Oregon Law Review : Vol. 91, No. 2 (2012)
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Item Open Access Casting Common Law and the Music Industry Adrift: Pre-1972 Recordings Enter Federal Safe Harbors(University of Oregon School of Law, 2012) Pinchin, Andrew M.Item Open Access The Need for a Unified and Cohesive National Anti-SLAPP Law(University of Oregon School of Law, 2012) Randazza, Marc J.Item Open Access Time for the Supreme Court to Address Off-Campus, Online Student Speech(University of Oregon School of Law, 2012) Hudson, David L. JrItem Open Access Regulating Blogging and Microblogging in China(University of Oregon School of Law, 2012) Lee, Jyh-AnItem Open Access Is There Such A Thing As Too Much Free Speech?(University of Oregon School of Law, 2012) Bezanson, Randall P.Item Open Access Lies, Damned Lies, and Journalism: Why Journalists Are Failing to Vindicate First Amendment Values and How a New Definition of “The Press” Can Help(University of Oregon School of Law, 2012) Edelson, ChrisThis Article identifies a specific problem—journalists who fail to provide the public with the accurate information needed to foster informed public opinion—and offers a specific solution: defining “the press” to provide protections and prestige only to those whose work actually advances First Amendment values. American journalistic norms facilitate lying by politicians, candidates for office, and other public figures. Because many journalists are committed to the ideal of balance above truth, they are often incapable of calling out lies. Instead, they create a false equivalence by suggesting there are two sides to every argument. I call this the “balance trap” problem—journalism that insists on presenting, without comment, two sides to every story, even when one side is demonstrably false. Politicians and other public figures are able to exploit this reality by making false statements with impunity, secure in the knowledge that journalists will not expose their deceptions. This Article does something new by describing a definition of the press that is based on specific examples of work journalists are doing and proposing a way to assess whether this work advances First Amendment values of truth and democratic competence. In addition, this Article does something new by identifying a central role for journalists themselves in defining press membership. Other scholars who believe that members of the press deserve specific protections seek to define press membership primarily through courts or legislatures. Ultimately, the goal of this Article is to give meaning to Oliver Wendell Holmes’s assertion that “the real justification of a rule oflaw is that it helps to bring about a social end which we desire.” Replacing balance trap journalism with journalism that gives Americans the accurate information they need to make informed decisions is a highly desirable social end. If we want to have a better press corps, we must begin with a definition of the press that has the potential to solve the balance trap problem by recognizing as members of the press only those journalists whose work truly advances First Amendment values.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 A Graceful Exit: Redefining Terminal to Expand the Availability of Physician-Facilitated Suicide(University of Oregon School of Law, 2012) Lewis, Browne C.For almost ten years, Oregon stood alone as the state that permitted terminally ill persons to choose the time and manner of their deaths. Finally, in 2009, Oregon received company when the State of Washington’s physician-facilitated suicide statute officially went into effect in March of that year. Supporters of the statutes hailed the enactments as a victory for persons seeking to die with dignity. Persons from groups like Compassion & Choices vowed to seek similar legislation in the remaining states. Representatives from the Washington State Medical Association, hospice groups and hospitals argued that the mandates of the statutes place physicians in an unnatural position. In particular, the Medical Association’s spokesman stated that physicians take an oath to save lives, not end them. Despite these objections, the number of persons in the country who support physician-facilitated suicide has continued to grow. At the end of 2009, the Montana Supreme Court indicated that physicianfacilitated suicide is not against the state’s public policy. This Article does not join the debate about the legalization of physician-assisted suicide. Rather, I have two goals. First, I suggest ways the current statutes could be improved to address the concerns of the critics of physician-facilitated suicide. Second, I recommend ways to expand the availability of physician-facilitated suicide so that more people can exit gracefully. To that end, I analyze the laws in Oregon and Washington and argue that the current statutes need to be amended to effectuate their legislative purposes. That analysis shows that the legislatures in those states attempted to regulate the process in order to protect the interests of terminally ill patients and physicians. The statutory mandates are a step in the right direction, but much work remains to truly honor those interests. The statutes should be amended to close certain loopholes and to ensure that the physician-facilitated suicide option is available to all of the patients who need it. Persons suffering from physical conditions that will lead to death within six months should not be the only persons permitted to exit gracefully. As long as the safeguards included in the statutes are followed, there is no good reason to prohibit persons suffering from irreversible and incurable physical diseases that lead to death from being classified as terminal. In addition, persons diagnosed with irreversible and incurable brain disorders, like severe dementia or Alzheimer’s disease, should be able to avail themselves of the rights provided by the physicianfacilitated suicide statutes. Alzheimer’s patients suffer a slow, painful death. They revert to childhood and forget everyone around them. The mental death they suffer is similar to the physical death experienced by terminally physically ill patients. During the early stages of the disease, most Alzheimer sufferers are still competent enough to request physician-facilitated suicide. Therefore, the statutes should be amended or interpreted to give them that option.Item Open Access Evading Emergency: Strengthening Emergency Responses Through Integrated Pluralistic Governance(University of Oregon School of Law, 2012) Gable, LanceThis Article examines the significant governance challenges that arise during responses to public health emergencies and proposes a new multifaceted strategy—integrated pluralistic governance—to address these challenges. Emergency preparedness is an inherently complex problem that entails the integration of scientific and medical expertise, good logistical planning, and clear laws and policies. The governance function has particular import for public health emergencies because pandemics, hurricanes, and other disasters can have profoundly divisive social and political consequences. Moreover, recent disasters like Hurricane Katrina and the BP Deepwater Horizon oil spill revealed an emergency preparedness and response infrastructure in the United States that was broken: starved of necessary resources, beset by problems at all levels of government, and undermined by poor decision making at each of these levels.Governance theories are particularly relevant to addressing the challenges posed by public health emergencies because these theories can help to explain and shape outcomes within complex systems. This Article delineates and explores three categories of governance models: traditional governance models, New Governance models, and diffuse governance models. These models provide insight into existing efforts to govern public health emergencies within and outside of formal emergency response systems and highlight unexplored avenues for strengthening these systems. Integrated pluralistic governance adopts aspects of all three governance models and encourages the development of concurrency, coordination, and redundancy to create a more effective and resilient public health emergency response system.Item Open Access Revolting Developments(University of Oregon School of Law, 2012) Wirtz, Richard S.Impracticability and frustration of purpose are important exceptions to the principle that contracts must be performed, come what may. At common law, the general rule is that the promisor bears the risk that a contract may become more burdensome or less desirable to her as a result of changes in circumstances for which she did not plan. But when an extraordinary circumstance renders a promised performance so different from what was to be expected that it changes the essential nature of that performance, the courts hold that justice requires a departure from the general rule. The law of impracticability and frustration, as it has evolved under section 2-615 of the Uniform Commercial Code (UCC), and section 261 of the Restatement (Second) of Contracts (Second Restatement), is more confusing than it should be and frequently and unnecessarily fails to achieve its purpose. Some easily implemented changes to the rules will render outcomes in these cases more predictable and more just.