Oregon Law Review : Vol. 85, No. 4 (2006)

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    Oregon Law Review : Vol. 85 No. 4, p. 1063-1094 : Missing from Oregon’s Takings Clause: The Right to a Jury Trial of Compensation in Eminent Domain Proceedings
    (University of Oregon School of Law, 2007) Peterson, Sarah
    Although it may be surprising to some, no federal constitutional right to a jury trial exists for eminent domain actions, since, prior to the adoption of the U.S. Constitution, these actions were not tried to a common law jury. Because Oregon’s jury trial constitutional provisions largely mirror those in the U.S. Constitution, the Oregon Constitution provides no further protection in eminent domain proceedings than the Federal Constitution. Although a legislature may guarantee a jury trial by statute, this Comment aims to demonstrate that no such guarantee exists within Oregon’s statutes. Thus, a judge could validly deny a litigant’s request for a jury trial in an eminent domain proceeding. While this issue has yet to be directly addressed in an Oregon appellate opinion, Oregon’s newly enacted landmark land use statute, Measure 37 provides opportunities for trial and appellate judges to consider this issue in the near future. To cure any statutory ambiguity and to prevent unnecessary litigation, this Comment argues that the Oregon Constitution should be amended to guarantee the right to have a jury decide “just compensation” for a taking of private property in an eminent domain proceeding.
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    Oregon Law Review : Vol. 85 No. 4, p. 1027-1062 : Fairness or Fiction: Striking a Balance Between the Goals of § 1983 and the Policy Concerns Motivating Qualified Immunity
    (University of Oregon School of Law, 2007) Ackerman, Caryn J.
    Part I provides a brief overview of the background of qualified immunity, including its development and the motivations behind its creation. Part II examines the narrowest approach taken by any of the circuits in regard to the relevance of extracircuit precedent by analyzing a case from the Eleventh Circuit. Part III examines another case from the Eleventh Circuit, one that, in contrast to the previous case, was decided after three significant Supreme Court cases that forced courts of appeals to make significant changes to their qualified immunity analyses. Essentially, Parts II and III seek to answer two primary questions: First, does allowing some circuits to narrowly define relevant precedent that may clearly establish the law detrimentally affect plaintiffs to the extent that the Supreme Court should itself articulate a binding standard with more breadth? And second, even if such a standard was at one time needed, did the Court’s recent decisions render such a standard unnecessary? This Comment argues that a narrow standard creates an unwarranted disadvantage for plaintiffs such that a uniform standard regarding the relevance of extracircuit precedent is still vitally necessary. Part IV argues that a standard approach among all circuits requiring consideration of extracircuit precedent in the absence of binding intracircuit precedent is crucial to the development of civil rights jurisprudence.
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    Oregon Law Review : Vol. 85 No. 4, p. 993-1026 : The Inadequacy of Fiduciary Duty Doctrine: Why Coporate Managers Have Little to Fear and What Might Be Done About It
    (University of Oregon School of Law, 2007)
    This Article explains the current state of corporate responsibility by focusing on what has been largely disregarded in academic discourse to date: the interconnectedness of regulatory regimes and fiduciary duty doctrine. Part I begins by examining the history and evolution of regulatory control over the corporate form. In doing so, it shows the gradual loosening of control over corporations as those entities gained prominence in the United States economy. Part I also shows that this loosening was accepted because of the belief that common law fiduciary duty doctrine would provide sufficient monitoring of managerial behavior. Part II of this Article outlines the devolution of those corporate fiduciary duties that were supposed to safeguard the corporate arena. It explores the historic bases of the traditional fiduciary duties of loyalty and care and examines how far the doctrine has moved from these historic baselines over time. This perspective shows that the effectiveness of traditional fiduciary duties as a control mechanism over corporate management has diminished greatly over time to the point where they now are of little effect. The Article concludes that the loosening of regulatory control over corporate management, in the mistaken belief that fiduciary duty would provide sufficient disciplining incentive, helped create a culture where the current corporate scandals could flourish.
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    Oregon Law Review : Vol. 85 No. 4, p. 943-992 : “The Irresistible Force Meets the Immovable Object": When Antidiscrimination Standards and Religious Belief Collide in ABA-Accredited Law Schools
    (University of Oregon School of Law, 2007) Gerdy, Kristin B.
    This Article provides an overview of the conflict between religiously affiliated law schools and the nondiscrimination ideals espoused by the ABA standards and the GLBT community with regard to sexual orientation. In addition, it considers whether both interests can be fully served within a law school community or whether one interest must take precedence. Part I introduces the applicable ABA Standards that govern accreditation of American law schools and gives a brief overview of the creation and evolution of the antidiscrimination standard. Part II explores the First Amendment’s implied right of expressive association— a right that religiously affiliated law schools will likely invoke in adjudication of the conflict. Part III attempts to answer the question of whether the implied right of expressive association permits a religiously affiliated law school to adopt codes of conduct for students and faculty that might exclude practicing homosexuals from employment, and concludes that the First Amendment would protect such action.
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    Oregon Law Review : Vol. 85 No. 4, p. 913-942 : Cars, Cops, and Crooks: A Reexamination of Belton and Carroll with an Eye Toward Restoring Fourth Amendment Privacy Protection for Automobiles
    (University of Oregon School of Law, 2006) Chase, Carol A.
    Pursuant to Carroll v. United States, law enforcement officers may conduct a warrantless search of an automobile, including closed containers within, whenever there is probable cause to believe that the vehicle contains contraband or evidence. New York v. Belton permits the police to conduct a warrantless search of the “passenger area” of the vehicle upon the arrest of a recent occupant of the vehicle, even in the absence of probable cause to believe that the car contains any contraband or evidence. It is not an oversimplification to state that Belton and Carroll have severely compromised the protections of the Fourth Amendment with respect to automobiles. This Article will examine both the Belton and Carroll rules and will suggest a way to restore our Fourth Amendment privacy interest in our automobiles without compromising legitimate law enforcement interests. Part I will reexamine the Belton rule and consider the merits of abolishing it in favor of the more general rules governing searches incident to arrest and the Carroll automobile exception. Part II will urge a refinement to the Carroll rule that will favor the occupants’ privacy interests while still respecting the legitimate needs of law enforcement. Part III will conclude by arguing that our expectation of privacy in our automobiles can be restored through abolishing the Belton rule and modifying Carroll.
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