Oregon Law Review : Vol. 89, No. 4 (2011)
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Item Open Access Oregon Law Review : Vol. 89, No. 4, p. 1475-1500 : Punitive Damages: The Controversy Continues(University of Oregon School of Law, 2011) Trickett, Rachel D.Over the last few decades, states have responded to the controversy of punitive damage windfalls by implementing numerous statutory schemes that include caps on punitive damages and stringent burdens of proof. Oregon’s split-recovery scheme, while effectively curbing the problem of windfalls by allocating a portion to the State, has resulted in a new controversy. The Supreme Court of Oregon’s resolution of this controversy will have far-reaching effects. However, the limits of the Oregon Legislature to grant the State control over a plaintiff’s claim, the ample protections already provided for the State’s interest in an ultimate award of punitive damages, and the impracticalities of changing long-held principles of the American judicial system all indicate that the parties to a case need not obtain the State’s approval prior to settling a case.Item Open Access Oregon Law Review : Vol. 89, No. 4, p. 1445-1474 : A Proportional Response: Amending the Oregon Rules of Civil Procedure to Minimize Abusive Discovery Practices(University of Oregon School of Law, 2011) Nicholls, JenniferThis Comment begins by looking at the Federal Rules of Civil Procedure relating to discovery, the purpose and goals of discovery, as well as the three primary federal limitations on discovery, with a particular emphasis on the Proportionality Rule and its needed limitations on discovery, particularly in light of e-discovery. Next, this Comment will examine discovery rules in Oregon, the goals of discovery in Oregon, Oregon’s two limitations on discovery, and, finally, the conspicuous absence of the Proportionality Rule. This Comment concludes with a call for the Proportionality Rule to be adopted in Oregon because it is consistent with both the goals of the Oregon Rules of Civil Procedure (ORCP) and the purpose of discovery in civil litigation, and, additionally, it is a needed limitation given the profound impact e-discovery has and will continue to have on litigation in this state.Item Open Access Oregon Law Review : Vol. 89, No. 4, p. 1407-1444 : Should Oregon Adopt the New Federal Rules of Evidence?(University of Oregon School of Law, 2011) Lininger, TomThis essay explores whether Oregon should adopt the restyled Federal Rules of Evidence (FRE), and if so, to what extent. Part I analyzes the most important differences between the present versions of the Oregon Evidence Code (OEC) and the FRE. (This Part may be useful to students who need to memorize the unique features of the OEC in order to prepare for the Oregon Bar Exam.) Part II considers the primary reasons why the Oregon rules have departed from the federal model over the last few decades. Part III explores the advantages of adopting the restyled federal rules. Part IV addresses the disadvantages of importing the restyled rules in the OEC. Part V suggests one possible compromise that would preserve the distinctive character of the OEC while benefiting from the improvements to the FRE.Item Open Access Oregon Law Review : Vol. 89, No. 4, p.1357-1406 : See the Mojave!(University of Oregon School of Law, 2011) Nagle, John CopelandThis Article examines how the law is being asked to adjudicate disputed sights in the context of the Mojave Desert. The Mojave is the best-known and most explored desert in the United States. For many people, though, the Mojave is missing from any list of America’s scenic wonders. The evolution in thinking about the Mojave’s aesthetics takes places in two acts. In the first act, covering the period from the nineteenth century to 1994, what began as a curious voice praising the desert’s scenery developed into a powerful movement that prompted Congress to enact the California Desert Protection Act (CDPA) of 1994. The second act begins around 2005, when the nation’s energy policy again turned to the potential of renewable energy. The Mojave is an obvious location for large-scale solar energy development, but supposedly green technology threatens many of the scenic values that Congress decided to protect in the CDPA.Item Open Access Oregon Law Review : Vol. 89, No. 4, p. 1313-1356 : Health Inflation, Wealth Inflation, and the Discounting of Human Life(University of Oregon School of Law, 2011) Trachtenberg, BenThis Article presents two new arguments against “discounting” future human lives during cost-benefit analysis, arguing that even absent ethical objections to the disparate treatment of present and future humanity, the economic calculations of cost-benefit analysis itself—if properly performed—counsel against discounting lives at anything close to current rates. In other words, even if society sets aside all concerns with the discounting of future generations in principle, current discounting of future human lives cannot be justified even on the discounters’ own terms. First, because cost-benefit analysis has thus far ignored evidence of rising health care expenditures, it underestimates the “willingness to pay” for health and safety that future citizens will likely exhibit, thereby undervaluing their lives. Second, cost-benefit analysis ignores the trend of improved material conditions in developed countries. As time advances, residents of rich countries tend to live better and spend more, meaning that a strict economic monetization of future persons values the lives of our expected descendents above those of present citizens. These two factors justify “inflation” of future lives that would offset, perhaps completely, the discount rate used for human life. Until regulators correct their method of discounting the benefits of saving human lives in the future, the United States will continue to suffer the fatal costs of under-regulation, and agencies will remain in violation of legal requirements to maximize net benefits.Item Open Access Oregon Law Review : Vol. 89, No. 4, p.1257-1312 : Anti-Snitching Norms and Community Loyalty(University of Oregon School of Law, 2011) Asbury, Bret D.In recent years, a troubling trend has emerged within a number of poor, black communities. Termed “Stop Snitching,” it has manifested itself in the form of community members’ refusing to cooperate with police investigations of community crimes. The result of this widespread refusal to cooperate has been a reduced number of crimes solved within these communities; without cooperating witnesses, it has proven exceedingly difficult for police to make criminal cases. This Article suggests a different understanding of Stop Snitching, arguing that poor, black community members’ refusal to cooperate with police investigations should be viewed as neither ethically condemnable nor inexplicable, but rather as a natural extension of the innate human aspiration to be loyal. It does so by situating Stop Snitching within the existing literature on loyalty and asserting that the refusal to cooperate with police represents a privileging of community loyalty over loyalty to the state. Throughout the various strata of contemporary society, such privileging of the familiar over the remote is common, and Stop Snitching is neither puzzling nor reprehensible when viewed as a manifestation of this manner of prioritization. Once Stop Snitching is understood as a reflection of the weak loyalty bonds that exist between police officers and the poor, black communities they serve, it becomes clear that it can be curtailed and ultimately eliminated only through police efforts aimed atstrengthening these bonds. This Article closes with a discussion of the steps police should take in order to succeed in this regard.Item Open Access Oregon Law Review : Vol. 89, No. 4, p. 1179-1256 : Social Security Reform: Should the Retirement Age Be Increased?(University of Oregon School of Law, 2011) Templin, Benjamin A.This Article reassesses the policy option of increasing the retirement age, considering recently published studies on longevity, capacity to work, labor force participation, and poverty rates. Additionally, the Article considers recent work in behavioral economics in order to craft policy initiatives that result in a secure retirement. Part I of this Article analyzes the funding crisis facing Social Security and puts it into the context of the larger budget challenges facing the federal government. Part II discusses the history of retirement age provisions in the Social Security Act and presents a descriptive analysis of the current law. Part III considers the main arguments—pro and con—concerning the retirement age as well as an analysis of values that should guide reform. The extent to which the Social Security deficit is affected by various proposals is discussed in Part IV, and Part V analyzes the economic effects on workers. Employment trends and ability to work are analyzed in Parts VI and VII, respectively. Last, policy recommendations are made in Part VIII.Item Open Access Oregon Law Review : Vol. 89, No. 4, p. 1113-1178 : Weighing Status: Obesity, Class, and Health Reform(University of Oregon School of Law, 2011) Dolgin, Janet L.; Dieterich, Katherine R.This Article focuses on the association between poverty and obesity and the implications of that association for attitudes toward health care reform. It suggests that alongside the nation’s putative efforts to “fight” obesity sits a far less explicit attempt to undermine that effort. And it suggests that a similar conflict underlies the effort to mitigate poverty. These conflicts and the social tensions they reflect must be revealed and examined in order to understand fully the nation’s longstanding refusal, and its continuing reluctance, to provide adequate health care coverage for everyone. Part I considers America’s peculiar class system, comparing the myth with the reality. It then explores the significance of that system in explaining the nation’s hesitation about providing health care coverage for everyone. Part II compares social assumptions about poverty with social assumptions about obesity. This Part suggests that the nation’s putative interest in ameliorating poverty and “fighting” obesity is undermined by conflicting interests. Part III then summarizes and offers an explanation of the 2010 health reform law’s limited response to obesity discrimination and to discrimination based on class. Finally, Part IV examines the implications of the nation’s ambivalent response to expanding health care coverage, both before and after passage of the 2010 health reform law. That ambivalence is illustrated through reference to conflated images of poverty and obesity.