sentencing Commission" or the "Commission") has issued three reports to Congress disapproving of the ratio. Still, offenders have been consistently sentenced according to the once mandatory Sentencing Guidelines following the ratio. In January 2005, the Supreme Court handed down its decision in United States v. Booker, 5 effectively rendering the Sentencing Guidelines advisory instead of mandatory, as they once were. Although the 100:1 ratio lives on in the mandatory minimums, the Sentencing Guidelines would often provide for a sentence harsher than the mandatory minimum. Now, courts have the flexibility to depart from the Sentencing Guidelines when dealing with the crack/powder disparity. The courts may use a lower ratio, as the Sentencing Commission and numerous scholars and judges have suggested, provided that they still abide by the mandatory minimum set forth in 18 U.S.C. 3553(a). In order to understand fully where the Booker decision leaves us with respect to the crack/powder debate, it is necessary to understand the background of cocaine and the history leading up to Booker. To that end, Part II of this comment discusses the history and background of cocaine, including a brief history of drug use, a comparison of crack and powder cocaine, the formation of the 100:1 ratio, and responses to the ratio's formation since 1986. Part III analyzes the topic of sentencing without guidelines, sentencing after the imposition of the Sentencing Guidelines, and the erosion of the Guidelines leading up to Booker. Part IV then combines the two broad topics and analyze the impact that the Booker decision will likely have on the ongoing debate over the penalties for crack and powder cocaine. It will explain how the decision adds more momentum to the debate, and argue that it adds enough fuel to the fire to encourage changes to the current penalty structure.

O'Brien CN; DeDarrow JJ. The question remains after Raytheon Co. V Hernandez: Whether no-rehire rules disparately impact alcoholics and former drug abusers? University of Pennsylvania Journal of Labor & Employment Law 7: 157-172, 2004. (77 refs.)

Summary: Thousands of employers throughout the United States have a so-called "no-rehire" rule, which usually means that if an employee is discharged, she is ineligible to reapply for employment at a later date. Where this misconduct related to alcohol or drug use, and the former employee is thereafter successfully rehabilitated and otherwise qualified