Legal Articles
I entered law late in life or, better said, later than most people. I was 44 years-old when I moved from Central Kansas to attend Willamette University College of Law in Salem, OR in August 1996. I realized that when I chose to attend a "non-marquee" law school I was probably removing myself from future consideration for a legal teaching position. There are perhaps no institutions more obsessed with their people (attorneys or professors) going to the "right schools" than big law firms and law schools. But I felt that if I was going to begin a new career in my mid- to late-40s I needed to do it in a place where I already had friends (Oregon), and that returning to Oregon for law school would be helpful in that. In addition, I wanted to connect with an undergraduate school (I actually ended up teaching in the religion department at Willamette during 1997-98) where I knew people in religion, my original field. Finally, and not least, my family life was in danger of falling apart, and my wife and I wanted to return to more familiar surroundings in the Northwest to try to salvage our life together. Ultimately the latter attempt was unsuccessful; we divorced in 2001 after 24 years of marriage.
I began legal writing as soon as practicable, and had my first article published in 1998. Then, in rapid succession, came my book on the history of the Oregon death penalty (A Tortured History: The Story of Capital Punishment in Oregon (Eugene, OR: OCDLA Press, 2001) which I finished December 1, 1999 and had published in 2001, and several other articles. The purpose of this page is to give a flavor of the eight articles I wrote between 1998 and 2003. My current legal writing is devoted to mini-essays under "law" on the Web page. Two additional areas of historical interest I have in law are: 1) the life and work of Professor Simon Greenleaf (1783-1853), a professor of law at Harvard Law School when he and Joseph Story were HLS. Greenleaf was the author of the first Evidence treatise in American law and an active Episcopal churchman; and 2) the legal issues surrounding the formation of the Western Reserve in Ohio, Connecticut's reservation of Western lands in Ohio and its subsequent cession of those lands through the Connecticut Land Company to the State of Ohio shortly after 1800.
The following summaries or extended quotations come from the articles in order of their publication.
1. "Requiem for Robertson: The Life and Death of a Free-Speech Framework in Oregon, 34 Willamette Law Review 101-141 (1998). Footnotes are not provided.
"Oregon has long prided itgself on the uniqueness and expansiveness of its state constitutional guarantee of free speech. (1) For one influential court of appeals judge, the Oregon guarantee of freedom of speech is superior to that of the federal constitution because it provides more clarity, consistency and expanded protection to free speech than does the federal First Amendment. (2) Oregon courts have often sung the praises of the Oregon approach to free speech, and each successive decision implicating Article I, Section 8 seems to add yet another stanza to the hymn. (3).
The strength of free speech protection under the Oregon constitution rests largely upon an imposing intellectual framework erected more than fifteen years ago in the Supreme Court decision, State v. Robertson. (4) The Robertson framework is perhaps the most striking and well-developed in Oregon constitutional law since the state constitution jurispurdential revolution of the 1970s. (5) It is justly called a framework because it claims to provide a systematic method for determining the constitutionality of laws touching speech.
A significant number of decisions of the court of appeals and the supreme court have utilized the framework to assess the constitutionality of laws representing topics as widely divergent as child pornography, menacing, intimidation, harassment, obscenity, attorney or judge disciplinary proceedings, and various town ordinances limiting the rights to sell books or written materials. (6) In recent briefs submitted to the Oregon Supreme Court, both parties used the Robertson framework to argue the constitutionality of the Oregon Stalking Law. (7) No framework seems more secure or more firmly established.
Yet, the Robertson framework has been successively ignored, redefined, questiond or interpreted in such a way that the original animating vision appears to be nothing more than a distant flickering candle. (8) Furthermore, serious questions about the meaning and application of the "historical exception," first described in Robertson have been raised. (9) In addition, a disproportionate focus on the first part of the constitutional provision and an consequential ignoring of the "abuse" provision has resulted. (10) When these criticisms are considered, there are solid grounds for asserting that the Robertson framework is not simply undergoing an interpretive transformation but is actually moribund.
This Note discusses the modern development of Oregon case law concerning the free speech provision of the Oregon Constitution. Part II examines the intellectual background and formation of the Robertson framework. Part III describes the application and development of that framework from In re Lasswell (11) to Oregon State Police Officers Ass'n, Inc. v. State. (12) Part IV charts the redefinition and erosion of the framework from In re Fadeley (13) to State v. Stoneman (14). Part V discusses criticisms of the framework, including the "historical exception." Part VI concludes by describing how the court may consider future free speech claims...."
2. "Cleaning up the Oregon Revised Statutes: A Modest Proposal on Public Bodies, 36 Willamette Law Review 83-113 (2000). Notes are not provided.
"Once upon a time, when society was a lot simpler, government was less complex, and the Oregon statutes were much less bulky, the Oregon statutes used only a few terms to describe public bodies that would met and deliberate for the benefit of the people fo the state. (1) At the end of the nineteenth century, only such terms as state (2), county, city, town, municipality, municipal corporation, public corporation, district, body corporate and politic, board, and commissioner appeared in the Oregon codes and compilations. (3) Yet, since the turn of the century, and especially in the last fifty years, the extensive proliferation of terms and concepts to describe public bodies would probably dumbfound the original drafters of Oregon's earliest codes. (4)
In the last fifty years, Oregon law adopted such concepts and terms as local government, government agencies, government instrumentalities, government entities, intergovernmental agencies, quasi-independent corporations, semi-independent corporations, and many combinations and permutations of these terms. most reflect the growth and complexity of government that transpired as a society that originated in rural and small-town East-coast areas established deeper roots and more permanent institutions in the West.
Yet, the proliferation in Oregon law of terms describing public bodies is problematic. Often the problems are esthetic and can be solved with only a bit of pruning. For example, Oregon law has concepts such as local unit of government, unit of local government, and local government unit. There is no appreciable difference among the three terms, but each appears multiple times in the Oregon Revised Statutes. (5)
Sometimes, however, the problem is more extensive and of legal, not esthetic, proportions. For example, the Oregon public contracting law, Oregon Revised Statutes sections 279.005 to 279.990 [hereinafter ORS], requires that all "public agencies" or "public contracting agencies" follow a statutory bid procedure to assure that public projects invite all interested bidders. (6) Determining whether this law applies requires an analysis of whether the public body that seeks services or equipment is a "public agency." The Oregon Supreme Court confronted this question in 1992 when it held that the Legislative Administration Committee was not a public agency for pusposes of the Oregon public contracting law. (7) A careful reading of the opinion shows that the supreme court figuratively threw up its hands and decided the case on an "it seems good to us" rationale. (8) It recognized that it had no legal authority or guidance for making its decision. (9)
Indeed, the complexity of the issue may be such that certain bodies in Oregon will try, in the future, to "opt out" of coverage by the Oregon Revised Statutes as much as possible. For example, Oregon Health Sciences University, formerly an institution in the state system of higher education, persuaded the legislature in 1995 that it was an "independent public corporation," and that no future laws applicable to government entities passed in Oregon would affect it unless the law, when passed, made specific reference to Oregon Health Sciences University. (10)
This Comment discusses the proliferation of terms for public bodies in the Oregon Revised Statutes and proposes a few ways to clean up what is fast becoming an unmanageable problem. Partg I presents the plethora of terms used in the 1997 Oregon Revise Statutes to describe public bodies. Part II provides a brief hisotry of a few of the earliest terms for public bodies to show how Oregon originally conceived the role of public bodies. Part II describes a few terms in the 1997 statutes that illustrate the problems presented in Parts I and II. Part III additionally considers the modern development of terms such as local agency, public corporation (and its hybrids), subdivision (and its hybrids), body politic, and public body. Finally, Part IV discusses two Oregon Supreme Court cases (11) and one Attorney General opinion (12) that wrestle with the lack of clarity that results from the language in the Oregon Revised Statutes about public bodies...."
3. "Natural Resource Damages," in Environmental and Natural Resources Law, Oregon State Bar, Continuing Legal Education (2002), chapter 21, pages 21-1-26 (with Joan Snyder). This 26-page chapter in a continuing legal education notebook discusses the difficult yet timely issue of the cost of restoring a site where oil has spilled or a hazardous substance has been released. As we say in the introduction, an important distinction needs to be made between removal, response, or remedial work on a contaminated site, which relates to the cleanup of the site and restoration of the site, which relates to assessing the injuries to natural reources and effecting a plan to restore natural resources to a condition they would have been in without the spill or release.
The chapter goes on to review the federal statues, CERCLA and OPA (the Oil Pollution ACt of 1990), as well as Oregon law. In addition, we devote considerable attention to the federal administrative rules under both CERCLA and OPA. After a brief discussion of coordination issues, the heart of the chapter focuses on litigating a natural resource damages claim. We review the federal regulations and case law on injury, natural resources, causation and measure of damages. Finally, we consider the natural resource damages assessment process by examining preassessment, assessment (Type A and Type B Assessment) and postassessment issues under both CERCLA and OPA.
4. "A Time to Kill? Reflections on the Oregon Death Penalty," 62 Oregon State Bar Bulletin (April 2002), 9-14. The full text of this lead article appears on the Bar website, www.osbar.org.
"No one could have imagined that when a hunter stumbled upon the partly decomposed body of a young woman on a steep hillside overlooking the Molalla River in August 1987, his discovery would lead to the most dramatic serial murder case in Oregon's history. Within five days of the discovery another six female bodies were found, all within 100 yards of the first body. As the gruesome details about the manner of the victims' death gradually became evident, shock turned to horror. One body was too skeletalized to discern the precise nature of her death, but at least four of the others had had their feet sawn off and one of the victims was disemboweled. The sense of horror was prolonged and intensified as fresh details of the tortures, the victims' identities, or the signature manner of the killer were reported in the press in the following months. Oregon seemed to have its own "Green River killer," dubbed by the press the "Molalla Forest killer," in its midst.
By Sept. 17, 1987, a suspect was identified: Dayton Leroy Rogers, a 33-year-old male with a lengthy criminal record who lived in Canby and operated a small engine repair shop in Woodburn. A Clackamas County jury, ironically consisting of 12 women, found Rogers guilty of 13 counts of aggravated murder in the deaths of the six women, and the judge sentenced him to death on June 9, 1989.
According to the Death Penalty Information Center, when a person is sentenced to death in America, that person is normally executed within 12 or 13 years of sentencing if there are no complications with subsequent appeals. In Oregon, in mates condemned to death may pursue 10 legal proceedings after sentencing, the first of which is a mandatory appeal befoer the Oreogn Surpeme Court, before the state can legally put that person to death.
If Oregon were in line with the national trends, therefore, Dayton Leroy Rogers would probably be scheduled for execution sometime in 2001 or 2003. It may come as a surprise to learn that as of April 2002, Dayton Leroy Rogers still has all 10 of his legal proceedings remaining and, in fact, is legally further from execution than he was when the Clackamas County jury voted to give him the death penalty in 1989. Because of this, the earliest conceivable day that we might be able to execute Rogers is around 2020, if he has not died of old age (he was born in 1953) or illness before that time and if no more delays in his appeals result. The story of why this is the case cannot be understood without an awareness of Oregon's flawed death penalty statute, a whimsical judiciary, an electorate that thought it was getting tough on crime but ended up delaying the process of putting people to death, and ultimately, a legal system that is highly ambivalent about putting people to death in Oregon.
THE ARTICLE GOES ON TO PRESENT SECTIONS ENTITLED: "Oregon's Modern Death Penalty Law," "The Death Penalty in Practice," "Two or Three Sentencing Options on Remand?" "Other Steps" and, finally, "Concluding Reflections."
5. "Historical Reflections on the Constitutionality of the Oregon Will Contest Statute," The Contested Oregon Estate (Continuing Legal Education Program, 2002), 1-15.
"INTRODUCTION. One of the most arresting lines in the Oregon Constitution appears in the article on the judiciary, article VII (amended), which provides:
"In actions at law, *** the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict." OR CONST art VII (amended), sec. 3.
This section of article VII, passed by initiative petition in 1910 at the behest of William U'Ren's populist People's Power League, was meant to be both a check on the Oregon judicary and an affirmation of a litigant's right to have the decision reached by a jury of his or her peers be the final decision in his or her case. Under this provision, there would be no tampering with the sacred decision of the jury. It had the final word. The jury reigned supreme in Oregon's state courts.
With this constitutional emphasis on the central importance of the jury in Oregon jurisprudence continuing to this day, it may come as a surprise to note that Oregon today is one of a distinct minority of jurisdictions throughout the country that do not permit a jury trial in a will contest. Only 13 states do not permit a jury trial in a will contest; 7 of these, including Oregon, have a statutory prohibition of this practice. (2) Even though Oregon's statute has been upheld, there is good reason today for questioning the constitutionality of Oregon's will contest statute. (3) Careful historical analysis suggests not only that the statute is probably unconstitutional, but also that a crucial Oregon Supreme Court decision handed down shortly after the enactment of article VII (amended), holding that a jury trial in a will contest was impermissible, was motivated in part by the supreme court's attempt to overcome some of the limitations placed on judges in the 1910 amendments to article VII. (4)
After a brief review of the wil contest statute and the 1985 Oregon Court of Appeals decision upholding it, this paper will review the standard for determining the constitutionality of a will contest statute, discuss Oregon territorial statutes permitting jury trials in some aspects of will contests, and examine the supreme court decision that curtailed those rights."
6. "A Tortured Mini-History: The Oregon Supreme Court's Death Penalty Jurisprudence in the 1990s, 39 Willamette Law Review 1-29 (2003).
"In November 1984, Oregonians voed by a large majority to reinstate capital punishment in Oregon. (1) An initiative to restore the death penalty passed six years earleir but the Oregon Supreme Court threw it out in January 1981. (2) The 1984 statute, codified at Oregon Revised Statutes (ORS) section 163.150, (3) gave a jury tha found a defendant guilty of aggravated murder the option of choosing death or life with the possibility of parole in thirty years for the defendant. (4) Between 1984 and June 1989, twenty-two men were sentenced to death under the statute. (5)
The 1989 Legislative Asssembly passed two significant changes to the 1984 statute. This Article examines one of those changes: the addition of a "true life" or "life without the possibility of parole" sentencing option in aggravated murder cases. (6) This Article argues taht the implications of the passage of a true life amendment to ORS 163.150 were so complex and ill-understood by the Oregon Supreme Court that it resulted in significant judicial missteps, which gave an additional decade of life for several death-row inmates. (7)
Part II of this Article briefly explains the nature of the 1989 true life statutory change. Part III examines the application of the statute to the first detah penalty cases remanded to circuit courts after the Penry v. Lynaugh decision. (8) Part IV analyzes two crucial years (1992-94) in the Oregon Supreme Court's death penalty jurisprudence that plunged circuit court judges into confusion regarding he applicability of the true life sentencing option. Part V studies the reaction of circuit courts after 1994 when some of the affected death penalty cases were remanded again. Finally, Part VI examines the Oregon Supreme Court's about-face in 1999 and its attempt to explain the confusion caused by the 1992-94 decisions."
7. "The Casebook Method: Still Revelant?" Winter Street Law Journal (Fall, 2003), 3-4. Since this journal has only a small circulation, and the article is quite brief, I quote it in its entirety.
"Casebooks were first introduced into American legal education in 1871. In that year, Christopher Columbus Langdell, who was recruited in 1870 by Harvard President Charles William Eliot to lead Harvard Law School, published his Selection of Cases on the Law of Contracts. Willamette is now the only law school in Oregon to own the reprint of this first casebook.
Returning to the methodological roots of legal education through examination of the first American casebook yielded some unexpected insights, and questions, for me. First was the realization that the casebook method was already the third method used to educate lawyers in this country, the first being apprenticeship with a practitioner (ca. 1700-1820) and the second being mastery and recitation of the content of treatises on various legal subjects (ca. 1820-1875). Any claim, therefore, that the casebook method is anything other than a response to a perceived historical need at a particular point in our history, tends to raise the asebook to a status that is probably too elevated for it.
My second realization was that Langdell made cases central to the study of law because of his view that cases were the fontes, the sources, out of which the rivulos, or streams, of law emerged. In a period of time when legal study had to show itself worthy of inclusion in the University curriculum, a curriculum that was increasingly dominated by empirical scientific methods, Langdell thought that law needed its own empirical method worthy of a scientific discipline. Case examination would fit this goal.
Third, Langdell had a practical, as well as a methodological aim in putting together the casebook. Practically, he wanted students to have access to the cases, and because the library only had one copy of the nominate reporter of the English decisions he primarily use in his casebook, he could solve this problem through a casebook.
Methodologically, the casebook was to become the means by which legal doctrine was taught. Whereas the empirical method of examining the fontes owed it origin to modern science, the emphasis on doctrine and systems of doctrine in fact owed its origin to theology. Thus when Holmes reviewed the 2nd Edition of Langdell's casebook in 1990 he could proclaim Langdell to be, in words that were not meant to be complimentary, the greatest living legal theologian.
Do the justifications articulated or assumed by Langdell in 1871 still have resonance in 2003? Questionable is Langdell's assumption that the casebook uniquely gives us the fontes of law. In a day where more than 90% of reported cases are exercises in statutory or regulatory interpretation, one could more persuasively argue that the fontes of law today are not cases but statutes and regulations. They are the new fontes of law.
Second, the easy availability of cases through Westlaw and Lexis and through a growing number of web sites makes the whole text of a case easily accessible without cost to students. Indeed, the excerpted cases in casebooks often not only ignore the procedural posture of cases but also leave out much of the feel of a real life case.
Third, whether the purpose of legal instruction is to provide a doctrinal overview, and whether case study is the best method of providing that overview, are issues open to debate.
Landgell is dead but he rules us from the grave. It may be time for a reconsideration of the casebook method, too, ought to give way to a more 21st century approach to legal education."
8. "Free Speech in Oregon: A Framework Under Fire," 64 Oregon State Bar Bulletin (October 2003), 9-16.
"On November 3, 2002, at Linfield College, the Oregon Supreme Court will hear oral arguments in two cases that could dramatically curtail the generous protections afforded free speech under Article I, Section 8 of the Oregon Constitution. (1) At stake are not just the particular practices disallowed in the two cases, but whether Oregon's 21-year-old framework for adjudicating free speech claims has outlived its usefulness. Complicating matters is the fact tha this framework, the Robertson framework, has given Oregon a uni1ue national reputation as one of the states most protective of free speech rights. See State v. Robertson, 293 Or 402, 649 P2d 569 (1982). Thus, when all is said and done, what may be an unspoken but influential factor in the ultimate resolution of these cases is how the court responds to what one might call the myth of Oregon exceptionalism. Will this belief in Oregon's uniqueness, powerful in our political culture, find a footing in Oregon's free speech doctrine in the 21st century?
THE CASES
The vehicles that will help the justices probe these issues are two cases from smaller Oregon towns. The first, decided by the Court of Appeals in April 2002, has to do with the constitutionality of the Oregon statute prohibiting live sex shows, while the second, decided a few months later, concerns a Nyssa city ordinance prohibiting naked dancers from coming within four feet of patrons while they dance.
In State v. Ciancanelli, 181 Or App 1, 45 P3d 451 (2002), an owner and operator of a Roseburg business offering live sex shows was convicted of, among other things, violating ORS 167.062, which prohibits the promoting of unlawful sexual conduct in a public show. On appeal he argued that the statute prohibiting these shows violated Article I, Section 8 of the Oregon Constitution ("I,8").
In the majority en banc opinion upholding the constitutionality of the statute, Judge Landau opined that if live sex shows were considered conduct and not speech or expression, they would not be covered by I, 8. However, even if the court considered a live sex show to be expression, such a show would not be protected under I, 8 because the framers of teh Oregon Constitution would not have permitted it. In the technical langauge of the Robertson framework, to be discussed below, the scope of the restriction (the statutte prohibiting these shows) was "wholly contfined" within a "historical exception" in place in 1850 which was not displaced by the passage of the Oregon Constitution. Much of Judge Landau's opinion consisted of citations of statutes, cases and treatises from the 19th and earlier centuries showing tha tpractices similar to live sex shows were proscribed in most American states before and after 1859.
A few months later, a slightly different en banc majority of the Court of Appeals held tha a Nyssa city ordinance requiring naked dancers to stay at least four feet from their patrons while dancing did not offend I, 8. City of Nyssa v. Dufloth/Smith, 184 Or App 631, 57 P3d 161 (2002). Rather than engaging in another detailed historical survey, the majority opinion simply cited the voluminous research of Judge Landau in Ciancanelli to butress its decision. Both cases therefore anchored their opinions on the so-called hisotrical exception of the Robertson framework. What makes the appeal to this exception so novel in Ciancanelli and City of Nyssa, however, is that the Oregon Supreme Court has never permitted the use of the exception to disallow any act of expression in Oregon. Under the guise of dispassionate historical research, then, the Court of Appeals is directly confronting the Supreme Court on one of its most long-standing and universally affirmed frameworks.
THE ARTICLE THEN HAS SECTIONS ENTITLED: "The Robertson Framework and the Historical Exception," "Cracks in the Robertson Framework," "Options for Decision" and a brief "Conclusion."
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