Oregon Law Review : Vol. 93, No. 3 (2015)
Permanent URI for this collection
Browse
Recent Submissions
Now showing 1 - 6 of 6
Item Open Access Providing Adequate Protection for Comedians’ Intellectual Creations: Examining Intellectual Property Norms and “Negative Spaces”(University of Oregon School of Law, 2015-04-16) Gates, Trevor M.Scholars and policymakers largely embrace the notion that society as a whole benefits when creators can prevent the unauthorized copying of their innovations. This is primarily achieved by granting intellectual property (IP) rights to creators, which generally gives them an exclusive right to prevent others from using their creations without permission. In exchange for this right, those innovations are shared with others, and ideally, society and the creators benefit from this exchange. However, there is increasing debate over whether intellectual property rights adequately protect innovations and incentivize others to create new works, and if not, what can be done to further those objectives.5 In examining that question, this Comment focuses on one industry in particular that has, in recent years, received increasing attention from legal scholars and the general public—the comedy industry.Item Open Access The Tribal Trust and Government-to-Government Consultation in a New Ecological Age(University of Oregon School of Law, 2015-04-16) Rogerson, AmandaDoes American law have sufficient vitality to protect and respect the totally different worldviews and aspirations of America’s indigenous peoples?Item Open Access Rules of Engagement in the Conflict Between Businesses and Consumers in Online Contracts(University of Oregon School of Law, 2015-04-16) Ghirardelli, Aaron E.In its purest form, the law of contracts is premised on the ideal of a transaction between parties of equal bargaining strength, who enter a mutually binding and beneficial agreement through the give and take of an open and fair negotiation. But the realities of a modern market economy have required adjustments to that ideal. The law pertaining to adhesion contracts provides an apt example of one such adjustment. In those agreements, the negotiated contract gives way to the form contract in order to promote efficiencies of scale that will benefit both businesses and consumers (and the economy in general) by permitting the parties to forego the formalities of negotiation and mutual assent. This alteration to contract law was justified to allow businesses to reduce their transaction costs, which translates as a benefit to consumers in the form of lower prices for goods and services. Any such adjustment, however, should not undermine the basic idea of a mutually beneficial agreement between the parties.Item Open Access The Greenback, the Humpback, and the Silverback: How a Third Wave of Federal Water Policy Could Benefit the West(University of Oregon School of Law, 2015-04-16) Benson, Reed D.Proposing any major new federal initiative regarding water in the western United States might seem preposterous, given conventional wisdom and entrenched positions on state control of water resources. But there is a strong rationale, and a growing imperative, for a new federal water policy for the West. Many river basins face serious problems as limited water supplies are over-allocated, demands continue to increase, and climate change promises to exacerbate the West’s perennial problems of scarcity and variability. Solutions to such problems are likely to be expensive and will need to address national interests as well as state and local concerns. Like the first two eras of federal water policy—water project development, followed by environmental protection—the third wave will need to bring federal money to the table in proportion to the size of the problems to be solved. But that money will come with important conditions, helping to ensure that western water problems are resolved in a way that meets national needs. This Article begins by summarizing the value of the federal role in western water management, examining the first two waves of federal water policy, and exploring how Congress employed a broadly similar approach to both building water supply projects and regulating water quality. It then turns to indications of modern demands for federal involvement in western water issues, and concludes with observations about important elements of a third wave of federal water policy for the West.Item Open Access Federal Civil Litigation at the Crossroads: Reshaping the Role of the Federal Courts in Twenty-First Century Dispute Resolution(University of Oregon School of Law, 2015-04-16) Cavanagh, Edward D.The Federal Rules of Civil Procedure were promulgated in 1938 to provide the “just, speedy, and inexpensive determination” of all civil actions. The underlying theme of the Federal Rules is that meritorious litigants should have their day in court. To that end, the Federal Rules eliminated procedural pitfalls, including highly technical forms of action inherited from common law, that rewarded mastery of pleading techniques over the substantive merits of claims. The Federal Rules also introduced a simplified pleading system, commonly denominated as “notice pleading,” thereby easing the heavy burden imposed on the parties. The factual details of the case could then be developed through pretrial discovery. The aim was to facilitate, not to discourage, trial on the merits. Unfortunately, the stated goal of the Federal Rules to provide the “just, speedy, and inexpensive” determination of all civil disputes has grown elusive.Item Open Access “I Am Opposed to this Procedure”: How Kafka’s In the Penal Colony Illuminates the Current Debate about Solitary Confinement and Oversight of American Prisons(University of Oregon School of Law, 2015-04-16) Mushlin, Michael B.This is the 100th anniversary of Franz Kafka’s In the Penal Colony. The story brilliantly imagines a gruesome killing machine at the epicenter of a mythical prison’s operations. The torture caused by this apparatus comes to an end only after the “Traveler,” an outsider invited to the penal colony by the new leader of the prison, condemns it. In the unfolding of the tale, Kafka vividly portrays how, even with the best of intentions, the mental and physical well-being of inmates will be jeopardized when total control is given to people who run the prisons with no independent oversight. At the core of America’s vast prison system is the pervasive practice of solitary confinement, a practice that in many ways is analogous to the penal colony machine. Like the machine, it inflicts great psychological and often physical pain on people subjected to it. It, like the machine, is used to punish people for trivial offenses without due process. Like the machine, it is seen as essential to the operation of this closed prison system. Many of the new leaders of American prisons want to reform solitary confinement practices, but like the new Commandant in Kafka’s tale, without oversight, these leaders operate in the dark, unable to effectuate meaningful change by themselves.