Oregon Law Review
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As the second oldest continuously published law review in the West, OLR has published more than 300 separate issues covering topics of state, national and international significance. Our mission includes contributing to contemporary scholarship by publishing articles from recognized scholars, and providing extraordinary member students with a national stage for their legal writings.
Print copies of this title are available through the UO Libraries, in the Knight Library general collection and Oregon Collection under the call number: KFO 2469 .O7; and in the Law Library under the call number: K 15 .R22
Digitized issues from 1921-present are available from HeinOnline. (restricted to UO community members).
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Item Open Access Abortion Law as Protection Narrative(University of Oregon School of Law, 2024-05-01) Inniss, Lolita BucknerThis is Article explores the 1820 criminal case of Connecticut minister Ammi Rogers. It uses an analytical, legal, and historical approach to explore the story of Ammi Rogers and what his story offers to our understanding of contemporary considerations of abortion. This Article, however, goes well beyond the historic account conveyed in legal documents and incorporates an approach more often seen in literature—a narrative analysis of law. The combination of legal, historical, and narrative analysis reveals the history, culture, and politics that have played a part in how we understand abortion in the United States.Item Open Access Adversarial No More: How Sua Sponte Assertion of Affirmative Defenses to Habeas Wreaks Havoc on the Rules of Civil Procedure(University of Oregon School of Law, 2012) Macfarlane, Katherine A.In every federal civil case, a defendant must raise its affirmative defenses in the pleading that responds to a plaintiff’s complaint. According to Federal Rule of Civil Procedure 8(c), failure to properly plead, for example, a statute of limitations defense, waives the defense for good. Rule 8(c) does not exempt any category of affirmative defense, nor does it forgive unintentional omissions of certain defenses. It also does not prefer governmental defendants to others. Yet in habeas corpus cases, the most significant affirmative defenses to habeas petitions need not comply with Rule 8(c). Instead, federal courts may raise the affirmative defenses of statute of limitations, exhaustion of state remedies, procedural default and nonretroactivity sua sponte even if the defense would otherwise be waived pursuant to Rule 8(c). This Article contends that habeas litigation is the worst place to grant State respondents any sort of procedural favor. Habeas cases implicate criminal convictions that are fundamentally unfair. And habeas petitioners need all the help they can get—since the passage of the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), the odds of winning habeas relief are akin to the odds of winning the lottery. After examining the history of affirmative defenses, the Article next describes the purpose behind Rule 8(c) and argues that the rule was meant to be strictly applied. It next explains how federal courts’ willingness to take sua sponte action on behalf of habeas respondents violates both the spirit and the letter of Rule 8(c). It further argues that the Supreme Court’s reliance on comity and other policy-based justifications do not suffice to overcome the Federal Rules of Civil Procedure, which apply without regard to what sort of case is being heard. In light of the curtailed substantive paths to habeas relief, it also contends that habeas cases are the worst candidates for aggressive sua sponte advocacy that revives affirmative defenses at the expense of those imprisoned unfairly. With respect to Rule 8(c), habeas respondents should be treated similarly to, not differently from, every other civil defendant. The Article concludes that assisting respondents with sua sponte action in habeas cases conflicts with the purpose of an adversarial system by giving an unfair advantage to defendants who need it the least.Item Open Access After Horton—Damages Caps and the Remedy Clause(University of Oregon School of Law, 2018-04-10) Hallman, W. EugeneThe cap on noneconomic damages of ORS 31.710(1) was declared unconstitutional in 1999 as a violation of the right to a jury trial under article I, section 17, of the Oregon Constitution. Lakin, in turn, was overruled by Horton v. Oregon Health & Science University. With the removal of the jury trial underpinnings of Lakin, the constitutionality of noneconomic damages caps is again in play.Item Open Access After the Ban: The Financial Landscape of International Soccer After Third-Party Ownership(University of Oregon School of Law, 2016-01-27) Hall, W. TylerIn September 2014, the Fédération Internationale de Football (FIFA)—the worldwide governing body of soccer—declared its intent to ban the contentious practice of third-party ownership (TPO). A TPO agreement is between a soccer club and a third party—an investment fund, corporation, sports agent, or private investor—by which the third party purchases an economic stake in future profits from the sale of one or more players at the club. The third party believes the player has the potential to improve and be sold to another club for a high enough fee to make a profit on the initial investment. The profits made selling economic stakes in future transfers are a crucial resource for cash-strapped soccer clubs around the world.Item Open Access “Ah Yes, I Remember It Well”: Why the Inherent Unreliability of Human Memory Makes Brain Imaging Technology a Poor Measure of Truth-Telling in the Courtroom(University of Oregon School of Law, 2016-05-09) Bard, Jennifer S.This Article demonstrates why efforts to develop brain imaging technology that will enhance the human ability to detect deliberate deception are doomed to failure because they are based on false assumptions about how our brains perceive and store information.Item Open Access Aligning the Criminal Justice System with the Mental Health Profession in Response to Hall v. Florida(University of Oregon School of Law, 2016-05-09) Wong, Ashley SachikoThis Note outlines the legal, moral, and social implications of the Hall decision. Additionally, it provides possible responses to the questions left unanswered by Hall regarding the need to remedy the relationship between the intellectually disabled community and the criminal justice system.Item Open Access An Analysis of Recent Oregon Court of Appeals Decisions Regarding Juvenile Dependency & Their Impact on Parental Constitutional Rights(University of Oregon School of Law, 2014-07-01) Murray, CarrieItem Open Access Applying Oregon's Abuse of a Vulnerable Person Statute to Date Rape Cases: Defendants Are in Treble(University of Oregon School of Law, 2020-01-18) Cumming, ScottThe common-law “apparent consent” standard has been criticized for allowing offenders to escape liability for sexual assault when the victim was too intoxicated or scared to say “no.” This Comment analyzes how Oregon’s “abuse of a vulnerable person” statute could apply to such cases—namely, civil cases in which the plaintiff was sexually assaulted by an acquaintance, and she was unable to express her nonconsent or consciously perceive the assault, due to intoxication or underlying trauma (i.e., “date rape” cases).Item Open Access The Arc of a Chameleon Bends Toward Justice: Remembering Keith(University of Oregon School of Law, 2012) Epps, GarrettItem Open Access Are We Still Not Saved? Race, Democracy, and Educational Inequality (Derrick Bell Lecture, University of Oregon, February 12, 2021)(University of Oregon School of Law, 2021-12-15) Epperson, LiaThirty-four years ago, in his seminal book, "And We Are Not Saved: The Elusive Quest for Racial Justice," Derrick Bell provided a critical view of American history and constitutional jurisprudence to illustrate the challenges the United States faces in reaching true equality. In his enlightened observations about the structure of our republic, Bell refers to “the American contradiction.” To see true progress toward meaningful equality, he contends, we must reckon with the challenging truth of our history—that we are a nation founded on this “constitutional contradiction”... In his work, Professor Bell argued that this American contradiction, “shrouded by myth,” serves as a perpetual impediment to addressing historic and persistent forms of racial injustice. This, he says, is “the root reason for the inability of black people to gain legitimacy.” This reality of racial inequality is part of our culture and common history. It is the contradiction embedded in the ideology that formed our republic.Item Open Access The Art and Science of Voir Dire: Empirical Research, Anecdotal Lessons from the Masters, and Illustrations Supporting the Ten Commandments of Voir Dire(University of Oregon School of Law, 2020-07-01) Caldwell, Harry MitchellThe least examined aspect of trial is voir dire. Although numerous law review articles and textbooks have studied and analyzed opening statements, direct examinations, cross-examinations, and closing arguments, voir dire has largely gone undiscussed. This is, in part, because, with few exceptions, voir dire is the product of local customs and idiosyncrasies that vary not just from state to state, or even from county to county, but oftentimes from courtroom to courtroom within the same courthouse. Another reason for the relative paucity of voir dire research and examination is the freewheeling nature of voir dire itself. As the only aspect of trial where advocates directly interact with persons from outside the justice system, prospective jurors bring an element of uncertainty and unpredictability to voir dire that can defy efforts to suggest generalized approaches let alone specific rules. Yet, despite the somewhat chaotic and even messy nature of voir dire, some truisms can and will assist counsel. This Article speaks to those truisms. The ten commandments set forth in this Article instruct counselors how to effectively conduct voir dire.Item Open Access #Audited: Social Media and Tax Enforcement(University of Oregon School of Law, 2021-05-06) Drumbl, Michelle LyonThis Article articulates a concern that the use of social media mining may pose a greater harm to low-income taxpayers relative to other types of taxpayers, in part because it is easier for the IRS to direct automated resources at the types of issues involved in examining those returns.Item Open Access Author Index. Volume 94(University of Oregon School of Law, 2016-07-06) Editorial BoardItem Open Access Batson v. Armstrong: Prosecutorial Bias and the Missing Evidence Problem(University of Oregon School of Law, 2022-05-12) Brown, Darryl K.Batson v. Kentucky prohibits prosecutors’ racially motivated decisions to eliminate a potential juror during jury selection. United States v. Armstrong prohibits prosecutors’ racially motivated decisions to charge a defendant with a crime. Scholars uniformly criticize Batson as an ineffectual doctrine. Most Batson challenges fail, but defendants do win those claims occasionally. They virtually never win Armstrong claims. Why is that so? Both decisions specify how the equal protection doctrine’s prohibition on racially motivated state action applies to prosecutorial decisions. Their doctrinal structures are roughly the same—a defendant must offer prima facie proof of a racially motivated decision; if he does, then the prosecutor must offer race-neutral explanations for her actions. Both require defendants to prove prosecutors’ subjective, racially motivated intent. Successful challenges under either doctrine are rare. Yet in the thirty-five years since the Batson decision, defendants have convinced courts hundreds of times—including, repeatedly, the U.S. Supreme Court—that prosecutors acted with racial bias when exercising peremptory challenges during jury selection.Item Open Access Becoming Asian American and the Magic of Historical Accident(University of Oregon School of Law, 2012) Cho, SumiItem Open Access Bending the Bars for Mothers: How Prison Alternatives Can Build a Stronger Oregon(University of Oregon School of Law, 2014-07-01) Eitenmiller, Katherine L.Item Open Access Beneath the Surface of the Clean Water Act: Exploring the Depth of the Act’s Jurisdictional Scope of Groundwater Pollution(University of Oregon School of Law, 2012) Makowski, AnnaItem 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 AnneThis 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.Item Open Access Beyond Best Practices: Lessons from Tina Stark About the First Day of Class(University of Oregon School of Law, 2017-05-10) Grant, EmilyThis Article reviews and expands the literature on best practices in a narrow subset—the first day of class. At the same time, it seeks to convey words of wisdom from one of the most well-known and highly regarded legal educators: Tina Stark, a giant in transactional drafting. The first day of any law school class can be fraught with tension and nerves, even for professors. This Article presents advice from Professor Stark, supplemented with guidance from best practices research, so that professors can take advantage of the opportunities that the first day of class offers to set the tone for a successful semester.Item Open Access Beyond Male or Female: Using Nonbinary Gender Identity to Confront Outdated Notions of Sex and Gender in the Law(University of Oregon School of Law, 2017-12-21) Hanssen, ShelbyThis Note begins in Part I by discussing concepts of contemporary gender theory necessary to contextualize the Oregon nonbinary ruling. Part II offers a brief history of legal determinations of sex and gender in the United States. Part III provides a thorough explanation of the Oregon and California rulings authenticating nonbinary gender status, as well as pending federal litigation on a similar issue. Part IV explores four major approaches to gender documentation in the United States. Part V suggests two concrete steps for the modernization of gender documentation policies and practices.