Works by the Law Students

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    Marine Protected Areas off the Coast of Oregon: Legal Framework, Initial Recommendations, and Proposed Oregon Legislation Establishing a Heceta-Stonewall Banks Marine Protected Area
    (2008-10-10T17:30:34Z) Brown, Kassandra A.
    This paper addresses some current federal and state legal authorities that may serve as a framework for establishing transboundary MPAs (MPAs across both federal and state waters) off the Oregon coast, makes some initial recommendations for that process, and contextualizes proposed Oregon legislation establishing a "Heceta-Stonewall Banks Marine Protected Area."
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    Journal of Environmental Law & Litigation : Vol. 23, No. 1, p. 241-274 : Watering Down Federal Court Jurisdiction: What Role Do Federal Courts Play in Deciding Water Rights?
    (University of Oregon School of Law, 2008) Wood, Alexander
    Within the context of water rights issues, this Note discusses how federal courts have analyzed Colorado River in deciding whether to exercise jurisdiction or abstain because of “exceptional circumstances.”8 Part I provides a brief overview of judicially created abstention doctrines. Part II discusses the tension among federal reserved water rights, the prior appropriation doctrine, and a state’s authority over allocating its own water. Part II also focuses on the reasons federal agencies may choose to assert water rights claims in federal court and how the McCarran Amendment has limited that choice. Part III describes the Colorado River decision in detail and analyzes how courts have applied and misapplied its doctrine when resolving water rights issues. Part IV examines the doctrine of prior exclusive jurisdiction, a narrow abstention exception focusing on situations where the court that originally adjudicated a water-rights determination, whether state or federal, would have exclusive jurisdiction over all subsequent adjudications concerning the same water body. Part V explains how Colorado River abstention and the prior exclusive jurisdiction doctrine connect in the realm of water rights conflicts. The Note concludes by providing a final assessment of the subject at hand.
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    Oregon Law Review : Vol. 86 No. 4, p.1201-1240 : MySpace, Your Space, or Our Space? New Frontiers in Electronic Evidence
    (University of Oregon School of Law, 2008) Wilson, John S.
    This Comment argues that traditional legal rules are generally ineffective in addressing the new challenges that electronic evidence poses and that such challenges require new solutions. Many of the lessons learned from the increased use of electronic evidence in civil litigation-- "e-discovery," in the parlance of litigators-- may be applied to the burgeoning use of social-networking sites to gather evidence in criminal cases. This Comment also suggests some shortfalls in the newly revised Federal Rules of Civil Procedure governing e-discovery and offers suggestions for closing existing loopholes.
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    Journal of Environmental Law & Litigation : Vol. 23, No. 1, p. 035-072 : Massachusetts v. EPA: Rescuing Icarus with Environmental Federalism
    (University of Oregon School of Law, 2008) Biering, Raymond A.; Biering, Brian S.
    This Article first addresses the ultimate impact of Massachusetts [v. EPA] in the context of the law of climate change in the United States. We analyze the immediate implications of probable regulatory actions at the federal level which are either mandated by Massachusetts or will likely follow as a result of the Supreme Court’s decision. The Article then considers the existing regional and state climate protection efforts evolving independently of federal climate change initiatives. We argue that these “sub-national” initiatives are evolving in a “federal vacuum.”18 As a case study of sub-national climate change initiatives evolving in the federal vacuum, California’s pioneer programs are looked to as an important economy-wide program that may also play a key role in furthering notions of environmental federalism. In light of the evolution of programs like those in California, this Article considers the potential federal and state conflicts that may arise as a result of regional, state, and local climate change initiatives. Finally, the Article considers goals of environmental federalism, wherein preemption is limited and both federal and sub-national coordination of policy is maximized. By viewing the states as laboratories for effective policy, this conception of environmental federalism would further national reductions in greenhouse gases through the encouragement of sub-national efforts.
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    Journal of Environmental Law & Litigation : Vol. 22, No. 2, p. 383-414 : Assimilation, Enclaves, and Take: How States Might Protect Wildlife on Federal Reservations
    (University of Oregon Law School, 2007) Miller, Ben
    Part I of this Note briefly discusses the interrelationship between state and federal regulation of wildlife and the constitutional constraints. Part II provides a primer on federal enclave law. Part III discusses the background and application of the Assimilative Crimes Act. Part IV discusses exclusive and concurrent jurisdiction. Part V discusses state endangered species acts as criminal laws. Part VI walks through the assimilation of a state wildlife law. Finally, Part VII concludes with some of the challenges of enforcing state prohibitions. The goal of this Note is not to challenge federal authority over wildlife generally, but rather, to ensure there are alternatives available if the federal government is not living up to its stewardship responsibilities.
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    Oregon Law Review : Vol. 86 No. 1, p. 219-248 : How to Stop a Predator: The Rush to Enact Mandatory Sex Offender Residency Requirements and Why States Should Abstain
    (University of Oregon School of Law, 2007) Boyd, Justin H.
    A new trend in state legislation emerged as twenty-two states entered legally unsettled waters by enacting various residency restrictions for convicted sex offenders. Legislators tout the need for such residency restrictions to reduce child sex offenders’ opportunities for contact with potential victims. However, courts disagree whether these new laws are constitutional, and research increasingly questions their utility. This Comment will first look at the primary legal questions facing the courts, examining various legal challenges to state residency restrictions and the limited research surrounding the efficacy of such restrictions. Next, this Comment will address the 2006 California ballot measure Proposition 83, which serves as a practical case study of these new restrictions and their unsettled legal ramifications. Finally, this Comment will examine Oregon’s nonmandatory residency restriction and explain why it serves as the best model for achieving the goals of protecting our children, monitoring the sex offender population, and withstanding judicial review. Ultimately, this Comment will attempt to show that research on mandatory residency restrictions may affect the way future courts rule on these restrictions. This Comment will also attempt to persuade those presently in favor of mandatory residency restrictions that more flexible, nonmandatory restrictions will increase the likelihood of achieving their stated objectives.
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    Oregon Law Review : Vol. 85 No. 4, p. 1027-1062 : Fairness or Fiction: Striking a Balance Between the Goals of § 1983 and the Policy Concerns Motivating Qualified Immunity
    (University of Oregon School of Law, 2007) Ackerman, Caryn J.
    Part I provides a brief overview of the background of qualified immunity, including its development and the motivations behind its creation. Part II examines the narrowest approach taken by any of the circuits in regard to the relevance of extracircuit precedent by analyzing a case from the Eleventh Circuit. Part III examines another case from the Eleventh Circuit, one that, in contrast to the previous case, was decided after three significant Supreme Court cases that forced courts of appeals to make significant changes to their qualified immunity analyses. Essentially, Parts II and III seek to answer two primary questions: First, does allowing some circuits to narrowly define relevant precedent that may clearly establish the law detrimentally affect plaintiffs to the extent that the Supreme Court should itself articulate a binding standard with more breadth? And second, even if such a standard was at one time needed, did the Court’s recent decisions render such a standard unnecessary? This Comment argues that a narrow standard creates an unwarranted disadvantage for plaintiffs such that a uniform standard regarding the relevance of extracircuit precedent is still vitally necessary. Part IV argues that a standard approach among all circuits requiring consideration of extracircuit precedent in the absence of binding intracircuit precedent is crucial to the development of civil rights jurisprudence.
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    Oregon Law Review : Vol. 85 No. 4, p. 1063-1094 : Missing from Oregon’s Takings Clause: The Right to a Jury Trial of Compensation in Eminent Domain Proceedings
    (University of Oregon School of Law, 2007) Peterson, Sarah
    Although it may be surprising to some, no federal constitutional right to a jury trial exists for eminent domain actions, since, prior to the adoption of the U.S. Constitution, these actions were not tried to a common law jury. Because Oregon’s jury trial constitutional provisions largely mirror those in the U.S. Constitution, the Oregon Constitution provides no further protection in eminent domain proceedings than the Federal Constitution. Although a legislature may guarantee a jury trial by statute, this Comment aims to demonstrate that no such guarantee exists within Oregon’s statutes. Thus, a judge could validly deny a litigant’s request for a jury trial in an eminent domain proceeding. While this issue has yet to be directly addressed in an Oregon appellate opinion, Oregon’s newly enacted landmark land use statute, Measure 37 provides opportunities for trial and appellate judges to consider this issue in the near future. To cure any statutory ambiguity and to prevent unnecessary litigation, this Comment argues that the Oregon Constitution should be amended to guarantee the right to have a jury decide “just compensation” for a taking of private property in an eminent domain proceeding.
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    Oregon Law Review : Vol. 86 No. 1, p.249-294 : Cages, Clinics, and Consequences: The Chilling Problems of Controlling Special-Interest Extremism
    (University of Oregon School of Law, 2007) Johnson, Dane E.
    Part I of this Comment provides a background on AETA from its origins in the bioresearch industry to its adoption as law. Part II compares the crimes of militant animal protectionists with those of militant abortion opponents. Part III then compares AETA and FACE, analyzing AETA’s constitutionality using as a model decisions upholding FACE. Part III concludes that AETA does not violate the First Amendment. Part IV argues that since AETA is likely to withstand First Amendment scrutiny, the law legitimizes an inconsistent use of the terrorism label that will hinder protected protest activity. Finally, Part V suggests reasons that this chilling effect is not benign, including societal consequences of constraining protest and economic consequences for protested enterprises.
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    Journal of Environmental Law & Litigation : Vol. 22, No. 1, p. 153-196 : The Pacific Salmon Treaty: A Historical Prescription for the Future
    (University of Oregon School of Law, 2007) Williams, Austin
    While the Pacific Salmon Treaty was reauthorized in 1999 (1999 Agreement), management of Pacific salmon under the Treaty has remained contentious and many salmon populations have continued to decrease in abundance. Moreover, the longterm fishing arrangements originally established under the 1999 Agreement are nearing expiration.10 As such, this Note seeks to inform future negotiations on Pacific salmon management through an analysis of past failures and successes, and the identification of possible solutions to foreseeable challenges. Part I summarizes the historical developments in Pacific salmon management and international agreements leading up to the 1985 Treaty. Part II identifies many of the threats to Pacific salmon. Part III analyzes the circumstances surrounding the 1985 Treaty’s signing, as well as its collapse. Part IV discusses the reauthorization of the 1999 Agreement. Finally, part V highlights the current challenges facing Pacific salmon management and outlines possible solutions to the ongoing disputes over salmon in the Pacific Northwest.
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    Oregon Law Review : Vol. 86 No. 3, p. 865-894 : Redefining What It Means to Be Charitable: Raising the Bar with a Public Benefit Requirement
    (University of Oregon School of Law, 2007) Keb, Tiffany
    This Comment seeks to explain how a public benefit requirement will improve the charitable sector in America. Part I explains what it means to be “charitable” in American tax law, and provides a general idea of what an organization must do to be exempt from federal taxes under the Internal Revenue Code (“I.R.C.”) § 501(c)(3). Part II describes the substantial benefits of being classified as a § 501(c)(3) organization. Additionally, possible rationales for preferential treatment of charitable organizations in the tax code are explored. Part III illustrates the need to reform current charity law, and explores what that restructuring might look like by examining reform occurring at the state level. It also examines charity reform recently passed in England and Wales in the Charities Act, which potentially offers a creative solution to reforming the American charitable sector. Part IV explores some of the concerns of government officials at the federal level regarding the charitable sector by summarizing a recent hearing before the House Committee on Ways and Means. Finally, Part V argues for the adoption of a public benefit requirement similar to the one in the Charities Act. Essentially, a public benefit requirement has already been adopted in several states, at least regarding the regulation of nonprofit hospitals. The success of these states in formulating public benefit requirements is evidence that doing the same at the federal level will not be unduly burdensome.
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    Journal of Environmental Law & Litigation : Vol. 21, No. 1, p.157-206 : Putting the €Sustainable€ Back in Sustainable Development: Recognizing and Enforcing Indigenous Property Rights as a Pathway to Global Environmental Sustainability
    (University of Oregon School of Law, 2006) Jaksa, Matthew F.
    This Comment proceeds in four parts. Part I traces the historical development of the colonialist conception of indigenous property rights, and describes how that conception continues to facilitate the developed world’s exploitation of indigenous peoples, territories, and resources. Part II discusses the failings of the sustainable development model in international environmental law. Part III proposes that using international law to decolonize the developed world’s conception of indigenous property rights can play a significant role in realizing the goal of environmental sustainability. Part IV examines the Inter-American Human Rights System as a positive model for further advancements in the field of indigenous property rights, both in terms of its expansive interpretations of existing human rights documents and a draft proposal directly addressing indigenous rights.
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    Journal of Environmental Law & Litigation : Vol. 21, No. 1, p. 207-250 : Shaping Oregon Climate Policy in Light of the Kyoto Protocol
    (University of Oregon School of Law, 2006) Robison, Jason A.
    This Comment focuses on the frontier of climate policy in the State of Oregon. Specifically, in light of the implementation of a global cap-and-trade system for greenhouse-gas (GHG) emissions under the Kyoto Protocol (Protocol), this Comment examines the policy option of implementing a regional GHG cap-andtrade system in Oregon and among the West Coast states. Much terrain is covered to give context. Part I provides a primer on climate science that describes the potential impacts of climate change on the global level and in the Pacific Northwest. After illuminating the potential threats posed by climate change, Part II describes the international community’s response, focusing almost exclusively on the Protocol’s cap-and-trade regulatory system for GHG emissions. In contrast, Part III shifts attention to the state and local levels. It begins by providing a cursory discussion of the climate policies and programs established by states and localities as well as some of the cutting-edge litigation brought by states and localities involving climate change. Part IV examines climate policies and programs in the State of Oregon, paying particular attention to the carbon dioxide (CO2) standard for new energy facilities (the Standard). Finally, Part V provides a comparative analysis of the Protocol and the Standard, discusses how Oregon and the other West Coast states can use the Protocol as a model to design a regional cap-and-trade system, and concludes by examining some of the potential obstacles and benefits associated with implementing such a system.