Oregon Law Review : Vol. 90, No. 1 (2011)
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Item Open Access Oregon Law Review : Vol. 90, No. 1, p. 335-358 : Muddying the Waters of Clean Water Act Permitting: NEDC Reconsidered(University of Oregon School of Law, 2011) Dahab, NadiaTwo related sections of the Clean Water Act have recently received attention in the Oregon courts—and not without considerable confusion. These Clean Water Act sections allow certain pollutant discharges into Oregon’s waterways, and the recent litigation has raised questions about their application to local mining operations. Gold mining has a long history in the western United States, and Oregon is no exception. Since the Gold Rush in the mid-1800s, prospectors have scoured the West for precious metals, laying claim to their “right to mine” under the General Mining Act of 1872. In recent years, recreational prospectors have begun using modern small suction dredges, a more accessible and lower-impact alternative to large dredging equipment, to search for the precious minerals on federal lands. Yet even small suction dredge mining is known to taint streams with toxins, disrupt wildlife habitats, and, ultimately, impact human health. Environmentalists have opposed the practice for years. In Oregon, the Northwest Environmental Defense Center has been fighting state regulations that permit small suction dredge mining practices since the state issued the regulations in 1997. Within the past two years, after California passed a statewide moratorium prohibiting the activity, small suction dredge mining on Oregon streams has become particularly popular, and its impacts particularly noteworthy.Item Open Access Oregon Law Review : Vol. 90, No. 1, p. 303-334 : Cyberstalking and Free Speech: Rethinking the Rangel Standard in the Age of the Internet(University of Oregon School of Law, 2011) Ajmani, NishaEach month, it seems, there are many new technological gadgets, hundreds of new smart phone applications, and Facebook changes that allow for increased information sharing and social contact. While such technological advances can make our lives easier, provide for greater creative expression, and encourage more expansive sharing of ideas and thoughts, such improvements may lead to negative consequences that must be addressed. Like other forms of cyber-victimization, cyberstalking presents unique problems that make it difficult for existing laws and law enforcement to adequately respond to and prevent criminal activity that is conducted using the Internet and other technological media. For example, cyberstalkers can easily remain anonymous online, and they can also take on the identity of their victims or any other third parties as a means to increase fear in the victims. Furthermore, because of the virtual context of cyberstalking, victims may be completely unaware of the perpetrator’s physical location—thereby potentially causing more fear and uneasiness in the victim. In addition, along with the numerous law enforcement difficulties that cyberstalking has created, cyberstalking has altered the landscape of free speech litigation as it pertains to the crime. Courts and American society more generally have long regarded the First Amendment as one of the primary hallmarks of the Constitution. There are, however, several forms of expression that the First Amendment and its state constitutional counterparts do not protect because of their potential danger to society—such as threats, child pornography, and incitement to unlawful action. This Comment explores how lawmakers can tailor laws or create new legislation to effectively respond to the dangers of cyberstalking while adhering to the American commitment to free speech; this Comment narrows its analysis of this issue to Oregon law specifically.Item Open Access Oregon Law Review : Vol. 90, No. 1, p. 247-302 : Let’s Get Serious: Spousal Abuse Should Bar Inheritance(University of Oregon School of Law, 2011) Spivack, CarlaPick your statistic: in the United States, every nine seconds a woman is physically abused. The Department of Justice concluded that between 1998 and 2002, of the almost 3.5 million violent crimes committed against family members, forty-nine percent of these were crimes against spouses. In a 1995–1996 study conducted in the fifty states and the District of Columbia, nearly 25% of women and 7.6% of men were raped and/or physically assaulted by a current or former spouse, cohabiting partner, or dating partner/acquaintance at some time in their lifetime (based on a survey of 16,000 participants, equally male and female). Despite a dramatic increase in awareness over the past twenty years, the problem seems intractable.Item Open Access Oregon Law Review : Vol. 90, No. 1, p. 191-246 : An “Outside Limit” for Refund Suits: The Case Against the Tax Exception to the Six-Year Bar on Claims Against the Government(University of Oregon School of Law, 2011) Gustafson, Adam R. F.Longstanding judicial precedent and the official position of the IRS agree that federal tax refund suits are limited only by the two-year statute of limitations of § 6532(a)(1) of the Internal Revenue Code, which is triggered only when the IRS mails the claimant a notice of disallowance. This Article contends that tax refund litigation is also governed by the six-year limitation of 28 U.S.C. § 2401(a) on “every civil action commenced against the United States,” which is triggered upon the accrual of a claim. The Supreme Court alluded to this dual-limitation scheme in 2008 in United States v. Clintwood Elkhorn Mining Co., stating in dicta that the six-year bar places an “outside limit” on the tax-specific limitation.Item Open Access Oregon Law Review : Vol. 90, No. 1, p. 113-190 : Cultural Understandings of Risk and the Tyranny of the Experts(University of Oregon School of Law, 2011) Wilson, Molly J. WalkerEvery year, lawmakers and agency regulators, with the input of industry experts and scientists, make hundreds of decisions about how to regulate conduct and allocate resources to address various types of risks that threaten the well-being of American citizens. In fact, managing and minimizing risk is one of the most important tasks of today’s policy makers. In spite of this fact, policy makers often take action without their systematically considering the preferences of the very people whose welfare is at stake. There are several reasons for this. The dominance of traditional risk analysis, with its emphasis on statistics and cost-benefit analysis, has influenced policy makers to downplay the role of values and subjectivity in risk management. The result has been that risk decisions have been based upon the erroneous assumption that empirical data and mathematical calculations alone are adequate bases for risk decisions. Rarely do decision makers acknowledge that ex ante consideration of public sentiment is valuable. In fact, a number of scholars have argued that because individuals become emotional about potential harms, scientific experts should make all risk decisions without any public involvement at all. A consequence of the focus on traditional risk analysis is that no one has developed a comprehensive model of public risk perception. Existing theoretical perspectives and methodologies have not offered a comprehensive model, and each suffers from a limitation of one kind or another. This Article argues that lawmakers cannot adequately manage risks without understanding how members of the public view and react to these risks. In an effort to provide specific guidance for future risk decisions, the Article synthesizes past risk perception research and theory in order to offer a comprehensive risk perception model. This model should serve as a tool for risk managers and policy makers and as a catalyst for future normative risk management debate.Item Open Access Oregon Law Review : Vol. 90, No. 1, p. 069-112 : Federal Judicial Disqualification: A Behavioral and Quantitative Analysis(University of Oregon School of Law, 2011) Buhai, Sande L.; Judges -- RecusalThe issue of judicial recusal has become front-page news. House Democrats have called on Justice Thomas to recuse himself from cases challenging the constitutionality of the Patient Protection and Affordable Care Act because of his wife’s role as a paid lobbyist against that Act. Republicans are calling for the recusal of Justice Kagan from the same cases because of her service as Solicitor General when the Obama administration was considering how to structure health care reform legislation to survive constitutional challenge. Over the past two centuries, judicial recusal standards have been tightened repeatedly. Nevertheless, in case after high-profile case, they still sometimes fail to ensure the kind of legitimating impartiality we demand of our courts.Item Open Access Oregon Law Review : Vol. 90, No. 1, p. 033-068 : Disparate Impact’s Impact: The Gender Violence Lens(University of Oregon School of Law, 2011) Goldscheid, JulieAlthough disparate impact theory often is touted as an important remedy for workplace inequality, in practice, it is less frequently used. Nevertheless, the theory can be a meaningful remedy for gender violence survivors who are subjected to adverse employment actions or termination for reasons that may not appear facially gendered. An employee may argue that the action had an impermissible gender-based disparate impact due to the disproportionate number of survivors who are women. Consequently, disparate impact would seem a natural remedy. This Article reviews infrequently explored issues that could be interpreted to limit the theory’s utility. It concludes that those limitations should not bar the theory’s use. Instead, disparate impact should offer an alternative remedy for the hidden role domestic and sexual violence plays in perpetuating women’s economic inequality.Item Open Access Oregon Law Review : Vol. 90, No. 1, p. 001-032 : Cybertrash(University of Oregon School of Law, 2011) Oppenheimer, Max StulInformation stored in a physical object receives the same Fourth Amendment protection as the physical object in which it is stored. See United States v. Karo, 468 U.S. 705 (1984). As information moves online, it becomes independent of physical objects, and therefore traditional rules must be reexamined. Others have argued persuasively, and courts appear receptive to the argument, that online communications and data should receive the same protection as their analogs embodied in the physical world. Even assuming that this conclusion will be universally accepted, a troubling consequence remains: the clear weight of authority holds that Fourth Amendment protection does not apply to information embodied in discarded physical trash. If this rule for discarded physical trash translates into cyberspace, then even if online communications and data are protected, “cybertrash”—deleted e-mails and other files—is not protected.