Oregon Law Review : Vol. 88, No. 1 (2009)
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Item Open Access Oregon Law Review : Vol. 88 No. 1, p.311-340 : Dueling Scientific Experts: Is Australia’s Hot Tub Method a Viable Solution for the American Judiciary?(University of Oregon Law School, 2009) Yarnall, Megan A.Part I of this Comment examines the causes and challenges associated with conflicting scientific experts. Part II identifies and distinguishes common sources of bias that may further complicate the evaluation of dueling expert testimony. Possible solutions to these problems are explored in Part III, leading into an explanation of Australia’s hot tub method and an evaluation of its strengths and weaknesses in Part IV. Part V discusses factors to consider in determining whether or not particular testimony lends itself to the hot tub procedure, while Part VI focuses specifically on ways the procedure could further ease the evaluation of dueling scientific expert testimony. Part VII identifies both the similarities and differences between the American and Australian court systems, as well as the differences that materially affect the applicability of the hot tub in the United States. Part VIII addresses some of these difficulties and suggests modifications to adapt the hot tub method to the American courts.Item Open Access Oregon Law Review : Vol. 88 No. 1, p.225-310 : Marine Protected Areas as a Mechanism to Promote Marine Mammal Conservation: International and Comparative Law Lessons for the United States(University of Oregon Law School, 2009) Abate, Randall S.Part I of this Article discusses the role of Marine Protected Areas as a viable strategy to enhance protection of marine mammals in U.S. waters. It examines the synergy between marine mammal conservation goals and the promotion of biodiversity protection, recreation, and tourism. Part I also examines how enhanced use of MPAs for marine mammal protection can be readily harmonized with existing federal regulatory schemes that govern marine mammals to achieve a “win-win” outcome. Part II addresses common failures of MPAs, such as the need to address flaws in MPA objectives, monitoring, and enforcement measures, and how the lack of a national system of MPAs can undermine the need to promote the objectives of MPAs in a consistent and comprehensive manner. Part III considers how other countries, most notably New Zealand and Spain, are taking leadership roles in establishing more effective marine mammal conservation measures within their MPAs. It examines how Spain has done particularly well in its monitoring efforts, whereas New Zealand has excelled in developing and implementing an effective national system of MPAs. Part IV addresses international law regulatory strategies in the fisheries management and carbon trading contexts to advocate for both enhanced international cooperation and regional implementation and enforcement of MPAs. Part V identifies the shortcomings of the existing MPA system in the United States. It then offers recommendations for how MPAs in the United States can be used more effectively to promote marine mammal protection in U.S. waters and beyond, which will enable the United States to become a more significant part of the solution to this international crisis.Item Open Access Oregon Law Review : Vol. 88 No. 1, p.195-254 : Employees on Guard: Employer Policies Restrict NLRA-Protected Concerted Activities on E-mail(University of Oregon Law School, 2009) O'Brien, Christine NeylonThis Article explores the issues relating to policies that cover use of company equipment and systems, especially restrictions on e-mail, and how these policies may be legally problematic if they interfere with the National Labor Relations Act, which governs the right, among others, to engage in union activities. This Article focuses upon the significance of the NLRB’s Register-Guard I decision, the legal basis and sources cited by the majority in support of its decision, the arguments of the dissenting members, and the General Counsel’s recent applications of the majority’s discrimination standard in Register-Guard I. Why the Board’s decision in Register-Guard I was appealed and restricted is discussed, taking into account precedent under the NLRA and the current status and uses of e-mail.15 This Article questions the legality of workplace communication systems policies that permit non-business uses of communications systems yet also prohibit concerted activity and union-related communications among employees. The distinctions appear to be based upon disfavored content, involving protected concerted activity, rather than legally relevant distinctions that pertain to legitimate business reasons. The Article concludes that the NLRB needs to modernize its rules to embrace the realities of electronic communication and suggests a standard for balancing employees’ NLRA rights with employers’ legitimate business reasons relating to production, discipline, or other modern-day equivalents.Item Open Access Oregon Law Review : Vol. 88 No. 1, p.157-194 : Legal Education and the Ecology of Cultural Justice: How Affirmative Action Can Become Race-Neutral by 2028(University of Oregon Law School, 2009) Dominguez, DavidIn this Article, I offer a provocative perspective on the future of affirmative action in higher education. Given the revolutionary opinions of the U.S. Supreme Court in Brown v. Board of Education and Hernandez v. Texas, and more recent Court rulings such as Grutter v. Bollinger (Grutter), Parents Involved in Community Schools v. Seattle School District No. 1, and Meredith v. Jefferson County Board of Education (collectively Parents Involved), I take issue with both sides in the current debate. End or defend? Neither side is facing reality.Item Open Access Oregon Law Review : Vol. 88 No. 1, p.095-156 : James Buchanan as Savior? Judicial Power, Political Fragmentation, and the Failed 1831 Repeal of Section 25(University of Oregon Law School, 2009) Graber, Mark A.The following pages explore how judicial review survived the transition from the deferential politics of the National Republican/Federalist era to the partisan politics of Jacksonian America. Part I details the political foundations of federal judicial power, particularly the crucial role section 25 of the Judiciary Act of 1789 played in establishing and maintaining the Supreme Court’s power to declare state—and federal—laws unconstitutional. Part II explains why the transition from Federalist to National Republican rule during the beginning of the nineteenth century posed little threat to judicial authority. Part III discusses the Jacksonian challenge to federal judicial power, why that challenge failed in 1831, and why that challenge was largely abandoned by 1837. Part IV points out how political fragmentation explains the failure of both the Jacksonian challenge to judicial power and the subsequent attacks on the judiciary in American history. This analysis concludes that judicial review is likely to become a permanent feature of the constitutional landscape once established in a polity where power is almost always fragmented.Item Open Access Oregon Law Review : Vol. 88 No. 1, p.037-094 : The New Battleground of Museum Ethics and Holocaust-Era Claims: Technicalities Trumping Justice or Responsible Stewardship for the Public Trust?(University of Oregon Law School, 2009) Kreder, Jennifer AnglimIn contrast to the optimistic hopes in 1998 to settle all claims expressed, we have seen a new trend emerge whereby current possessors of art displaced during the Holocaust, including museums, have been the first to file suit to quiet title, raising technical defenses. This Article will explore this recent trend, the reasons for it, and the consequences resulting from it. Part I will provide lesser known historical background missing from the mainstream legal literature. Parts II through VI will lay out the reasons for and progression of the restitution and declaratory judgment movement in Nazi-era art cases. Part VII discusses the consequences of the movement and offers best practices for the future for both claimants and present-day possessors.Item Open Access Oregon Law Review : Vol. 88 No. 1, p.001-036 : Tribute to Professor Dominick Vetri(University of Oregon Law School, 2009) Page, Christopher R.; Scoles, Eugene F.; Mooney, Ralph James; Gassama, Ibrahim J.; Guido, Alpa; Paris, Margaret