Oregon Law Review : Vol. 90, No. 3 (2012)
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Item Open Access Oregon Law Review : Vol. 90, No. 3, p. 729-772: Fully Federalizing the Federal Arbitration Act(University of Oregon School of Law, 2012) Yelnosky, Michael J.There is a widely shared belief that the Supreme Court’s Federal Arbitration Act (FAA) doctrine is far too solicitous of arbitration and not sufficiently solicitous of state lawmaking power. That may be so, but the Court has interpreted one provision of the FAA, the savings clause, to permit the application of state law to invalidate otherwise enforceable arbitration agreements. This Article examines the savings clause and its impact on provisions in arbitration agreements that interfere with the ability of claimants to effectively enforce substantive federal- or state-law rights.Item Open Access Oregon Law Review : Vol. 90, No. 3, p. 703-728 : Tsunami: AT&T Mobility LLC v. Concepcion Impedes Access to Justice(University of Oregon School of Law, 2012) Sternlight, Jean R.It is highly ironic but no less distressing that a case with a name meaning “conception” should come to signify death for the legal claims of many potential plaintiffs. The U.S. Supreme Court’s fiveto- four decision in AT&T Mobility LLC v. Concepcion is proving to be a tsunami that is wiping out existing and potential consumer and employment class actions. This Article will explore the decision; how the decision is being interpreted by lower courts; the decision’s impact on parties to such litigation; and how, if not legislatively limited, this case will substantially harm consumers, employees, and perhaps others.Item Open Access Oregon Law Review : Vol. 90, No. 3, p. 855-884 : Predictable Protection for Mediated Pendent State Claims: A Judicial Solution(University of Oregon School of Law, 2012) Rubstello, StephanieThis Comment begins by providing a general overview of privilege law. It discusses the differences between privilege and confidentiality, looks at how choice of law plays into privilege issues, outlines state and federal privilege, and shows what can happen when state and federal privileges come into conflict. Next, this Comment focuses on privilege in the context of mediation by contrasting mediation privilege with settlement protections, and it gives an overview of how various courts have looked at addressing questions of mediation privilege and confidentiality. This Comment concludes that, in order to provide claimants with predictability surrounding their mediation communications related to state claims ending up in federal court, federal courts should always treat state mediation communication protections as substantive law and apply state protections to state claims.Item Open Access Oregon Law Review : Vol. 90, No. 3, p. 691-702 : Foreword: ADR for the Masses(University of Oregon School of Law, 2012) Reynolds, Jennifer W.The 2012 Scholarship Series, “ADR for the Masses,” begins with the present issue and will continue throughout the year. The Series examines the proliferation of alternative dispute resolution (ADR) processes in large-scale contexts—such as mass torts, environmental and public policy decision making, collaborative governance, consumer disputes, and organizational dispute systems design—and encompasses both post-dispute processes (designed to accompany or replace traditional legal approaches to dispute resolution in mass contexts) and pre-dispute processes (designed to manage widespread or large-scale conflict and disputes earlier and more effectively). Sometimes ADR serves as a response or fix to the shortcomings of the legal system in situations involving multiple disputants or decision makers; sometimes ADR is an upstream strategy for managing disputes that, among other things, may render formal legal intervention unnecessary; sometimes ADR is a companion piece to traditional legal processes, pre- or post-dispute, when managing a mass disaster or large-scale dispute or conflict. The Series is an opportunity to identify not only the creative possibilities of these innovations and hybrids, but also to explore the logistical difficulties or ideological tensions that these new developments may present.Item Open Access Oregon Law Review : Vol. 90, No. 3, p. 837-854 : Law and “The Argumentative Theory”(University of Oregon School of Law, 2012) O'Neill, Timothy P.Item Open Access Oregon Law Review : Vol. 90, No. 3, p. 885-912 : Lines in the Dirt: West Linn Corporate Park, Exactions, and the Effort to Clarify Federal Takings Law(University of Oregon School of Law, 2012) Hogue, JakeThis Note addresses the Oregon Supreme Court’s opinion answering the questions certified from the Ninth Circuit. In particular, it looks to the Oregon Supreme Court’s discussion of when and how courts ought to apply exactions analysis to evaluate conditions imposed on development rights. Part I reviews current interpretations of the federal Takings Clause with a focus on the present uncertainty regarding the application of Nollan v. California Coastal Commission and Dolan v. City of Tigard to monetary obligations and ad hoc conditions imposed on development rights. Part II outlines the procedural history of West Linn. Finally, Part III examines how future courts may utilize West Linn to situate ad hoc development conditions in the context of federal exactions law. Part III also addresses how courts may usefully clarify the application of federal exactions law to ad hoc conditions with greater attention to the underlying property interest that the condition impacts.Item Open Access Oregon Law Review : Vol. 90, No. 3, p. 797-836 : The End of the Beginning: The Politics of Death and the American Death Penalty Regime in the Twenty- First Century(University of Oregon School of Law, 2012) Entzeroth, Lyn SuzanneThis Article examines the evolution of the death penalty in the United States, focusing on the modern death penalty regime that the U.S. Supreme Court sanctioned in 1976. As Mr. Davis’s execution demonstrates, the conversation around the death penalty has undergone a marked change in the last decade. Since 2007, a few states have abolished the death penalty, signaling an important turning point in America’s modern experiment with capital punishment. This Article traces these developments and the effect they may have on the future of the U.S. death penalty and the protection the Eighth Amendment affords.Item Open Access Oregon Law Review : Vol. 90, No. 3, p. 773-796 : Litigation Supply Should Not Exceed Shareholder ADR Demand: How Proper Use of the Demand Requirement in Derivative Suits Can Decrease Corporate Litigation(University of Oregon School of Law, 2012) Barsalona, Joseph C.This Comment explores the contours of the demand requirement— the forgotten alternative dispute resolution (ADR) mechanism available to all litigating shareholders—and how its efficient use could be beneficial for all parties as well as for the greater corporate community. Part I describes the derivative suit and the demand requirement generally, with particular attention focused on the procedures in Delaware and New York. Because these two states have the highest number of domestic incorporations of all states,13 it is important to see how their processes change the landscape of the requirement. Part II delves more deeply into the demand requirement and begins to explain its ADR policies and characteristics. Part III describes the MBCA model and explains why it gives the best possibility for improvement with corporate ADR. Part III discusses the positive effects in the states that have adopted the MBCA and how the same changes to other corporate codes could be the best way for companies and shareholders to save time and money. Finally, the Comment reemphasizes the importance of the demand requirement, argues why more states and corporations would benefit from it, and promotes the MBCA as an effective model for the future.