ARTICLES

School-Sponsored Speech and the Surprising Case for Viewpoint- Based Regulations
R. George Wright .........................................................................................................................................................175

Regulation of speech on the basis of the speech’s message or viewpoint is especially disfavored in the law. The courts have generally concluded that restricting speech based on anyone’s disapproval of the viewpoint or message of the speech poses the greatest danger to liberty of expression. This Article takes no issue with this principle as a general rule. The point of the Article, however, is to illustrate the logic of what should be a crucial exception to this general rule.
This exception addresses regulation based on message or viewpoint of what is commonly referred to as school-sponsored speech. School-sponsored speech is speech by anyone that at least reasonably appears to bear the approval or endorsement of public school authorities. While a majority of the courts and commentators who have addressed this important issue have wished to apply a strict scrutiny test to viewpoint-base regulations of public school-sponsored speech, this article explores why the balance of interests actually tilts against a strict scrutiny test, and in favor of a lower level of judicial scrutiny. Articles Editor, Erin R. Doyle


The Informational Role of Amici Curiae Briefs in Gonzales v. Raich
Paul Chen ...................................................................................................................................................................217

Many scholars have discussed the political and legal-doctrinal sources of the Supreme Court’s medical marijuana ruling in Gonzales v. Raich (2005), and about what the decision might mean for the Court’s federalism revival.  But another angle from which to approach the decision which may provide insight into its doctrinal sources is by examining the arguments and information provided in the legal briefs submitted to the Court, in particular those submitted by amici curiae (i.e. third parties to the litigation who have an interest in the outcome of the case).
The legal model of Supreme Court decision-making states that existing law and legal doctrine should influence the justices’ decisions. But implicit in the legal model is that not just law, but legal arguments, as submitted in the written briefs and oral arguments of parties and amici, influence the justices’ decision-making and opinion-writing. Research has shown that party briefs influence the Court’s decisions and development of law.
In this article, the author examines the impact that the amici curiae (AC) briefs had on the Court’s ruling in Raich, where the Court upheld the federal government’s authority to ban all uses of marijuana, even when such use was authorized by state law for medical treatment. By showing how all of the opinion-writers in that case incorporated arguments and information found only in the AC briefs, the author concludes that AC briefs do influence the Court’s substantive decision-making, a finding that contradicts political accounts of AC impact that deny such influence.  Further, by showing how some of the opinion-writers incorporated parts of arguments advanced in AC briefs while rejecting other points, the author concludes that the justices do not incorporate material from the briefs indiscriminately, but rather incorporate selectively those materials that they find the most
persuasive and relevant.  This case analysis of the AC brief influence in Raich lends further support to a legal model of Supreme Court decision-making that views the justices as concerned not only with implementing their policy preferences, but also with the persuasiveness of legal arguments and other legally-relevant information. Articles Editor, Kristin M. Beasley 
 

Race, Riches & Reporters Do Race and Class Impact Media Rape Narratives? An Analysis of the Duke Lacrosse Case Susan Hanley Kosse .....................................................................................................................................................243

Narrative is a device used to make sense out of our lives and experiences. Often, stories provide a framework for people to help in determining truth. When dealing with rape narratives, the importance of this framework cannot be overstated. Although unique in terms of facts, rape narratives should not vary depending on the race or class of the victim or the perpetrator. If the narrative incorporates elements of bias, prejudice or political views unrelated to the facts, the story is inherently flawed. These inherent flaws contribute to erroneous results in the courtroom and perpetuate a misunderstanding of rape in society.
Past research indicates that media rape narratives are often dependant upon the alleged victim’s and accused rapist’s race, class, or both. Scholars argue that the media is more sympathetic to the victim when a rape occurs between an upper middle class white woman and an African-American assailant. Conversely, if the allegation involves a rapist who is white or from a higher class, the media tends to place more blame on the lower class, minority victim. This Article examines media narratives from the recent high profile Duke case, comparing them to media narratives of previous rape cases to ascertain whether race and class are changing these narratives. The resulting data helps determine whether the Duke case further supports the proposition that race and class shape rape narratives or if these factors no longer affect how the stories are told. Articles Editor, Daniel R. Robinson, Jr.


eBay Auctions of Repossessed Motor Vehicles A Template for Commercial Reasonableness Under Revised Article 9
Richard H. Nowka ........................................................................................................................................................281

Secured parties with motor vehicle collateral are disposing of their repossessed collateral on eBay Motors, the internet auction site of eBay.com. Article 9 of the Uniform Commercial Code does not validate or invalidate internet dispositions of collateral, nor does it adopt any specific requirements for internet dispositions. Thus, a secured creditor selling repossessed collateral on eBay Motors must satisfy the universal standards of Article 9 for a valid disposition–reasonable notification of the disposition and commercial reasonableness of all aspects of the disposition. Article 9 adopts detailed provisions for notification, but the boundaries of "commercially reasonable" are determined mainly by the courts.
This article analyses how the Article 9 standards for disposition sales of collateral affect secured creditors selling repossessed motor vehicles on eBay Motors. Further, the article articulates a rationale that upholds the commercial reasonableness of eBay Motors auctions, details the steps a secured creditor should take to achieve a commercially reasonable auction, and provides form notices and agreements a secured creditor can use to help ensure the auction compiles with Article 9's standards. Articles Editor, Tracy Beck Kruger



Design Patents: An Alternative When the Low Standards of Copyright are Too High?
Ryan Vacca ..................................................................................................................................................................325
The standard for copyright protection is notoriously low the work must be independently created by the author and possess a minimal degree of creativity. Even with this low standard, blank forms, and other forms which do not convey information, are categorically denied copyright protection. In contrast, the standard for design patent protection is much more burdensome. Design patents protect news, original, ornamental, and non-obvious designs. Even though there is a higher standard, the Patent and Trademark Office has issued design patents for blank forms.
This article explores the blank forms doctrine in copyright law, articulated in Baker v. Selden. Later cases attempt to follow this doctrine, but their justifications for the rejection of protection for blank forms are unclear as to whether the doctrine is based on a lack of originality or a merger between ideas and expression. The article then discusses the design patent protection for blank forms and the overlap between copyright and design patent protection. It then discusses how the law’s refusal to protect blank forms under copyright law is necessarily inconsistent with the law’s protection of blank forms via design patents, and suggests possible judicial, Congressional, or administrative solutions to resolve this inconsistency. Articles Editors, Aadam M. Alikhan and Matthew J. Hodge

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