Open Access Journals

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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.
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.
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 Anne
This 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.
Open Access
Unleashing Rule 5.1 to Combat Prosecutorial Misconduct
(University of Oregon School of Law, 2024-05-20) Cassidy, R. Michael
The 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.
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, Lauren
This 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.
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, Juliet
This 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.
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, Dylan
Oregon 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.
Open Access
Naked Class Waivers
(University of Oregon School of Law, 2024-05-20) Fritz-Mauer, Matthew
Mandatory 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.
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, Scott
Using 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.
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.
Open Access
#MeToo: Rethinking Law and Literature to Define Narrative Justice
(University of Oregon School of Law, 2024-05-20) Tewari, Geeta
The 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.
Open Access
Lest We Be Lemmings
(University of Oregon School of Law, 2024-05-20) Osborn-Wright, Claire
This 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.
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, Margaret
Domicile 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.
Open Access
The Critical Date and the Dispute over Islands in the Strait of Hormuz: Abu Musa and the Tunbs
(University of Oregon School of Law, 2024-05-01) Rossi, Christopher R.
An intractable sovereignty dispute over three Lower Gulf Islands in the Strait of Hormuz, a critical energy chokepoint, prompts a reconsideration of the ambiguities and tensions associated with international legal mechanisms to establish title to territory. Vagaries of history and competing narratives inform parochial perspectives of the disputants, the United Arab Emirates (UAE) and Iran, but tend to focus decision-maker attention on establishing a critical date on which to assess competing claims. This Article interrogates the significance of the critical date, noting its ontological development and shortcomings, and problematizes the significance of the critical date considering complexities associated with international law’s reliance on effectivités. Liberal internationalism’s chimerical emphasis on finality cannot escape the tensions associated with letting bygones be bygones through reliance on the critical date.
Open Access
A Just Solution to Port Pollution: Tailoring the Clean Ports Program to Ensure Equitable Distribution of Inflation Reduction Act Grants
(University of Oregon School of Law, 2024-05-01) Hooks, Molly M.
Pollution from shipping ports disproportionately harms low-income communities and communities of color. With an eye toward environmental justice, the Inflation Reduction Act will help mitigate this disparity. Specifically, its grants relating to zero-emission port equipment and technology, implemented through the new Clean Ports Program, have the potential to lessen the air pollution burden on near-port communities and further environmental justice. The government, however, must take measures to ensure this funding reaches and elevates the communities hit hardest by port pollution. These measures include targeting outreach efforts to under-resourced communities, using environmental justice research to guide decision-making, and providing transparent communication at every step of the implementation process.
Open Access
“Float like a Butterfly, Sting like a Bee”: A Discussion of the Tolerance Limits for Drone Attacks Under the International Norm
(University of Oregon School of Law, 2024-05-01) Kim, Jongho; Hwang, Junghoon
After the U.S. Embassy in Baghdad was attacked, an MQ-9 Reaper drone carried out the assassination of Qasem Soleimani, commander of the Quds Force (Elite Army of Iranian Revolutionary Guard). Concerns have emerged about the legal issues related to drone attacks, a countermeasure against North Korea’s continued nuclear tests, and the theory of a preemptive strike against North Korea’s nuclear missile facilities. State agencies’ assaults or preemptive attacks against people or facilities that threaten the safety of a country are referred to as targeted attacks and are gaining attention as a new means of force in the international community, including the United Nations. Preemptive strikes based upon anticipatory self-defense are permitted only in proportion to the extent that the threat of an enemy’s attack is imminent and there is no other means of defense under international law. Since the 9/11 terror attacks in 2001, it has been argued that the enemy’s ability and goals should be considered as more important criteria than the imminence of the attack. In the case of terrorist groups or rogue states that are developing weapons of mass destruction (WMD), threats are difficult to detect in advance and can be devastating if overlooked, so mitigating the requirements for the imminent nature of the attack should virtually allow for prevention.
Open Access
Producer Responsibility Organizations: An Essential Part of an International Solution to Plastic Pollution
(University of Oregon School of Law, 2024-05-01) McMillen, Matthew
Plastic pollution is causing irreparable harm to marine wildlife and the environment. The alarming buildup of plastic pollution is also continuing to negatively affect humankind, and current international law is insufficient to solve this crisis. This Comment proceeds in four parts. Part I summarizes the harmful effects of plastic pollution and explains why this crisis must be solved. Part II analyzes the current shortcomings of international law in this area. Part III explains the theory of Extended Producer Responsibility and introduces Producer Responsibility Organizations. Lastly, Part IV explores how the United Nations should incorporate Producer Responsibility Organizations into its new treaty.
Open Access
A Green New Foreign Practices Act: How to Enforce Corporate Environmental Responsibility
(University of Oregon School of Law, 2024-05-01) Robbins, Lauren
One of the biggest challenges facing international environmental protection is enforcement. States are called upon by agreements such as the Rio Declaration and the U.N. Framework Convention on Climate Change to develop laws establishing liability for environmental damage by their private actors. Even when states have strong domestic emissions standards, companies often outsource their pollution to those with lax standards or little enforcement capacity — often in the Global South.
Open Access
From Eugene to Seattle: Analyzing the Prosecution of Environmental Crimes Within EPA Region 10
(University of Oregon School of Law, 2024-05-01) Ozymy, Joshua; Ozymy, Melissa Jarrell
Criminal provisions in federal environmental law in the United States are reserved for the worst violations involving significant harm or culpable conduct, but we know little about how these crimes have been prosecuted within EPA Region 10, which includes the states of Alaska, Idaho, Oregon, and Washington. We use content analysis of 2,807 environmental crime prosecutions stemming from EPA criminal investigations, 1983–2022, and explore all 284 prosecutions occurring within Region 10 since 1983. We find defendants were cumulatively assessed over $196 million in monetary penalties, 947 years of probation, and 156 years of incarceration at sentencing. Forty-two percent of prosecutions focused on air pollution crimes, 19 percent hazardous substances, 13 percent water pollution, and 26 percent state-level crimes. We conclude by offering prescriptions for enhancing the criminal enforcement of the environment through structural budgetary investments, increased state-federal cooperation, and strengthening of criminal enforcement associations.
Open Access
The Status of “New Rights” Before the African Human Rights Commission and Court
(University of Oregon School of Law, 2024-05-01) Jimoh, Mujib
In 1986, the United Nations General Assembly (UNGA) adopted Resolution 41/120, which provides quality control for introducing new rights under international law. Under the Resolution, five criteria must be fulfilled: the new rights must (1) be consistent with existing international human rights; (2) be of fundamental character; (3) be sufficiently precise; (4) provide realistic and effective implementation; and (5) attract broad international support. Despite this heightened standard, the effort to introduce new rights has continued in the 21st century, with more than fifty new rights in queue. These new rights are either derivative from existing rights or freestanding. For its part, the UNGA seems to have been abiding by the UNGA resolution’s quality control practice. Over the last twelve years, it has recognized only two new rights through its resolutions—the right to a clean, healthy, and sustainable environment in 2022 and the right to water and sanitation in 2010. This method of recognizing new rights through UNGA resolutions raises an issue. On the one hand, UNGA resolutions are generally not binding under international law. On the other hand, the meticulousness and the time taken by the UNGA before recognizing these new rights could lead to the view that those rights have become customary international human rights norms. Yet, any attempt to argue that all new rights recognized by the UNGA through its resolutions have become customary international law is likely to be controversial.