Oregon Law Review : Vol. 87, No. 3 (2008)
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Item Open Access Oregon Law Review : Vol. 87 No. 3, p.1061-1100 : The Oregon Constitution and the Quest for Party Reform(University of Oregon School of Law, 2008) Clucas, Richard A.In Part I, I provide a history of political parties in Oregon, describing their importance from before statehood to the present. This section explains how the role of political parties has changed over time and why party reform has come to look so appealing. In Part II, I examine three reform proposals that have been discussed in Oregon over the past several years: a nonpartisan legislature, the top-two primary, and fusion voting. I conclude by discussing other factors underlying Oregon’s political problems and some alternative solutions.Item Open Access Oregon Law Review : Vol. 87 No. 3, p. 1025-1060 : The Majority Will: A Case Study of Misinformation, Manipulation, and the Oregon Initiative Process(University of Oregon School of Law, 2008) Abrams, PaulaThis Article presents a case study of the initiative process by examining the campaigns waged for and against the School Bill. It is not intended to provide a thorough study of deception and discrimination in the initiative process. Instead, this Article offers case-specific insight into how voters can be manipulated by misinformation and prejudice. Part I examines the tension between representative democracy and the initiative process, particularly how the initiative undermines the deliberative process. Part II explores the history of the Oregon initiative prior to the School Bill. Part III describes how the Oregon initiative campaign for compulsory public education used misinformation to confuse voters and encourage bigotry. Part IV analyzes how voter ignorance, fear, and prejudice toward minority groups may taint the initiative process. Part V explores legal solutions and recommends that the courts reject the presumption of constitutionality attached to facially neutral legislation or legislation targeting nonsuspect classes and closely scrutinize direct legislation that harms historically disadvantaged groups.Item Open Access Oregon Law Review : Vol. 87 No. 3, p. 979-1024 : Direct Democracy, the Guaranty Clause, and the Politics of the “Political Question” Doctrine: Revisiting Pacific Telephone(University of Oregon School of Law, 2008) Williams, Norman R.In light of the widespread use of direct democracy in Oregon and elsewhere, this anniversary provides a good occasion to examine how direct democracy at the state and local levels became an accepted part of the American constitutional order. In this Article, I argue that the constitutionality of direct democracy has never received the thorough judicial consideration that the issue deserves. The Oregon Supreme Court, which validated the initiative and referendum, did so in a case that, significantly, did not involve an initiated or referred measure; it was decided on other, nonconstitutional grounds that obviated the need for the U.S Supreme Court to opine on the constitutionality of direct democracy. By the time that the validity of direct democracy reached the U.S. Supreme Court several years later, the heated political controversy surrounding the adoption of direct democracy in several western states induced the Court in Pacific Telephone to avoid reaching the merits of the question. The net result was to close the federal courts to constitutional challenges to direct democracy under the Guaranty Clause, a doctrine that has—erroneously in my view— remained in place ever since.Item Open Access Oregon Law Review : Vol. 87 No. 3, p.939-978 : The Partly Fulfilled Promise of Home Rule in Oregon(University of Oregon School of Law, 2008) Diller, Paul, A.This Article discusses some of the strengths and weaknesses of Oregon’s home-rule system. It posits that a particular advantage of Oregon’s home-rule system is its unique “reverse assumptions” of validity for local civil and criminal enactments.Item Open Access Oregon Law Review : Vol. 87 No. 3, p.867-906 : One Hundred Fifty Years of Electing Judges in Oregon: Will There Be Fifty More?(University of Oregon School of Law, 2008) Sheperd, PetePart I of this Article examines Oregonians’ original decision to select judges by direct competitive elections. Part II outlines criticisms of that decision and describes attempts to reform or reverse it. Part III recounts the history of direct competitive judicial elections in Oregon. In the last Part, this Article suggests two modest reforms that are consistent with the rationale for Oregonians’ original choice yet address some of the criticisms of that choice.Item Open Access Oregon Law Review : Vol. 87 No. 3, p867-906 : Direct Democracy, the Guaranty Clause, and the Politics of the “Political Question” Doctrine: Revisiting Pacific Telephone(University of Oregon School of Law, 2008) Williams, Robert F.In this Article, I argue that the constitutionality of direct democracy has never received the thorough judicial consideration that the issue deserves. The Oregon Supreme Court, which validated the initiative and referendum, did so in a case that, significantly, did not involve an initiated or referred measure; it was decided on other, nonconstitutional grounds that obviated the need for the U.S Supreme Court to opine on the constitutionality of direct democracy. By the time that the validity of direct democracy reached the U.S. Supreme Court several years later, the heated political controversy surrounding the adoption of direct democracy in several western states induced the Court in Pacific Telephone to avoid reaching the merits of the question. The net result was to close the federal courts to constitutional challenges to direct democracy under the Guaranty Clause, a doctrine that has—erroneously in my view— remained in place ever since.Item Open Access Oregon Law Review : Vol. 87 No. 3, p.819-866 : The Search for the Meaning of Oregon’s Search and Seizure Clause(University of Oregon School of Law, 2008) Landau, Jack L.In this Article, I trace the history of the interpretation of article I, section 9, the search and seizure provision of the Oregon Constitution. That history provides a useful lens through which to examine larger questions about the nature of the Oregon appellate courts’ commitment to state constitutionalism and the techniques with which they determine the meaning of the Oregon Constitution.Item Open Access Oregon Law Review : Vol. 87 No. 3, p.783-818 : Some Thoughts on Proportionality(University of Oregon School of Law, 2008) Balmer, Thomas A.This Article reviews the ancient concept of proportionality in punishment and turns to the more systematic application of this concept in the mid-18th century by Cesare Beccaria and William Blackstone and to current discussions of “just deserts” as a theory of criminal punishment. The Article then returns to the historical development of the constitutional requirement that criminal punishments be proportional to the offense, both in the explicit form in which the requirement is found in several state constitutions and as some decisions have interpreted the prohibition against cruel and unusual punishment found in the Eighth Amendment and in many state constitutions. With this background, the Article considers the Oregon cases interpreting the proportionality provision of article I, section 16, and concludes with an attempt to outline the approach these cases take in interpreting and applying Oregon’s proportionality provision.Item Open Access Oregon Law Review : Vol. 87 No. 3, p.731-782 : Remembering 1857(University of Oregon School of Law, 2008) Mooney, Ralph JamesThis brief paper will summarize the background, personalities, and debates of that memorable 1857 convention, as well as certain notable features of the constitution its delegates produced. To the extent possible 150 years later, I shall try to recreate the attitudes and atmosphere, the political and legal concerns, and, yes, the excitement the delegates themselves surely experienced. As others have written, the three dominant delegate concerns at the convention were politics, finances, and race.5 Who, and which political party, would emerge from the convention with enhanced prospects? In how many ways could the delegates minimize expenses, both of the convention itself and of the new state? And should Oregonians permit slavery, or free blacks, or even immigrant Chinese, within their borders? Other contentious issues included the new state’s boundaries, whether shareholders should be personally liable for corporate debts, whether to allow the legislature to charter banks, whether to include a bill of rights in the constitution, and, believe it or not, whether to spend $300 for a reporter to record convention proceedings.Item Open Access Oregon Law Review : Vol. 87 No. 3, p.717-730 : What Is a Constitution, What Is Not, and Why Does It Matter?(University of Oregon School of Law, 2008) Linde, Hans A.Some 150 years ago, Oregon adopted a conventional constitution of its time. Forty years later, in reaction to domination by entrenched political parties and interests, the “Oregon System”—in effect, Oregon’s second constitution—was designed to make government more responsive to the popular demands of the Progressive era. It succeeded as long as its original designers initiated laws to enact specific policies and initiated amendments to the constitution only to reform the institutions and electoral politics of government. The system went astray when later generations of activists began collecting extra signatures on petitions in order to erect constitutional monuments to some cause of the moment and place them beyond the reach of lawmakers elected to represent all the state’s people, both voters and nonvoters, and to take responsibility for balancing the state’s books. Oregon’s current text can fairly be described as a constitutional mess. But if those responsible for the state’s institutions find it dysfunctional, the original conceptions of “laws” and “amendments” leaves restoration of the distinction in their hands. The harder question is whether this also is within the capacity of the political constitution.Item Open Access Oregon Law Review : Vol. 87 No. 3, p.715 : Symposium: One Hundred Fifty Years of Oregon Constitutional Law: Reflecting Back and Looking Forward(University of Oregon School of Law, 2008)