OHIO STATE JOURNAL LAW JOURNAL

OHIO STATE ON DISPUTE RESOLUTION
Joint Summer Writing Competition May 7-17, 2007 Table of Contents

This packet contains the following materials: • Official Rules • Topic 1 & Approved Sources; Topic 2 & Approved Sources • List of Proofreading Marks • Editing Assignment • Writing Competition Cover Sheet • FERPA Grade Release Form
If you did not attend one of the mandatory meetings March 30–31 or did not obtain an exemption from the Editors-in-Chief of the journals, you are not eligible to participate in the competition. Before you begin working, please read the Official Rules carefully. If you have misplaced your copy of the Rules, you may access a copy on the journals’ websites: Ohio State Law Journal http://moritzlaw.osu.edu/lawjournal Ohio State Journal on Dispute Resolution http://moritzlaw.osu.edu/jdr/

Essay: Choose one of the two topics to write about. You may take any position you wish. Both journals will consider you for membership regardless of your choice of topic or position. The number of pages of reading for each topic is approximately equal. Be sure that your paper conforms to the format requirements explained in the Rules, and hand in 11 copies of it. Failure to conform to the format requirements will result in the deduction of points. Editing Assignment: Detach the editing assignment from this packet. Make the text and footnotes conform to all applicable Bluebook rules, and indicate necessary changes to spelling, grammar, punctuation, etc. Do not make any substantive changes, and do not try to look up any of the sources mentioned in the editing assignment. Be sure to hand in 2 copies of the editing assignment. FERPA: You must also complete the FERPA Grade Release form so that the Journals can obtain the necessary grade information from the Registrar. Rubber band both stapled copies of the editing assignment, eleven stapled copies of the legal analysis paper, and the FERPA sheet and place them behind the Cover Sheet, which is included in this packet. Do not write your name or any identifying information anywhere except the Cover Sheet and FERPA form. Give everything to PAT SCHIRTSINGER in Room 220 by Thursday, May 17, at 4 p.m., or postmark your materials by May 17. The address information can be found in the Official Rules packet.

If you have questions or problems during the competition, contact one of the neutral parties named in the Official Rules. Do NOT consult anyone else, including fellow students. Good luck!

OHIO STATE JOURNAL LAW JOURNAL

OHIO STATE ON DISPUTE RESOLUTION
Joint Summer Writing Competition May 7-17, 2007 Writing Competition Cover Sheet

Name: _________________________ _______ Class Year (Rising 2L/3L): ________________ Please consider this application for membership with (please check all applicable)

o Ohio State Law Journal o Ohio State Journal on Dispute Resolution
Checklist: Please make sure that you have completed each of these steps before turning in your writing competition submission.

◊ ◊ ◊ ◊ ◊ ◊ ◊

Included 11 copies of Essay on one of the two provided topics Included 2 copies of the Editing Assignment Followed all formatting rules found in the Competition Official Rules Completed the Cover Sheet Signed the FERPA Grade Release Form Have followed all applicable Competition and Honor Code Rules Turned in / Post-marked Completed Competition Submission to Pat Shirtsinger in Room 220 by 4 p.m. Thursday, May 17.

Honor Pledge: By signing my name below and submitting this application, I attest to the best of my knowledge that I have in good faith followed all applicable Writing Competition and Honor Code Rules, as found in the Writing Competition Official Rules and the Moritz College of Law Honor Code. Specifically, I have not consulted with any person (teacher, student, or otherwise) and I have not conducted any outside research in the preparation of my submission. I understand that my failure to comply with these rules may result in my disqualification from the competition and disciplinary proceedings pursuant to the Honor Code. ________________________ (Applicant’s signature)

OHIO STATE JOURNAL LAW JOURNAL

OHIO STATE ON DISPUTE RESOLUTION
Joint Summer Writing Competition May 7-17, 2007 FERPA Grade Release Form

Name: _________________________ _______ Class Year (Rising 2L/3L): ________________ Date: ___________

By signing below, the signing party recognizes the following:
I waive my rights under FERPA and give my consent to the registrar's office to release information in my academic records in accordance with the Law Journal's grade-on procedures.

________________________ (Applicant’s signature)

OHIO STATE LAW JOURNAL

OHIO STATE JOURNAL ON DISPUTE RESOLUTION

Joint Summer Writing Competition May 7-17, 2007 Official Rules
To participate in the competition, you must write a legal analysis paper, which will account for 85% of your score, and complete an editing assignment, which will account for 15% of your score. You may pick up the competition materials on Monday, May 7, from 3:00 p.m. to 5:30 p.m. or Tuesday, May 8, from 9:00 a.m. to 1:00 p.m., in the Journal Suite (Room 174). You must submit 11 copies of your legal analysis paper and 2 copies of the editing assignment no later than Thursday, May 17, at 4:00 p.m. to PAT SHIRTSINGER, Drinko Hall 220F (Dean’s Suite) (drop-off hours are 12:30 to 4:00 p.m., Monday – Friday). Do not write your name on any of the materials you submit except for the required cover sheet, which will be attached to the competition materials. It is to your advantage to pick up the competition materials in person because you will also receive a paper copy of the approved sources for your submission. If you leave before May 7, or if you lose the paper topics and editing assignment after you pick them up, you may access the materials on the journals’ websites: Ohio State Law Journal http://moritzlaw.osu.edu/lawjournal Ohio State Journal on Dispute Resolution http://moritzlaw.osu.edu/jdr/

Please note that the competition is limited to students who attend one of the two mandatory meetings on March 28 and 29, and to those who present a valid excuse for their absence in advance. If you do not satisfy that requirement, the journals will not score anything you submit. If you are unable to hand in your materials in person, you may mail them, postmarked by May 17, to Pat Shirtsinger, Dean’s Suite, The Ohio State University Moritz College of Law, 55 West 12th Avenue, Columbus, OH 43210. We recommend that you use certified mail to ensure proof of delivery. Although the Ohio State Law Journal will automatically offer membership to students ranked in the top 10% of the first-year class who apply for membership, and the Ohio State Journal on Dispute Resolution will automatically offer membership to the top two students in each legal writing class who apply for membership, we strongly encourage all students to participate in the writing competition. Grades and class ranks will not be available until well after the competition is over. Both journals will select about half of their new members from the competition, so it is wise to participate in the competition even if you think you have a chance of “grading on.” Despite this warning, if you still prefer to forgo the writing competition and take your chances with grading on, you must still apply for membership. Applying for membership entails turning in the cover sheet attached to the final packet by May 17 and

completing the editing assignment. If you grade on, the editing assignment will obviously not count toward determining your membership, but it will help us to assess your editing skills for the coming year. In addition to this competition, we encourage you to consider applying to the Ohio State Journal of Criminal Law, I/S: A Journal of Law and Policy for the Information Society, and Entrepreneurial Business Law Journal, which have separate selection processes.

The Legal Analysis Paper
General Form: The form of this paper is similar to that of an essay or term paper that you probably wrote for some courses in college. It is neither a legal memorandum nor a brief. Your paper should have a thesis, a body that demonstrates the thesis, and a conclusion that restates the thesis and suggests the future implications of the thesis. Topics: You must choose one of two topics that we will supply. The first topic may concern any area of law. The second topic will be related to alternative dispute resolution. Both journals will read your paper and consider your membership application regardless of the topic you select. Therefore, you should choose the topic that interests you more. Your Task: In our explanation of the topics, we will ask you to take a position on the topic you choose and defend it in light of the existing law that we will provide for you in the competition sources. We are interested in your ability to present a good argument and use research materials for appropriate support. Your choice of one position over another will not affect your score. Your Thesis: In developing your thesis, it is useful to think about several questions: What kind of law or dispute resolution procedure should there be in this area? Do you base your recommendations on a faithful interpretation of the Constitution, judicial precedent, canons of statutory construction, academic commentators with interesting policy arguments, pure logic, or some combination of those? Can you think of relevant perspectives on the problem that others have not considered? Some Advice: Notice again that your task is prescriptive as well as descriptive. Your purpose is to also present a point of view, not merely to explain what the law supposedly is. Legal memorandums and briefs are purportedly descriptive: “I predict that the court’s position will be . . .”; “Your Honor, this is what the law says, and it happens to favor my client, so you should rule in our favor.” Your supervisor or the judge may or may not believe you, of course, but they expect you to discuss what the law seems to be. In this legal analysis paper, however, we expect you to also evaluate the law or procedure critically. Your point of view should be overt. Your position might not have any support in the case law, and thus would be unlikely to persuade a judge to rule for you, but if you present good policy arguments, you will show that your position is valid despite the lack of judicial precedent. There are many routes to producing a good legal analysis paper; we are simply suggesting ways for you to approach it.

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Additionally, we have placed a few papers from last year’s competition on reserve at the law library circulation desk. Ask for the “Law Journals Writing Competition Packet.” Although the papers on reserve were successful in the last competition, and we think they are very good, perhaps the best examples of the kind of writing we are looking for can be found in the articles and notes published in our journals. Closed Research: The paper is a closed research assignment. We will provide a list of sources for you to use for each topic, and Lexis will provide a copy of all the sources when you pick up the competition problems on May 7 or 8. You may NOT consult any other sources in order to write your paper. Consulting unapproved sources is a violation of these Rules and may constitute a violation of the College of Law’s Honor Code; moreover it cannot help, and can only hurt your score in the writing competition. Do not let the amount of reading material dissuade you from participating in the competition. It is not necessary to use all of the approved sources in order to write your paper. Footnotes: Cite your sources frequently, using Bluebook rules for law review footnotes. We are interested in your ability to apply these rules in your paper; accuracy of citations is one of the criteria we use to evaluate your work. Footnotes generally should be limited to simple citations of sources. Do not insert lengthy arguments into your footnotes; those arguments belong in the main text. Thus, each of your footnotes should occupy no more than a few lines each, although you may have as many footnotes as you need. You may cite only to the approved sources. You may provide parenthetical citations to unapproved sources that are cited or quoted within the approved sources. See Bluebook Rules 1.5 and 10.6.2 for examples of parenthetical citations. An example of one of these is given below, in the discussion of the editing assignment. Format Requirements: Your paper may not exceed 10 pages and must meet the following specifications: Standard 8 ½ x 11 white paper Each copy stapled in the upper-left corner Title on page 1, centered, 14-point Times New Roman font Double-spaced text, 12-point Times New Roman font Single-spaced footnotes, 10-point Times New Roman font 1-inch margins on all four sides Page numbers centered at the bottom of each page (but there is no number on page 1) Remember that you must submit 11 copies of your paper and 2 copies of the editing assignment. If you do not follow these format instructions, points will be deducted from your score.

The Editing Assignment
General Form: The editing portion of the competition will involve an excerpt of an unpublished law review article used with the permission of the author. You may use only the Bluebook and a standard English (non-legal) dictionary for this assignment. You may not look up any of the sources mentioned in the excerpt; if you try to look any of them up, you will violate the Rules of the competition. 3

Your Task: We will ask you to make the text and footnotes conform to all applicable Bluebook rules and formatting requirements. All titles and headings should follow the format detailed in the “Titles and Headings” handout. Additionally, you must correct textual errors involving spelling, grammar, syntax, punctuation, and typography. We will provide a list of proofreading marks for you to use to indicate your corrections in the margin. All of your markings must be legible on both of the copies of the editing assignment that you submit. For instance, if you use a pencil, press firmly enough to ensure that your markings show up on the photocopy you will make. An Example. Suppose the following footnote appeared in the editing assignment: Laro v. New Hampshire, 259 F.3d 1, 20 (1st Cir. 2001) (Lipez, J., dissenting) (citing Brian Ray, Note, “Out the Window”? Prospects for the EPA and FMLA After Kimel v. Florida Board of Regents, 61 OHIO ST. L.J. 1755, 1783 (2000)). Remember that you cannot look up this source on Lexis, Westlaw, or in the reporter. Thus, you must assume that personal names like “Laro” are spelled correctly; that the case actually begins on page 1 of volume 259 of the Federal Reporter, Third Series; that page 20 is the correct pinpoint citation; that the case was decided in the First Circuit; that this is a dissenting opinion; that it actually cited the Ray note; that the Note actually begins on page 1755 of volume 61 of the Ohio State Law Journal; and so on. There are many things that you cannot assume, however: Are abbreviations used correctly? Is each element of the citation spaced correctly (e.g., is it F.3d or F. 3d)? Are the elements of the citation in the proper order? Are the right words capitalized? Is punctuation correct? Are any required elements of this kind of citation missing? Many Bluebook rules are involved here. Be assured that we will place numerous mistakes in the editing assignment, and that some of the mistakes will be obscure, so you will need to be comfortable with the Bluebook.
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The Honor Code
The competition materials you submit must represent your work alone. Failure to adhere to these Rules will not only disqualify you from consideration for membership on a journal, it may also constitute a violation of the College of Law’s Honor Code. Here are some examples of ways you could disqualify yourself and violate the Honor Code: asking anyone (including other writing competition participants) for help or discussing the legal analysis paper or the editing assignment, including assistance in typing and proofreading, but not including procedural questions directed to the neutral parties named on page 5 of these Rules; consulting any sources not approved for the paper topics; plagiarizing any part of your paper, including failing to cite sources; looking up any of the sources mentioned in the editing assignment; and using a computerized spelling and grammar checker on the editing assignment. (You may use a computerized spelling and grammar checker on your legal analysis paper.) Both journals have a standard procedure for checking the accuracy of your text and footnotes that includes monitoring your use of Westlaw and Lexis. We have been successful in catching plagiarism in the past. Please, do not even think about sidestepping the Rules of the competition. We do not want to be placed in the position of having to disqualify you from the 4

competition and report you to the College of Law for a violation of the Honor Code, but we will have to do so if we discover evidence of cheating.

Questions and Problems
Until the competition begins, if you have questions you should ask one of the three people running the competition: Tiffany Lipscomb Note & Comment Editor Ohio State Law Journal 513-594-0646 (cell) tdlipscomb@gmail.com Xavier Edwards Note & Comment Editor Ohio State Journal on Dispute Resolution edwards.600@osu.edu Kate Winner Note & Comment Editor Ohio State Journal on Dispute Resolution 734-330-5395 (cell) winner.30@osu.edu

You may also ask any other members of the journals any questions you like. When the competition begins on May 7, however, the only people authorized to answer any questions you might have are the following neutral parties, none of whom will participate in the evaluation process: Melissa Rogers 614-378-5351 rogers.341@osu.edu

Uzo Idemudia 915-204-9110 Kaycee2g@hotmail.com Rob McCarthy robertfmccarthy@gmail.com

Paige Schweitzer schweitzer.50@osu.edu

The neutral parties will be happy to assist you. If an emergency arises in your life, such as a death in the family, contact one of the neutral parties, and he or she will relay a request for an extension to the Editors-in-Chief of the journals. Their decisions regarding extensions are final.

Membership Invitations
The evaluation process is completely anonymous. Pat Shirtsinger will assign a number to your materials and send them to the journals. No member of either journal will have access to the identities associated with the numbered materials until final decisions have been made. Each journal has its own evaluation process for the legal analysis papers. Several members of each journal will read your paper and score it. The readers will focus on the quality of your argument, use of the approved sources, organization, writing, and citations. The journals jointly score the editing assignment. 5

The journals encourage 2Ls to participate in the competition, but neither journal will be able to accept as many 2Ls as 1Ls. Current 2Ls will be journal members for only one year (their third year of law school), and each journal must ensure that there will be enough staff for appointments to the managing boards for the 2007–2008 academic year. The Ohio State Law Journal, Ohio State Journal on Dispute Resolution, Ohio State Journal of Criminal Law, I/S: A Journal of Law and Policy for the Information Society, and Entrepreneurial Business Law Journal will have a common membership notification date in late July. We do not know the exact date right now, but all five journals will mail and/or email their acceptance and rejection letters on the same day in late July. You will have one week from the notification date to accept or decline an invitation to join a journal. If you receive an invitation from more than one journal, you may choose only one and must relay your decision to each journal that accepted you. Students studying abroad at Oxford or elsewhere will be notified of how long they have to accept or reject an invitation when they receive notification from the journals. We will seal acceptance and rejection letters in individual envelopes and mail them all in a single package to Professor Simmons who is directing the Oxford program this year. He will then distribute the sealed envelopes to students. We will also attempt to notify those students in Oxford via email. If you accept an invitation to join a journal, you must return to the College of Law the week of August 5 (with Sunday being deemed the first day of the week) for a few days of orientation and work on editing projects. We recommend that you be prepared to devote the entirety of 3-4 days to your journal. It is difficult to continue working somewhere else at the same time because you will be very busy with your journal, preparation for on-campus interviews, and soon enough, a full load of classes. If an emergency arises, you must contact the Editor-in-Chief of your journal: Chad Eggspuehler for the Ohio State Law Journal (chad.eggspuehler@gmail.com); Erik Stock for the Ohio State Journal on Dispute Resolution (stock.55@osu.edu). Otherwise, we expect to see you at orientation. As a member of a journal, you will be required to complete editing assignments and write a student note of publishable quality, which will be due in March. Members receive one credit per semester for successful completion of journal work. Four semesters of satisfactory journal work satisfies the second writing requirement for the J.D. degree. Students who choose to participate in the management of a journal during their third year of law school receive one additional credit, for a total of five. Members of the Ohio State Journal on Dispute Resolution can count three of the up-to-five journal credits toward the fifteen credits required for the Certificate on Dispute Resolution. Good luck with the competition! We look forward to reading your work, and hope to welcome you as a staff member of one of the journals next year.

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Editing Assignment

Can Congress Squeeze the “Juice” Out Of Professional Sports? The Constitutionality of Congresional Intervention into the Professional Sport’s Steroid Controversy
TIFFANY D. LIPSCOMB * I.INTRODUCTION In June of 2003, a Pandora’s box of controversy was opened which has yet to be closed. 1 The U.S. Anti-Doping Agency received a package from an anonymous track and field coach containing a used syringe. 2 After testing, the syringe was found to contain a hybrid steroid cocktail that was previously not detectable by drug testing procedures. 3 The anonymous coach claimed the steroid was being supplied to athletes by Victor Conte, president of the Bay Area

*

May 2008 J. D. Candidate at Ohio State University Moritz College of Law. Though the use of steroids has a long history in many different sports, see Maxwell J.

1

Mehlman, Elizabeth Banger, & Matthew M. Wright, Doping in Sports and the Use of State Power, 50 St. Louis Law Journal 15, 17–21, 2005, this Note will deal exclusively with the recent steroids scandal plaguing the MLB and the NFL.
2

See Mark Zeigler, Anatomy of a Drug Investigation, SAN DIEGO UNION-TRIB.,

November 2, 2003, at C7.
3

See id

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Editing Assignment Laboratory Cooperative (“BALCO”). 4 This information prompted an investigation into BALCO by the Department Of Justice and the Internal Revenue Service, 5 which, coupled with the release of former professional baseball player Jose Conseco’s book Juiced, 6 exposed several high profile athletes to public scrutiny and criminal and congressional questioning regarding possible steroid use. 7 Major League Baseball (“MLB”) has seen former heroes such as Jason Giambi, Jeremy Giambi, and Gary Sheffield hailed before grand juries, 8 while Congress has taken testimony from Rafael Palmeiro, Jose Conseco, and home-run

4

See Zeigler, supra note 2; see also Jeffrey Kluger, The Steroid Detective, TIME, Mar. 1,

2004, at 60.
5

See David K. Osei, Note: Doping, Juicing, and Executive Bypass Oversight: A Case

Study of Major League Baseball’s Steroid Scandal, 4 VIRGINIA SPORTS & ENT. L.J. 155, 156–157 (‘04).
6

See COUNTDOWN (MSNBC television broadcast Feb. 16, 2005) (stating that Conseco

pegged Mark McGwire, Jason Giambi, Juan Gonzales, Rafael Palmeriro, and Vonne Rodriguez, as well as others, as steroid users); see also Barid Helgeson, Committee Passes Statewide Testing for Use of Steroids, TAMPA TRIB., Mar. 31, 2005, at 1 (noting that, in Juiced, Conseco claimed to have used stereoids and injected Mark McGwire with steroids).
7

See id.; Ian Bishop & Bill Sanderson, Home-Run Hero Bats a Big Zero McGwire

Refuses to Come Clean, N.Y. POST, Mar. 18, 2005, at 6.
8

See John Crumpacker & Mark Fainaru-Wada, Sports and Drugs: Star-Studded Day for

the Grand Jury, S.F. CHRON., Dec. 12, 2003, at C1.

2

Editing Assignment king Mark McGwire. 9 Potential Hall-of-Famer Barry Bonds has been in the middle of the controversy as well, serving as a link between many other players and BALCO. 10 The National Football League (“NFL”) also saw players brought before grand juries to testify about steroid use, including four-former Oakland Raiders: Bill Romanowski, Barret Robbins, Chris Copper, and Dana Stubblefield. 11 In 2006, both the MLB and the NFL garnering more press coverage, bringing steroid usage back to the forefront. MLB Hall of Fame ballots bearing the name of McGwire has prompted a serious debate as to whether possible steroid use should bar induction of a otherwise likely Hall-of-Famer. 12

9

See Bishop & Sanderson, supra note 7. See Crumpacker & Fainaru-Wada, supra note 8. Id. See Michael Hunt, A Certain Hall of Fame Ballot Won’t Have McGwire’s Name

10

11

12

Checked, MILWAUKEE J. SENTINEL, Dec. 2, 2006, available at www.jsonline.com/story/index.aspx?id=537667 (noting that, though McGwire has outstanding statistics, 75% of Hall of Fame voters have stated they will not vote for McGwire); Tony Massarotti, Covering All Bases; Goin’ Out With a Bang, BOSTON HERALD, Dec. 31, 2006, at B33 (stating that, due to steroid use, McGwire is “not getting in this time and he may never get in”); Rick Hummel, Lost in the Shadow, ST. LOUIS POST-DISPATCH, Jan. 4, 2007, at D1 (observing that there is “more buzz” about McGwire likely not getting into the Hall of Fame than about Tony Gwynn and Cal Ripken, Jr. being voted in)

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Editing Assignment The NFL saw two steroids stories break, confirming that the problem with steroids is not only a problem for the MLB. 13 San Diego Charger linebacking sensation Shawn Merriman, former Rookie Defensive Player of the Year and candidate for Defensive Player of the Year in 2006, tested positive in October for steroids. 14 Perhaps more shocking is the news coverage over non-detected steroid use by the 2003 National Football Conference Champion Carolina Panthers. James Shortt, a South Carolina doctor, pleaded guilty to conspiracy to distribute steroids and human growth hormones to Panthers players. 15 Evidence was produced showing that five players extensively used steroids during the 2002 season, 16 but the NFL did not detect the use. 17 This egregious mistake by the NFL

Though not a steroid positive test, Barry Bonds was reported to have failed a test for amphetemines, a performance enhancing drug prohibited by the MLB’s “Program.” See T.J. Quinn with Bill Madison, Failure Leaves a Testy Barry, Passes Blame to Teammate, N.Y. DAILY NEWS, Jan. 11, 2007, at 57.
13

See generally, Phil Taylor, Seeing is Believing: There’s Cheating in All Pro Sports—If

You Look Closely, SI.COM, Oct. 25, 2006, http://sportsillustrated.cnn.com/2006/writers/phil_taylor/10/25/merriman/index.html (noting that steroids are likely as big a problem in the NFL as in the MBL, though the NFL receives less media coverage)
14

See id. See EVAN WEINER, Incoming Congress May Tackle Several Sports Issues, N.Y. SUN,

15

January 4, ‘07, at 18.
16

See TAYLOR, supra note 13. See Weiner, supra note 15.

17

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Editing Assignment may lead to a new round of congressional investigations into doping in professional sports now that Democrats have retaken control of the House of Representatives. 18 The use of steroids by professional athletes not only raises issues regarding the integrity of the sports and the health of athletes, it also has ramifications for the youth of America. Congressional findings have shown that the use of steroids is escalating in high school as well, with the role model status of professional athletes influencing use in America’s children. 19 Even President Bush, in his 2004 State of the Union Address, spoke to the effect of professional athletes use of steroids on children: “To help children make right choices, they need good examples. Athletics play such an important role in our society, but, unfortunately, some in professional sports are not setting much of an example. The use of performance-enhancing drugs, like steroids in baseball, football, and other sports is dangerous, and it send the wrong message—that there are shortcuts to accomplishments, and that performance is more important than character.” 20 The issue has made professional steroid use relevant not only to sports fans and supporters, but those looking out for the well being of children.

18

See id. (Noting that Rep. Henry Waxman, a Democrat from California and new chair of

the House Committee on Government Reform, indicated in late summer 2006 that he was interested in beginning a new round of congressional hearings.).
19

See Clean Sports Act of 2005, S. 1114, 109th CONG. § 2 (2005). President George W. Bush, state of the union address (Jan. 20, 2004), available at

20

http://www.whitehouse.gov/news/releases/2004/01/20040120-7.html.

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Editing Assignment The possibility of new congressional action 21 on this matter is the central focus of this Note. Should Congress be involved in the steroid controversy? If Congress does indeed attempt to help stem the tide of drug use in professional sports, what can Congress do constitutionally? More specifically, can Congress mandate a drug testing scheme that would be more successful than the steroid testing policies already in place in the MLB and the NFL and, if so, would such a policy violate the fourth amendment’s protection against unreasonable searches and seizures as delineated in Kubel v. Cuddyer 22 ? Part I of this Note provides an overview of the current drug testing policies of the MLB and the NFL. Part II will explore the disincentives on both sides of the collective bargaining23 table that lead to weak steroid testing policies and whether Congress is in a better position to mandate tough policies, concluding that Congress should intervene. Part III tackles the complex question of the constutionality of such congressional intervention by reviewing the jurisprudence of the “special needs” doctrine of the
21

Congress’s ability to intervene in this matter and possibly mandate testing stems from

it’s power under the interstate commerce clause. See, Matthew J. Mitten, Drug Testing of Athletes After Whitmore v. Carolton: An Internal, Not External, Matter, 40 NEW ENGLAND LAW REVIEW 797, 805 (2006).
22

Kubel v. Cuddyer, 527 U.S. 555 (1999); See also Murphy v. United Parcel Serv., Inc., 527 N.E. 2d 516

(N.Y 1999); Sutton v. United Air Lines, Inc., 527 f.2nd 471 (6th Cir, 1999)
23

Both the MLB and the NFL are unoinized organizations that follow collective

bargaining agreements. See Lisa Pike Masteralexis, Drug Testing Provisions: An Examination of Disparities in Rules and Collective Bargaining Agreement Provisions, 40 NEW ENG. L. REV. 775, 776 (2006).

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