Open Publications

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Open Access
DEI Hard: The Future of DEI After Students for Fair Admissions v. Harvard College
(University of Oregon School of Law, 2024-12-16) Kenneth R. Davis
In Students for Fair Admissions v. Harvard College (SFFA), the Supreme Court effectively overruled Bakke, Grutter, and Fisher by declaring that racial diversity in higher education is no longer a compelling state interest. This ruling led the Court to hold that the affirmative action programs of Harvard College (Harvard) and University of North Carolina (UNC) violated the Equal Protection Clause. SFFA raises concerns about the future of affirmative action and other Diversity, Equity, and Inclusion (DEI) initiatives under the Equal Protection Clause, Title VII of the Civil Rights Law of 1964, and § 1981 of the Civil Rights Act of 1866.
Open Access
The General Jurisdiction Two-Step
(University of Oregon School of Law, 2024-12-12) Haley Palfreyman Jankowski
The Supreme Court’s watershed case on general personal jurisdiction, Daimler AG v. Bauman, celebrated its tenth birthday this year, yet it continues to be misunderstood. Daimler was the second of two decisions on general jurisdiction handed down by the Court following several decades of near-total silence on this doctrine. Daimler, together with its immediate predecessor Goodyear Dunlop Tires Operations, S.A. v. Brown, held that corporate defendants could be subject to general jurisdiction only in states where they are deemed “at home” or “essentially at home” and gave two paradigm examples of places that would constitute a corporation’s “home”: place of incorporation and principal place of business. Before these cases, general jurisdiction was commonly understood to have a much broader reach.
Open Access
Improving Oregon’s Natural Resource Estate Tax Exemption to Better Support Local Stewardship and Rural Minorities
(University of Oregon School of Law, 2024-12-12) Dustin R. Messner
This Comment examines a recent change to Oregon’s estate tax exemption for natural resource properties, Senate Bill 498. Part I examines the new exemption in light of Oregon and federal tax law. Part II assesses the new exemption under traditional tax policy criteria, such as practicality and equity. Part III analyzes how well S.B. 498 preserves family ownership of farms, forests, and fisheries and incentivizes environmental stewardship. Part IV depicts the exemption’s mixed implications for minority groups. Part V argues that the federal government should adopt a similar exemption. Lastly, Part VI offers a brief conclusion.
Open Access
Bridging the Immigration Detention Justice Gap
(University of Oregon School of Law, 2024-12-12) Jaclyn Kelley-Widmer and Alisa Whitfield
This Article examines how immigrant detention contributes to the access to justice gap and argues for an end to detention, alongside mobilization of law students in the interim. Throughout this piece, examples from clinic work in detention, especially in Louisiana, illustrate the arguments.
Open Access
College for Free, But at What Cost?
(University of Oregon School of Law, 2024-12-12) Lucy Johnston-Walsh
A growing number of states offer tuition waiver programs for youth involved in the foster care system who wish to attend higher education programs. However, many tuition waiver programs fall short of their goal by not providing adequate support for students to complete their college degree. Foster youth not only face numerous challenges before they enroll in an undergraduate degree program, but they also face many obstacles after enrollment which impact their ability to graduate from college. Much more needs to be done to increase post-secondary education graduation rates to best support these youth. This Article will examine the legal obstacles facing foster youth with college enrollment, review state-sponsored tuition waiver programs, and address the challenges for foster youth in completing their college education.
Open Access
Locked Out: The Oregon Rules of Civil Procedure Increasing Access to Justice in Oregon’s Eviction Courts
(University of Oregon School of Law, 2024-12-12) Molly Byrne Quillin
Eviction is a predatory practice that primarily targets low-income and marginalized populations. For some tenants, obtaining a lawyer and going to court for a civil justice issue requires subjecting themselves to an institution that they do not understand. Past experience with and connotation of the criminal justice system leaves tenants, particularly tenants from marginalized backgrounds, hesitant to pursue legal assistance and remedies in civil court. The Oregon Rules of Civil Procedure are an underutilized tool to improve access to justice in eviction court proceedings.
Open Access
Learning How to Learn Languages
(University of Oregon, 2024-10) Yerian, Keli; Bibi Halima; Adler, Faith; Fisher, Logan; Keaton, Cameron; Orsi, Addy; Pawar, Abhay
Learning How to Learn Languages is a student-developed, interactive, open-source online textbook. It is a collaborative effort of five undergraduate students, one graduate student, and a faculty member at the University of Oregon. It offers a comprehensive view of second language learning in one place, providing conceptual perspectives on language learning through a practical lens. This how-to guide is useful for learners of all levels and can be used in various ways: as a complete textbook for a course, as supplemental chapters in language courses, or as self-study. It contains ten chapters: five chapters on different foundational aspects of language learning followed by five additional chapters on language skills and their integration with practical strategies and example stories from learners. This OER incorporates various visual elements such as illustrations, student-created videos, authors’ stories, and H5P activities with built-in feedback for learners to engage independently. An interactive, accessible, and up to date web version is available at https://opentext.uoregon.edu/languagelearningedition1/.
Open Access
Introduction to Neurobiology
(University of Oregon, 2024-10) Singh, Avinash
Introduction to Neurobiology is aimed at undergraduate students new to the field of neurobiology. The first edition specifically targets students enrolled in BI360 Neurobiology at the University of Oregon.
Open Access
Test Record 3
(University of Oregon Libraries, 2024-09-13) Duck, Daisy A.
Open Access
Test Record 2
(University of Oregon Libraries, 2024-09-13) James Smith
Abs
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
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
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
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
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
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
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.