Oregon Law Review : Vol. 89, No. 2 (2010)

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    Oregon Law Review : Vol. 89, No. 2, p. 725-752 : Oregon’s Recreational Immunity in the Wake of Coleman v. Oregon Parks and Recreation Department
    (University of Oregon Law School, 2010) Kesselring, John D.
    This Note discusses Coleman v. Oregon Parks and Recreation Department, analyzing the majority and dissenting opinions and the implications of the court’s holding. To this end, Part I discusses the statutory law that provides the background for the present case. Part II discusses statutory interpretation under Oregon law. Parts III and IV discuss the facts of the case and the procedural history, respectively. Part V discusses the court’s holding and the rationale provided by both the majority and dissenting opinions. Finally, Part VI discusses the implications of the two rationales and the issues that may arise from the court’s decision.
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    Oregon Law Review : Vol. 89, No. 2, p. 701-724 : Oregon’s Big Gamble: BETC and the Economics of Renewable Energy and Conservation
    (University of Oregon Law School, 2010) Kuehl, Gordon J.
    In the 2007–2009 biennial period, the BETC program cost Oregon $68.6 million in tax revenue. Following the economic downturn of 2008, Oregon is experiencing the same or worse economic woes as the rest of the United States, and there have been loud cries that the BETC program should be either massively cut back or eliminated. With all state departments having to make tough cuts due to budget constraints, how can the massive tax expenditure of the BETC program be justified? To answer that question, I will examine the history of the BETC program, its successes, and its weaknesses in the hope of finding a long-term, sustainable, and effective way that the goals of the Oregon legislature can be met. Part I of this Comment reviews the history and passage of the BETC program and the changes that have been made to it over the last decade. Part II examines the current implementation of BETC and its economic, environmental, and public policy effectiveness. Finally, Part III considers the ongoing and upcoming legislative battles BETC faces and what steps need to be followed to continue the program’s effectiveness.
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    Oregon Law Review : Vol. 89, No. 2, p.645-700 : A Legal Response Is Necessary for Self-Produced Child Pornography: A Legislator’s Checklist for Drafting the Bill
    (University of Oregon Law School, 2010) Duncan, Susan Hanley
    This Article joins the dialogue concerning the proper response to underage individuals taking and sharing sexually explicit images of themselves. The dialogue recently began with only a handful of law review articles published on the topic. The debate thus far centers on whether naked images that underage individuals take of themselves should be prosecutable or whether the proper response is to decriminalize this behavior. Because such images meet the definition of child pornography, this Article advocates for a legal response in addition to education. Like traditionally created pornography, self-produced child pornography may lead to serious and lasting physical and emotional consequences for its participants. The State has a compelling interest in protecting the well-being of its minors, which justifies a legal response to child pornography, whether or not it is self-produced. In addition, society as a whole suffers when teenagers produce child pornography that is distributed and possessed not just by other teens but perhaps by pedophiles as well.
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    Oregon Law Review : Vol. 89, No. 2, p. 623-644 : Exploring the Creditor’s Duty of Reasonable Care Under UCC Article 9 Amidst Recession and Revision
    (University of Oregon Law School, 2010) Eonas, Anthony G.; Secord, Erin M.
    The following analysis will explore a secured party’s duties under sections 9-207(a) and 9-610 individually and in tandem to reveal that, despite the clarity of the statute on its face, variances abound. The differences in application of these provisions of the UCC create uncertainty in the marketplace, which is detrimental during times of economic decline. Given the higher incidences of default in times of economic recession, valuation becomes a key determinant of the outcome for the parties involved. Furthermore, unique collateral becomes increasingly difficult to value in a slow economy because of reduced demand. Accordingly, collateral with an established market is easier to value. This facilitation in collateral valuation leads to a more straightforward assessment of the adequacy of the secured party’s preservation and disposal of collateral. Additionally, this Article will investigate the effect of turbulence in the domestic and global markets on creditors’ duties of preservation and reasonable sale or disposal under sections 9-207(a) and 9-610.
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    Oregon Law Review : Vol. 89, No. 2, p.581-622 : Truly Sovereign at Last: C.B.C. Distribution v. MLB AM and the Redefinition of the Concept of Baseball
    (University of Oregon Law School, 2010) Nathanson, Mitchell
    As this Article discusses, post–World War II societal changes, some directly impacting baseball and others with an indirect, but no less forceful, impact, have led to a societal and, therefore, judicial, separation of the traditional connection between Major League Baseball and the larger, more symbolic, concept of “baseball,” all of which led up to the C.B.C. Distribution decisions that sought to protect the game but no longer entrusted Major League Baseball with this role. The rise of the Players Association, the diminishing status of club owners as a result of the corporate revolution of the sixties, and the public demonization of both that occurred as a result of nearly four decades of labor unrest (including, most notably, the cancellation of the 1994 World Series) will all be discussed to show that, although the symbolic pull of the concept of baseball may still be as strong as ever, the power of Major League Baseball as a cultural force is clearly on the wane. As a result, although federal courts are just as likely now as they ever were to alter the legal rules of the game to protect baseball, the C.B.C. Distribution decisions perhaps signal a shift in judicial deference toward Major League Baseball, as opposed to the game itself. From now on, perhaps the federal judiciary will be more likely to rule as the C.B.C. Distribution courts did and to recognize that the sovereign nation of baseball is truly sovereign, not even answerable to Major League Baseball itself. For decades, such a conclusion would have been unthinkable. Now, perhaps, it has finally become a reality.
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    Oregon Law Review : Vol. 89, No. 2, p. 557-580 : The Ethics of Melancholy Citizenship
    (University of Oregon Law School, 2010)
    As a body of work, the poetry of Langston Hughes presents a vision of how members of a political community should comport themselves, particularly when politics yield few tangible solutions to their problems. Confronted with human degradation and bitter disappointment, the best course of action may be to abide by the ethics of a melancholy citizenship. A mournful disposition is associated with four democratic virtues: candor, pensiveness, fortitude, and self-abnegation. Together, these four characteristics lead us away from democratic heartbreak and toward political renewal. Hughes’s war-themed poems offer a richly layered example of melancholy citizenry in action. They reveal how the fight for liberty can be leveraged for the ends of equality. When we analyze the artist’s reworking of Franklin Roosevelt’s orations in the pursuit of racial justice, we learn that writing poetry can be an exercise in popular constitutionalism.
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    Oregon Law Review : Vol. 89, No. 2, p.453-504 : Inheriting Inequality: Wealth, Race, and the Laws of Succession
    (University of Oregon Law School, 2010) Strand, Palma Joy
    Following the thread of inheritance law, I started with current wealth inequality, which—after falling from its twentieth century peak in the 1920s to a low point around 1980—has increased steadily in recent decades. Further exploration led to the particularly acute wealth disparities between Black and White households as well as studies documenting the effect of inheritance in perpetuating those disparities. This is an issue of immediate urgency: The wave of racialized wealth owned by the parents of the baby boom generation is currently washing over the baby boomers in an enormous intergenerational transfer of wealth. Without intervention, the wealth distribution going forward will be at least as racially skewed as it is at present.
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    Oregon Law Review : Vol. 89, No. 2, p. 415-504 : Déjà Vu: From Comic Books to Video Games: Legislative Reliance on “Soft Science” to Protect Against Uncertain Societal Harm Linked to Violence v. the First Amendment
    (University of Oregon Law School, 2010) Day, Terri R.; Hall, Ryan C.W.
    With an eye toward a Supreme Court decision sometime next year, this Article looks at the First Amendment implications of restrictions on violent video games and the tension between social sciences and the law in protecting children from uncertain harm that may be caused by violent video games. Part I chronicles the history of industry measures, in response to political pressure, to shield young children from the perceived negative effects of violence in various media. Part II addresses the First Amendment obstacles to imposing restrictions on violent video games. Part III reviews the current state of the conflicted scientific literature on the issue of violent video games and their effects on children. The potential biases and limitations of applying social science research to legal issues will be discussed, suggesting that the Court set high standards for using and reviewing social science research in First Amendment cases. This Article is not meant simply to predict how the Court will rule. It proposes a newly articulated standard for reviewing legislative findings when social science evidence is relied upon to support restricting First Amendment liberties. Finally, this Article will end on a cautionary note, concluding that politics and “soft science” should not dictate First Amendment jurisprudence, even for the laudable goal of protecting children.