Oregon Law Review : Vol. 86, No. 3 (2007)
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Item Open Access Oregon Law Review : Vol. 86 No. 3, p. 679-732 : Colorblind Context: Redefining Race-Conscious Policies in Primary and Secondary Education(University of Oregon School of Law, 2007) Winters, Lauren E.This Article examines the ideological differences among the current Court over the interpretation and application of federal law, and the effect these differences have on unsettling prior Supreme Court precedent. Part I reviews the precedent that led to the Court’s conclusion that race-conscious admissions policies in the context of higher education did not violate the Equal Protection Clause of the Fourteenth Amendment. Part II examines the circuit court cases that held the diversity-based benefits identified in the context of higher education justified the exclusive use of race to eliminate racial isolation and segregation in primary and secondary schools. Part III contends that the ideological differences among the current Court created a fourfour- one split that still permits the flexible use of race to integrate public schools. Part IV concludes that, in the aftermath of Parents, local governments can reduce racial isolation and segregation in public schools and avoid strict scrutiny by making school assignments based on socioeconomic status (“SES”) factors because SES assignment plans neither burden a fundamental right nor use racial classifications to determine whether children can attend the schools of their choice.Item Open Access Oregon Law Review : Vol. 86 No. 3, p. 865-894 : Redefining What It Means to Be Charitable: Raising the Bar with a Public Benefit Requirement(University of Oregon School of Law, 2007) Keb, TiffanyThis Comment seeks to explain how a public benefit requirement will improve the charitable sector in America. Part I explains what it means to be “charitable” in American tax law, and provides a general idea of what an organization must do to be exempt from federal taxes under the Internal Revenue Code (“I.R.C.”) § 501(c)(3). Part II describes the substantial benefits of being classified as a § 501(c)(3) organization. Additionally, possible rationales for preferential treatment of charitable organizations in the tax code are explored. Part III illustrates the need to reform current charity law, and explores what that restructuring might look like by examining reform occurring at the state level. It also examines charity reform recently passed in England and Wales in the Charities Act, which potentially offers a creative solution to reforming the American charitable sector. Part IV explores some of the concerns of government officials at the federal level regarding the charitable sector by summarizing a recent hearing before the House Committee on Ways and Means. Finally, Part V argues for the adoption of a public benefit requirement similar to the one in the Charities Act. Essentially, a public benefit requirement has already been adopted in several states, at least regarding the regulation of nonprofit hospitals. The success of these states in formulating public benefit requirements is evidence that doing the same at the federal level will not be unduly burdensome.Item Open Access Oregon Law Review : Vol. 86 No. 3, p. 657-678 : Rethinking Profiling: A Cognitive Model of Bias and Its Legal Implications(University of Oregon School of Law, 2007) Geisinger, AlexPart I of this Article provides a short introduction to the problem of profiling and states’ regulatory responses. Part II describes the model of rational behavior that underlies the traditional conception of both profiling and regulatory responses. Part II then provides a new model of “implicit” profiling based primarily on the cognitive processes of categorization, and discusses the way in which this cognitive model reframes the basic profiling debate. Assuming the implicit processes involved in profiling, Part III considers alternative regulatory responses to profiling.Item Open Access Oregon Law Review : Vol. 86 No. 3, p. 733-796 : When Turnabout Is Fair Play: Character Evidence and Self-Defense in Homicide and Assault Cases(University of Oregon School of Law, 2007) Behan, Christopher W.In this Article, I suggest that the 2000 amendment to Rule 404(a)(1) did not go far enough in enhancing the jury’s ability to determine the probable first aggressor in a homicide or assault case. I propose a further amendment to Rule 404 that does two things: (1) permits the defendant to introduce evidence of the alleged victim’s relevant, specific acts of violence to demonstrate the probability that the defendant was the first aggressor; and (2) permits the prosecution to reply in kind, subject to a specific balancing test and the defendant’s constitutional right to present a defense. Regardless of whether the Advisory Committee adopts my proposed amendment, other American jurisdictions should consider amending their character evidence rules to enhance the fact-finding function of the jury in self-defense cases. Part I of this Article examines the defense of self-defense, the nexus between self-defense and character evidence, and the historical development of the self-defense-related character evidence rules, culminating in the 2000 amendment to Rule 404(a)(1). Part II introduces a proposed amendment to Rule 404. Part III suggests a test for evaluating character evidence rules in self-defense cases and applies this test to several hypothetical situations, comparing the proposed rule with the current rules.Item Open Access Oregon Law Review : Vol. 86 No. 3, p. 635-656 : From Pierce to Smith: The Oregon Connection and Supreme Court Religion Jurisprudence(University of Oregon School of Law, 2007) O'Scannlain, Diarmuid F.As an Oregonian, as well as a Ninth Circuit judge privileged to have chambers in the Pioneer Courthouse in the heart of downtown Portland, Oregon, I thought it fitting to reflect on the role of two landmark decisions on religion by the Supreme Court of the United States arising out of this state: Pierce v. Society of Sisters,1 decided over eighty years ago, and Employment Division v. Smith,2 decided within the last eighteen. While both cases were brought by religiously observant plaintiffs seeking relief from restrictive state measures, each carries its own significance for religious freedom. Having become fascinated by the increasingly extensive scholarship on these very important cases, I thought it might be useful to explore curious connections between these two decisions, which lead me to some counterintuitive conclusions about their impact on religious freedom.Item Open Access Oregon Law Review : Vol. 86 No. 3, p. 797-864 : Clicking and Cringing(University of Oregon School of Law, 2007) Kim, Nancy S.This Article seeks to expand the current discussion governing software licenses and argues that the sui generis nature of software often necessitates deviations from the classical contract model of bargaining. The Introduction sets forth the doctrinal problems related to nonnegotiated software licenses. Part I proposes a two-step analysis. The first step is to determine whether the putative licensee has assented and the nature of that assent (i.e. whether the assent is to engage in the transaction or whether the assent is to a particular term). The second step is to determine what terms govern the activity based upon the nature of the assent. Part II summarizes and analyzes the current case law using my proposed approach, and applies the approach to a sample license agreement. The Conclusion explains that a presumption of assent to scope of license terms and a requirement of actual assent to other material terms both respects the integrity of contract doctrine and accommodates business realities.