Oregon Law Review : Vol. 88, No. 3 (2009)

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    Oregon Law Review : Vol. 88 No. 3, p.931-962 : Of Property and Procreation: Oregon’s Place in the National Debate over Frozen Embryo Disputes
    (University of Oregon Law School, 2009) Frazier, Tracy J.
    With the development of assisted reproductive technologies such as IVF, human inventiveness has opened a Pandora’s box of ethical and legal issues. Profound uncertainty exists when parties using IVF subsequently disagree about the disposition of their cryopreserved embryos. Perhaps because these technologies implicate some of the most intimate human concerns—reproduction, parenting, and marriage—both legislatures and the courts have been reluctant to speak explicitly about any resolution of the present confusion. The few courts, including Oregon’s, to address the issue of remaining embryos have considered the problem within the typical legal framework of property and contract interpretation. But such legal construction reduces the embryo to an object and ignores possible solutions that would keep many embryo disputes out of court. Oregon should look to the IVF contract for resolution, requiring parties to agree in advance to the disposition of their embryos and preventing them from coming to an agreement that no court will enforce. The legislature should take measures to ensure that wouldbe parents understand the gravity of their agreement. Mandating counseling before entering into the contract with the IVF clinic may be one such measure. Ultimately, enactment of such a statute will both create a foundation for a more uniform and consistent legal setting and ensure a more rational basis for resolving embryo disputes.
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    Oregon Law Review : Vol. 88 No. 3, p.905-930 : Being in the Language of Poetry, Being in the Language of Law
    (University of Oregon Law School, 2009) Joseph, Lawrence
    Being in the Language of Poetry, Being in the Language of Law was originally presented as the 2008–2009 Colin Ruagh Thomas O’Fallon Memorial Lecture at the University of Oregon School of Law, on April 16, 2009. The O’Fallon Memorial Lecture, which is sponsored by the Oregon Humanities Center, alternates each year between lectures on law and art in American culture. Professor Lawrence Joseph is the first lecturer in this series to combine both law and art as the subjects of his presentation. Professor Joseph brings a unique perspective to his topics. An eminent legal scholar, and former practicing lawyer and judicial law clerk, he is also the awardwinning author of five widely acclaimed books of poetry; of Lawyerland, a book of creative prose; and of literary essays and other works of creative prose. Being in the Language of Poetry, Being in the Language of Law is a personal essay adapted from Professor Joseph’s lecture. In it, he takes his reader through his various experiences with the languages of both his vocations and details how these languages overlap and affect him. The style and composition of the Essay create the sense of both living in and being intensely involved in languages both legal and literary. The ultimate effect is,through the portrayal of the languages of law and poetry, a portrait of language itself.
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    Oregon Law Review : Vol. 88 No. 3, p. 829-904 : Has the Fourth Amendment Gone to the Dogs?: Unreasonable Expansion of Canine Sniff Doctrine to Include Sniffs of the Home
    (University of Oregon Law School, 2009) Lunney, Leslie A.
    Despite the visceral offensiveness of potential dragnet or selective police investigations involving the home, all lower federal courts that have considered the issue, aside from the U.S. Court of Appeals for the Second Circuit, have concluded that a canine sniff of a private home is not a “search” under the Fourth Amendment. Therefore, no warrant, or even suspicion, is required to perform the canine sniff. This Article challenges the legitimacy of that conclusion and argues that a canine sniff of a private residence—a location that is afforded stringent Fourth Amendment protection—is a “search” within the meaning of the Fourth Amendment.
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    Oregon Law Review : Vol. 88 No. 3, p.746-776 : Specific Intent and the Purposeful Narrowing of Victim Protection Under the Convention Against Torture
    (University of Oregon Law School, 2009) Holper, Mary
    In this Article, I argue that the Board of Immigration Appeals (BIA) has adopted a misguided approach to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) protection that creates an insurmountable obstacle to actually obtaining such protection. As a solution, I propose that Attorney General Eric Holder, under the new Obama administration, adopt a revised definition of specific intent that includes “knowing that severe pain or suffering is foreseeable.” Such a definition is consistent with the legislative history and purpose of the CAT and finds ample support in criminal law jurisprudence. In addition, this definition of specific intent is used by the Office of Legal Counsel of the U.S. Department of Justice in its analysis of whether certain interrogation techniques would subject Central Intelligence Agency operatives to prosecution under the CAT. An alternative solution is for U.S. courts to employ a “knowledge of foreseeable consequences” definition of specific intent in CAT protection cases. Courts can adopt this definition notwithstanding the principles of agency deference embodied in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (Chevron).
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    Oregon Law Review : Vol. 88 No. 3, p.745-776 : No More Nisour Squares: Legal Control of Private Security Contractors in Iraq and After
    (University of Oregon Law School, 2009) Tiefer, Charles
    This Article analyzes and builds upon the somewhat successful steps taken by the Department of Defense and the Department of State in 2008–2009 to manage the problem of the Blackwater incident at Nisour Square . Analyzing those steps shows a key strand consisting of what may be called the “contract law” approach. In the much-expanded form proposed in this Article, the “contract law” approach would use government contract requirements, contracting tools and sanctions, contract-related claims, and distinctive contract-related suits to both control and remedy private security abuses and injuries. This Article continues my prior studies as a professor of government contracting law with a specific interest in the Iraq war.
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    Oregon Law Review : Vol. 88 No. 3, p.703-744 :Virtue and Contract Law
    (University of Oregon Law School, 2009) Cimino, Chapin F.
    This Article argues that legal scholars, and especially private law scholars, should be paying more attention to virtue theory. Unlike the two dominant normative theories, the analytical approach of virtue theory requires a symbiotic focus on both the means and ends of law. As will be explained below, neither of the two dominant theories account fully for both means and ends; instead, each privileges one over the other. By contrast, because of an inherent interrelationship between means and ends in virtue theory, this theory may offer a much more complete understanding of law, including private law, than the theories of either law and economics or individual rights.
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    Oregon Law Review : Vol. 88 No. 3, p.621-702 : Complementarity and Alternative Justice
    (University of Oregon Law School, 2009) Gordon, Gregory S.
    The Article demonstrates that, in light of the scale and brutality of the “Lord’s Resistance Army” (a northern Ugandan rebel group fighting the government of Yoweri Museveni) atrocities, the nature of the defendants, and the characteristics of the proposed mechanisms, the contemplated resort to alternative justice in Uganda will not pass complementarity muster. On the other hand, the Article shows that, in certain situations, some forms of alternative justice—especially multiple ones conjoined or tethered to other domestic judicial efforts—could conceivably pass the proposed complementarity admissibility test. Along the way, this analysis also helps illuminate our increasingly complex understanding of the relationship between international criminal law and domestic justice in atrocity situations. The essentially retributive nature of the former is evolving to make way for restorative goals, and at the same time, certain retributive characteristics are being incorporated into the latter as alternative justice mechanisms adapt to deal with the new and horrible phenomenon of mass atrocity. In the end, the Article shows that effective atrocity justice entails a proper division of labor between local restoration and global retribution. While complementarity could be the ideal medium to achieve that allocation, the proposed analytic criteria must be used to weave both peace and justice more seamlessly into the procedural fabric of international criminal law.