Oregon Law Review
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As the second oldest continuously published law review in the West, OLR has published more than 300 separate issues covering topics of state, national and international significance. Our mission includes contributing to contemporary scholarship by publishing articles from recognized scholars, and providing extraordinary member students with a national stage for their legal writings.
Print copies of this title are available through the UO Libraries, in the Knight Library general collection and Oregon Collection under the call number: KFO 2469 .O7; and in the Law Library under the call number: K 15 .R22
Digitized issues from 1921-present are available from HeinOnline. (restricted to UO community members).
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Item Open Access An Interdisciplinary Economic, Legal, and Equity Analysis of, and Policy Recommendations for, United States Water Markets(University of Oregon School of Law, 2024-05-20) Dorsey, LaurenThis Comment harnesses an interdisciplinary legal, economic, and equity lens to attempt to holistically evaluate the opportunities and limitations facing United States water markets as a tool for efficient and equitable water use. This Article extends that analysis to articulate potential best practices for policymakers and stakeholders to consider when creating or modifying water markets.Item Open Access One Piece of the Puzzle: The Role of Tax Strategies in Addressing Oregon’s Housing Crisis(University of Oregon School of Law, 2024-05-20) Hayden, JulietThis Comment will begin by exploring the history and current status of the housing crisis on a national scale and the direct impacts of the housing crisis on the state of Oregon. The Comment will then describe the mechanics, challenges, and efficacy of both the federal Low-Income Housing Tax Credit (LIHTC) and the state-level Oregon Affordable Housing Tax Credit (OAHTC). Finally, the Comment will offer recommendations to improve the existing tax strategies as well as the supplemental programs that policymakers should implement to better address Oregon’s affordable housing crisis.Item Open Access #MeToo: Rethinking Law and Literature to Define Narrative Justice(University of Oregon School of Law, 2024-05-20) Tewari, GeetaThe law and literature movement is transforming into something new. This Article will discuss what that newness is, how it came about, and the different shapes it takes to provide the legal community with a platform to contribute to a working definition for a term I created in 2019, narrative justice. Creatively, technologically, and economically, public institutions and legal culture are rethinking the value of voice and story. With concrete examples of innovations and social movements, this Article will demonstrate how both action and inaction have propelled us as a society toward urgency in defining and claiming narrative justice.Item Open Access Fairness and Uncertainty in Torts: A Theoretical and Empirical Inquiry(University of Oregon School of Law, 2024-05-20) Bregant, Jessica; Dillof, Anthony M.Is torts ready for a revolution? Momentous changes in law are exceedingly rare. In torts, one such change was the advent of comparative fault. Originally codified in the early twentieth century, comparative fault represented a revolutionary shift away from all-or-nothing recovery. For the first time, a plaintiff’s recovery need not be either her full damages or zero—it might be somewhere in between. This Article presents a pair of large-scale public opinion surveys we conducted in 2022. These surveys polled over 1,300 persons and collected approximately 4,000 individual survey responses. The surveys illuminate people’s judgments about the relative fairness of Single Most Likely Scenario Recovery (SMSR) and Probabilistic-Proportional Recovery (PPR) and related topics.Item Open Access First Twelve in the Box: Implicit Bias Driving the Peremptory Challenge to the Point of Extinction(University of Oregon School of Law, 2024-05-20) Graffy, Colleen P.; Caldwell, Harry M.; Sood, Gautam K.Peremptory challenges in jury selection are being used in a biased and discriminatory manner. The Batson v. Kentucky safeguards are not working as intended and have not resolved the problem of jury bias. States now need to decide: will they follow Arizona’s bold lead in 2022 and abolish peremptory challenges, or will they follow Washington and try to improve on Batson? This Article presents a compelling argument for abolishing peremptory strikes in jury selections. The authors trace the historical development of peremptory challenges, highlighting their evolution from a mechanism to ensure impartiality to their current use in shaping a biased jury. After examining Washington’s “neutral observer” standard and Arizona’s complete elimination of peremptory challenges, the authors advocate for a shift to the English model—where “the first twelve in the box” become jurors. The Article includes a helpful chart showing the direction in which key states are leaning. It raises thought-provoking questions about implicit bias, the limitations of current methods, and the advantages of a simplified approach to jury selection.Item Open Access Outside the Ivory Tower: How Law Students Benefit When Their Professors Revisit Practice(University of Oregon School of Law, 2024-05-20) Vukadin, Katherine T.This Article posits that, to guide law students properly in their professional identity, law professors must connect with practice. Connection can consist of a sabbatical or other period of time spent fully immersed in practice or even an ongoing relationship with the local practicing bar or individual lawyers. Further, administrators should encourage these efforts. But all law professors should do something to ensure that their guidance is up to date and that they can provide the information and opportunities required for professional identity formation.Item Open Access Unleashing Rule 5.1 to Combat Prosecutorial Misconduct(University of Oregon School of Law, 2024-05-20) Cassidy, R. MichaelThe topic of this Article is the little understood and seldom invoked Rule of Professional Conduct 5.1, and how that disciplinary rule can be more aggressively enforced to detect and deter prosecutorial misconduct. The notion that supervisory attorneys must be more actively involved in their colleagues’ ethical decisions and conduct has been recognized by the bar since the adoption of Rule 5.1 in 1983, but the rule remains undertheorized by scholars and underutilized by disciplinary authorities.Item Open Access Reducing Oregon’s Greenhouse Gas Emissions: Prioritizing Hydropower and Energy Equity for All Oregonians(University of Oregon School of Law, 2024-05-20) Lowe, DylanOregon created some of the most ambitious carbon-neutral goals of any state in the country. However, Oregon failed to achieve meaningful results in curbing greenhouse gas emissions. This Comment’s thesis states that Oregon’s policies on climate change will continue to have two effects. First, the policies will likely not reduce greenhouse gas emissions, ruling the policies ineffective. Second, the policies will increase energy costs with inequitable effects on communities of color, rural communities, and the unhoused population of Oregon.Item Open Access Beyond an Unreasonable Inference: Introduction of Gang Evidence and Implicit Bias in Oregon Criminal Courts(University of Oregon School of Law, 2024-05-20) Hooker, Kasey AnneThis Comment’s purpose is to analyze the bias exhibited against gang members and suggest solutions for what Oregon can do to prevent juror bias against gang members from corrupting the integrity of jury verdicts. Part I of this Comment will (1) discuss some of the history of racial bias in the United States’ criminal justice system—including the various forms of systemic racism employed throughout the nation, (2) discuss how those laws were based on public opinion fueled by negative racial stereotypes and attitudes, and (3) examine the modern public’s bias toward gang members and how that bias derives from racial animus. Part II will use a behavioral realism framework to discuss how implicit bias against gang members negatively influences decisions in the jury room. Finally, Part III will discuss two possible alternatives for rectifying this issue in Oregon: a revision to the Oregon Evidence Code or an Oregon Supreme Court rule that would limit the admissibility of gang evidence as character evidence under the prior bad acts rule.Item Open Access Truth, Lies, and Spelunking: Protecting the Investigative Reporters We Send into the Cave(University of Oregon School of Law, 2024-05-01) Brogan, Doris DelTostoThis Article begins with a brief discussion of journalism and its purposes. It then describes undercover reporting, positioned as a subset of investigative reporting, through a series of examples where reporters use deceit or engage in tortious conduct such as trespassing to gain access to information. The Article then focuses on the legal actions, usually civil tort claims, brought against journalists—delving in some detail into ag-gag statutes drafted specifically to penalize undercover reporting on the agricultural industry. It explores how courts navigate constitutional questions, nuanced causation issues, and overarching public policy considerations. From this it becomes clear that, while it doesn’t happen often, undercover journalists have been sued and have even faced threats of criminal charges for their actions in pursuing critical information of significant public interest. The very threat of legal actions can have a chilling effect on the willingness of the press to risk undercover investigations that rely on deceit or other similar tactics, especially given the increasingly fragile economic circumstances of most media outlets. Against this background, I argue that we need good investigative reporting that in some instances will involve deceit, trespass, and other minor wrongdoing. Finally, I propose a limited common law or statutory privilege that would protect journalists from tort liability and criminal charges for minor unlawful conduct while pursuing important stories of significant public interest.Item Open Access Naked Class Waivers(University of Oregon School of Law, 2024-05-20) Fritz-Mauer, MatthewMandatory arbitration agreements have become commonplace. These contracts bind tens of millions of workers and consumers. The mandatory arbitration agreements typically do two things: (1) force individuals to privately arbitrate all disputes and (2) require them to waive their right to participate in class action lawsuits. Legal scholars and experts have criticized this phenomenon for worsening the access to justice crisis, stymying corporate accountability, depriving the public of oversight, and preventing millions from vindicating their civil rights. Class action lawsuits are often the only way to pursue small, widespread violations of the law. And, without a group mechanism, the fundamental rights of millions of people are systematically foreclosed from a legal claim. But something worse than mandatory arbitration is coming—and in many places, is already here: “Naked Class Waivers” that force individuals to give up their ability to participate in group lawsuits without any accompanying arbitration agreement. This Article is the first to explore the increasing prevalence of these coercive and one sided agreements.Item Open Access Lest We Be Lemmings(University of Oregon School of Law, 2024-05-20) Osborn-Wright, ClaireThis Article explains why the Ninth Circuit’s opinion that the Juliana plaintiffs do not possess standing to obtain their requested declaratory judgment is incorrect. Part I addresses the knowledge of climate scientists, the U.S. government, and the fossil fuel industry, of the existence, causes, and effects of global warming. Part II discusses the U.S. government’s failure to regulate the fossil fuel industry, reduce federal subsidies to the industry, and hold the industry accountable for global warming. Part III explains the fossil fuel industry’s strategy for denying responsibility for global warming. Part IV discusses the opinions of the U.S. District Court for the District of Oregon and Ninth Circuit in the case of Juliana v. United States. Part V explains the many reasons why the Ninth Circuit’s opinion that the plaintiffs do not possess standing to obtain a declaratory judgment is incorrect.Item Open Access The Kids Are Definitely Not All Right: An Empirical Study Establishing a Statistically Significant Negative Relationship Between Receiving Accommodations in Law School and Passing the Bar Exam(University of Oregon School of Law, 2024-05-20) DeVito, ScottUsing data gathered from sixty public law schools relating to the years 2019, 2020, and 2021, this Article demonstrates that there is a statistically significant negative correlation between the percentage of students in a school who receive accommodations and the school’s first-time bar passage rate. In other words, this study shows that as the percentage of accommodated students in a law school increased, its bar passage rate decreased. This Article establishes a prima facie case that something is wrong with the accommodation granting process and argues that state board of bar examiners should provide more data and transparency on examinee accommodations.Item Open Access The Oregon Forest Trust: An Ecological Endowment for Posterity(University of Oregon School of Law, 2024-05-01) Wood, Mary ChristinaThe public trust finds specific elaboration through a set of fiduciary standards that form a paradigm of sustainable management on behalf of the public. These time-tested standards define proper management of all ecological bounty, including forest, and provide measures of fiduciary performance against which the citizen beneficiaries may judge their political leaders and hold them accountable. This Article applies the public trust principle to Oregon forests.Item Open Access Cow Methane-Reduction Wearable Technology and Animal Welfare: Humane Solutions to Lessen Livestock’s Environmental Impact(University of Oregon School of Law, 2024-05-01) Obek, AnnaThis Comment proceeds in five parts. Part I examines the importance and relationship between methane emissions and the agricultural livestock industry within the context of mitigating climate change. Part II provides an overview of livestock wearable technology and discusses ZELP’s methane-reduction mask for cattle, the company’s welfare considerations, and efficacy. Part III analyzes ZELP’s methane-reduction mask through the California and Wisconsin animal cruelty statutes. Part IV discusses the ZELP methane-reduction device’s potential psychological impact on cows, and Part V provides alternative methods for reducing livestock’s environmental impact.Item Open Access A Mother’s Domicile in the Indian Child Welfare Act: In re Adoption of B.B.(University of Oregon School of Law, 2024-05-01) Kelly, MargaretDomicile is an essential part of Indian Child Welfare Act because it often determines which court—tribal or state—will decide the fate of an Indian child in an adoption proceeding. In cases involving newborn babies, for example, the determination of a child’s domicile focuses on the child’s parents, namely the mother. In recent years, some courts have used relaxed domicile standards that are inconsistent with congressional intent in order to give the state jurisdiction and deny tribes the power to adjudicate. This Note uses "In re Adoption of B.B." to examine an Indian mother’s domicile in relation to ICWA. It argues that Congress’s concern about the state-sanctioned removal of Native American children from their homes and tribes must remain part of the consciousness of judges who determine the fate of Native American children.Item Open Access Parents v. COVID: The Core and the Limits of the Parental Right to Direct Education(University of Oregon School of Law, 2024-05-01) Johansen, KellenItem Open Access Private Delegations and Eminent Domain(University of Oregon School of Law, 2024-05-01) Asbridge, Jessica L.This Article is the first to explore why private delegations of the eminent domain power have received such different treatment from other private delegations of legislative power and to critically analyze these delegations under the Supreme Court’s modern due process, separation-of-powers, and takings jurisprudence. It ultimately concludes that these delegations generally should be viewed as presumptively invalid absent meaningful government oversight over the exercise of the power.Item Open Access Navajo Statehood: From Domestic Dependent Nation to 51st State(University of Oregon School of Law, 2024-03-01) Mullenix, Philip S.; Rosser, EzraThe inability or unwillingness of the U.S. Supreme Court, and to some extent all other non-Indian governance institutions at the state and federal level, to take tribal sovereignty seriously forces a question: Should the Navajo Nation pursue statehood? Such a question may seem far-fetched or merely an academic thought experiment, but there is historical precedent for contemplating the idea that an Indian nation might form a state. Moreover, journalists, academics, and politicians have floated the possibility that the Navajo Nation already meets many of the attributes required to form a new state. So, although the idea of the Navajo Nation becoming the fifty-first state of the Union seems far fetched, considering the possibility provides a way to better understand both statehood and the hard choices Indian nations must make.Item Open Access Toward a More Comprehensive Plea Bargaining Regulatory Regime(University of Oregon School of Law, 2024-05-01) Covey, Russell D.This Article describes the lawless nature of the plea bargaining system. It argues that although there are bodies of law that deal with guilty pleas and aspects of procedure that are relevant to plea bargaining, there is very little law that regulates plea bargaining itself. This Article argues that these aspects of plea bargaining have contributed to some of the most dysfunctional aspects of modern criminal justice, including mass incarceration and an overindulgence in “assembly-line justice.”