Oregon Law Review : Vol. 90, No. 2 (2011)

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    Oregon Law Review : Vol. 90, No. 2, p. 525-582 : Employment Retaliation and the Accident of Text
    (University of Oregon School of Law, 2011) Long, Alex B.
    As this Article attempts to illustrate, it is only a matter of time before employment retaliation plaintiffs who are similarly situated to plaintiffs who have won before the Court start losing. Indeed, some of them are already losing in lower courts. And, as this Article further attempts to illustrate, there is no good reason for the disparate treatment. As the law currently exists, statutory retaliation plaintiffs win or lose largely due to the accident of statutory text rather than the fact that the law is operating as Congress envisioned or as part of a coherent scheme of regulation. In short, the federal approach to workplace retaliation is inefficient, unnecessarily complex, and in need of major reform. To that end, Part I catalogs the Supreme Court’s decisions on employment retaliation and its relentless focus on statutory text. Part II examines situations in which retaliation plaintiffs who are similarly situated to those who have prevailed previously before the Court are likely to eventually lose should the Court ever tackle the interpretive issues in question. Part III discusses the unnecessary complexity and lack of a coherent rationale that underlies the federal approach to employment retaliation. In order to address these problems, Part IV concludes by arguing in favor of a single antiretaliation provision that would apply to all federal statutes that prohibit retaliation in private, nonunion workforces.
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    Oregon Law Review : Vol. 90, No. 2, p. 643-690 : Health Reform and the Plight of the Uninsured Pregnant Woman
    (University of Oregon School of Law, 2011) Moody, Nicole
    Part I of this Comment seeks to explain the barriers preventing pregnant women from obtaining adequate and affordable health insurance coverage. I examine the three health insurance options currently available to pregnant women—employer-sponsored insurance, individually purchased insurance, and government-funded insurance—and provide an overview of the legal history regarding the pregnant woman’s access to health care coverage. Part II provides a discussion of the Patient Protection and Affordable Care Act (ACA) and analyzes whether Obama’s 2010 health care reform made any significant progress toward improving the pregnant woman’s ability to access affordable health care coverage. Part III concludes this Comment with further recommendations for reforming the new health insurance system, which include (1) updating the Federal Poverty Level (FPL) standard or adopting a new measurement to more accurately reflect the poverty level and economic need of families and individuals; (2) adopting a “fallback provision,” which extends affordable health insurance coverage to all pregnant women who do not otherwise have access to any means of affordable health insurance; and (3) instituting more outreach, transparency, and accountability within the government-funded health insurance systems.
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    Oregon Law Review : Vol. 90, No. 2, p. 583-642 : Leveling the Deference Playing Field
    (University of Oregon School of Law, 2011) Kovacs, Kathryn E.
    This Article examines the courts’ application of an extraordinary level of deference to the military in APA (Administrative Procedure Act of 1946) cases, even though Congress made a deliberate decision to subject the military to the same standard of review as other federal agencies under the APA. For all federal agency actions that are reviewable under the APA, Congress established a single standard of review. The APA’s history shows that the decision to subject all agencies to the same level of judicial inquiry was deliberate. Yet, courts continue to apply different standards of review to different agencies. The military continues to enjoy “super-deference,” even for actions that are reviewed under the APA. This Article explains why that is a problem and why there is no satisfactory explanation for that distinction.
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    Oregon Law Review : Vol. 90, No. 2, p. 359-412 : Securitization and Suburbia
    (University of Oregon School of Law, 2011) Hughes, Heather
    This Article explores the relationship between one typical form of real estate development finance—the securitized mezzanine loan— and one controversial phenomenon—suburban sprawl. It asks foundational questions about the connection between financial transactions and real-world applications of the capital they raise. In this work, sprawl serves as an example of an environmental consequence of applications of capital raised with a common form of transaction. This Article considers the extent to which commercial finance laws release forceful incentives driven by capital markets upon land use decisions, potentially undermining the collective, morally informed determination such decisions require. It rejects the aesthetic aversion to looking beyond transactional structures in the abstract to consider what results as commercial actors use typical deals to fund typical growth patterns. To the extent that standardized forms of financial transactions fund recurring land uses that many find problematic, the terms and structures of the transactions themselves should be a subject of critical inquiry.
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    Oregon Law Review : Vol. 90, No. 2, p. 449-524 : Justice, Employment, and the Psychological Contract
    (University of Oregon School of Law, 2011) DiMatteo, Larry A.; Bird, Robert C.; Colquitt, Jason A.
    Part I of this Article examines the evolving law of employment discharge. This part highlights the long history and development of the modern rule. Far from being a construction of judicial fiat, employment at will took hold in the United States as a result of a number of social and economic developments that impacted employment relations during the nineteenth and twentieth centuries. Part II introduces the concept of the psychological contract, a bundle of expectations an employee possesses about the mutual obligations extant between the employee and the employer. The psychological contract, a construct commonly used in human resource literature, offers explanatory power in that it helps explain the antecedents and outcomes of employment termination. In this Part we show that breach of psychological contracts by employers can have a meaningful effect on the attitudes of employees toward their employer. Part III provides the data and rationale for the empirical survey of employment termination presented in this Article. The respondents in the survey were provided one of twelve discharge scenarios involving issues of procedural and substantive justice. In some of the scenarios, the participants were provided degrees of information as to the state of the existing law of employment discharge. Respondents were then questioned on their attitudes toward the company and their willingness to seek legal redress. Part III then reports our findings. The study found that while substantive and procedural fairness in isolation improve employee attitudes, having both a fair reason and a fair process for discharge considerably amplifies these positive attitudes. We also reach the conclusion, among others, that propensity to sue correlates with the legal knowledge of employees regarding their rights or lack thereof. This Article concludes that employers have a significant influence over whether former employees take legal action or retaliate against the firm.
©2011 University of Oregon