ࡱ> #` Jbjbj Lv}*lll|"""8"r#49&##$$$$$$~9999999;hi=N9,0$$,0,09$$9292929,0$$~929,0~9292929$# A",0J29~990929>v2^>29>29L$N(29* - $$$998^$$$9,0,0,0,0 "$"  SEQ CHAPTER \h \r 1LAW REFORM IN OREGON: NOTES FOR A NEW GENERATION Hans A. Linde* In a Prologue to this journals 1983 review of new Oregon legislation, I observed that typically none of the three branches of government takes ongoing responsibility for the quality of the laws governing everyday private actions and disputes, and I welcomed the then-recent change of the legislative Law Improvement Committee into an incipient state law commission.1 It took only fourteen years before a suggestion by Professor Dom Vetri to a student interning in the Senate Presidents office, coupled with the enthusiasm and political skills of then Dean David Kenagy of Willamette Universitys College of Law, brought this dormant seed to fruition in 1997.2 During its first decade, the Oregon Law Commission has benefited from an essential continuity of leadership, exemplified by its chair, Representative Lane Shetterly, who was reappointed to the Commission and remained its chair after leaving the legislature, Attorney General Hardy Myers, serving as chair of the program committee, and David Kenagy, who became the first Executive Director. Willamettes Dean Symeon Symeonides, who joined the faculty in 1999, brought invaluable experience as a member of the Louisiana State Law Institute as well as with the uses of enacted rather than decisional law. The following reflections are little more than notes on David Kenagys article on the history of the first decade.3 What have we learned (or confirmed), and what needs continual attention? How may the commission make new contributions to Oregon law? A. The Institution 1. Structure The Oregon Law Commission by statute has thirteen members, including four selected by the legislature and one by the Governor, the Chief Justice, the Attorney General, the deans of Oregons three law schools or their representatives, and three appointed by the Oregon State Bar.4 This combination of legislators, judges, academics, and practicing lawyers has proved basically sound. Much, of course, depends on who is selected to serve on the Commission and how much continuous time and effort they choose to give it. This, in turn, reflects the Commissions functions. Much also depends on unpredictable changes in the states politics. a. Legislators Years ago Oregons biennial legislative assembly included a substantial contingent of lawyers from towns throughout the state, but with longer legislative sessions, frequent special sessions, and stagnant legislative salaries, these numbers shrank. Lawyer legislators have limited their service to a few sessions or have moved on to full-time state-wide offices.5 Moreover, because their constituents see law primarily as concerned with crimes, sentencing, law enforcement, and prisons, senior members of the judiciary committees often choose those high-profile interim projects over the less visible topics before a law improvement body. The familiar political response to public concerns about new or worsening anti-social behavior is to define new offenses and increase penalties, though without imposing burdens on private parties that may object.6 Penal law reform is not a likely assignment for the Commission. Most law reform projects are too painstaking and dull, and Law Commission membership is deliberately too balanced, to provide a platform for partisan politics. For these or other reasons, the legislative appointees have sometimes been lawyers who are not themselves legislators. This can be very valuable when it allows former legislators like Chair Shetterly to continue on the Commission, but less so if appointees serve only for a couple of years and do not gain experience and familiarity with the Capitol. Service by legislators through several legislative terms provides an essential link with the main addressee of the Commissions work. Some legislators indeed may use the position as an opportunity to advance a favored cause.7 But the legislative members can and should be ready to explain the substance of the Commissions proposals to their respective houses, and, at a very practical level, to deal with predictably recurring suggestions to cut the Commissions appropriations in favor of other priorities. b. The Chief Justice and the Attorney General It was the Oregon Law Commissions good fortune that at its inception these positions were held by professionally respected former legislators, who had been active in law reform during their years of legislative service: Chief Justice Wallace P. Carson Jr., a Republican, and Attorney General Hardy Myers, a Democrat. The contributions of these two members ex officio necessarily differ. Oregons Attorney General heads a large Department of Justice staffed with lawyers who, by statute, are solely responsible for advising and representing all state agencies.8 When an agency confronts legal problems that require statutory solutions, the agency usually seeks the necessary legislation directly, but deeper reforms that cut across agency lines may lend themselves to a Law Commission project.9 The same applies if outside interests propose legislation that affects the governments functions. The Attorney General is not only free but is expected to advocate the Departments position on all such proposals for policy as well as for technical reasons. Attorney General Myerss long private and public career made him the obvious and effective chair of the Commissions work groups both on the judicial review bill (dating from his legislative years before the Commissions creation), and for the later revision of the government ethics laws. The Chief Justice necessarily is more limited in arguing for or against a policy on the basis of debatable social or economic consequences, unless the argument relates to a proposals significance for the operations (and the budget) of the states courts. This also has constrained Chief Justice Carson and his successor, Chief Justice Paul J. DeMuniz, from assuming a leading role in a Commission work group. A major reason for including the Chief Justice was the hope of stimulating some system within the judiciary to collect and report instances, whether in statutes, regulations, or common law, where judges find sources of legal guidance more than ordinarily confused, contradictory, or simply lacking. This has not yet happened. Since the creation of the Oregon Court of Appeals, many problems in resolving everyday legal questions come before that court without ever reaching the Oregon Supreme Court. It may well be desirable to add the Chief Judge of the Court of Appeals to the Law Commissions membership.10 c. Law Faculties A similar goal was sought by including the deans of Oregons three law schools: to draw upon full-time faculty members both for a wide, informed perspective toward their academic subjects in and outside the state, and for the ability to formulate improved legal solutions without being professionally committed to any clientele. Dean Symeonidess and Professor James A. R. Nafzigers work toward codifying selected areas of the conflict of laws11 shows what can be accomplished, while promising projects on modernizing Oregons elective share provision and the automobile insurance code were caught in the crossfire between the client-oriented specialists of the Oregon State Bar. The organizational plan called for the Executive Director of Oregon Law Commission to be a tenured faculty member with a half-time teaching load who would devote the remaining time to involving academicians in identifying useful projects in their fields of expertise and taking an active role in Commission projects. This type of commitment for the extended period required is not easy to combine with a scholarly career. Dean Kenagy, not himself an academic, had his hands full for ten years getting the Commission established, funded, staffed, and, we may hope, recognized as a valuable fixture in Oregons governance. These remain essential tasks for long-term leadership. Eventually, the Law Commission needs both the existing Executive Director and a director of substantive programs. But, for various reasons, greater involvement of the law faculties will demand further work. The reasons include shifts in important professional subjects from the state to the federal or international level, as well as in the backgrounds of law professors.12 Deans can remind their faculties that the decentralized American legal system offers academic experts wider, less crowded opportunities at the state than at the federal level improve on the products that emerge episodically from appellate courts, from legislative reactions to headline events, or from general constituency demands; they also can make clear that creative work on a law commission project is valued similarly as, for instance, on a project of the American Law Institute.13 d. Bar Appointees Unlike salaried public officials and faculty members, the private practitioners appointed by the Oregon State Bar serve on the Law Commission and its work groups at substantial cost in valuable working time. Their presence assures the Commissions indispensable openness to the knowledge and experience of working professionals, and they make important contributions to different projects. Again, it is important that these appointees agree, and are reappointed, to serve long enough to enhance their own as well as the Commissions institutional memory of its projects. Not enough thought may yet have been given to these commissioners potential to act as a bridge between the Commission and the Oregon Bars specialized sections, whose members often represent diverse interests that the commissions recommendations may affect. When some of these specialists resist Commission proposals that would change an existing text and perhaps cast doubt on familiar verbal formulas or precedents,14 the Bars appointees could be in the best position to meet such fears and to explain the underlying reasoning both within the organized Bar and to legislative or other bodies considering the proposal. 2. The Commissions Legal Status A few issues lead to seeking labels for the Commission, its staff, or its products. For some purposes, the Commission unquestionably is an entity of state government, but it is not a part of the legislative, the executive, or the judicial department. Its purely advisory function saves it from the constitutional strictures against persons in one of these departments performing functions belonging to another, and therefore permits its deliberately mixed membership.15 It does, however, comply with the open meetings and open records laws.16 3. Commission Processes a. Selecting Projects The Oregon Law Commission performs a difficult balancing act. The Commission was and is needed to identify legal problems and propose solutions in areas, especially in private law and other areas that lack organized constituencies, for which no one in government assumes responsibility but that courts cannot reach on their own. The Commissions role is not confined to legislative solutions, yet it was established and needs funding by legislators who often want it to serve other priorities. The Commission responded by adopting a policy to take on any project directly requested by legislative leaders or the governor that the Commission, in its own judgment, could handle effectively, sometimes contingent on funding for added staff.17 Another source has been the Legislative Counsel office, which needs an official client for whom to work on modernizing old statutes that holds no interest for a legislative committee.18 Private law projects often face the tension between a recognized need to clarify incomplete, confusing, or outdated law and the risk of waking sleeping old dogs.19 Often, lawyers seem to prefer known uncertainty to a possibly unfavorable resolution. Public rhetoric, including that of judges, rejects judicial lawmaking, but in practice, lawyers resist turning to legislators until they learn what judges will do on their own; only then does the losing side seek legislation. When the Commissions program committee recommended clarification of an obscure, apparently contradictory section of the automobile insurance law, lawyers for three otherwise adversary interests conceded the sections obvious flaws, but they appeared together in atypical unison to warn the Commission against reopening other battles between the respective interests that had led to the existing patchwork, which would cost everyone money without reaching any result.20 Yet if the Commission did not take up reforms about which people might disagree on its own initiative, it would be reduced to serving legislators as an overqualified interim committee staff. b. Work Groups The search for optimal balance of the rationally ideal and the politically attainable also shapes the work groups assembled for each project, usually composed of knowledgeable practitioners, judges, or instructors in the subject area and headed by a Commission member. Their composition allows the flexibility needed to reflect the wide differences among Commission projects. Updating uncontroversial but obsolescent statutory texts while avoiding even unintentional policy changes is a tedious but valuable collaboration between legislative counsel, agency counsel, and a few practitioners or judges who work in the statutes domain. Sometimes the work group members share common substantive goals, as in the administration of family and juvenile law. After such a work groups consensus bill is reviewed by the Commissions members and formally adopted, it is likely to win enactment by the legislature. Legislative committees could oversee such projects themselves if they had enough staff, but the Commissions leaders as well as legislators value them as some quantitative score of the Commissions usefulness when its appropriation comes up. Other projects must accommodate diverging interests, among real parties or sometimes only among lawyers comfortable with existing law. Work groups assembled for such projects, along with independent judges and academics, aim to include members familiar with as many of the diverse points of view as feasible. These members are expected to bring their expertise to the work groups discussion but, in a phrase borrowed from the American Law Institute, to leave their clients at the door. Accordingly, the Commission has established an important distinction between voting members of a work group and other participants or advisers who may not vote. It would be as improper for a work group member as for a commissioner, aside from salaries from other employment, to collect a fee for official work on a Commission project. c. Commission Consideration The Commission can expect some interested parties to renew their objections to the legislature, whatever it may recommend. How should this affect the Commissions work? That may depend on whether the project originated in the government or within the Commission itself. If a topic is already on the legislative agenda, the Commission seeks a consensus consistent with the projects overall goals; failing this, the Commissions role is to propose and explain a principled choice on the unresolved issues. Except for the headline issues and fiscal struggles that divide the majority and minority parties, however, Oregons part-time legislature tends to direct other interested parties to settle their differences before it enacts the resulting compromise. Legislators rarely presume nor have time to study, debate, and decide these differences on their merits. When the Commission initiates a law reform not already on the legislatures agenda, no matter how useful it may be, opposition from any recognized quarter can prevent action on its proposal. For instance, when the Commissions proposed statute for resolving conflicts of law in contract disputesthe epitome of a low-profile, non-political area of private lawreached the moment of its only consideration by the responsible committee, a lawyer lobbyist confronted waiting Commission witnesses with a demand to exempt Washington automobile dealers (across the Columbia River from Portland) from the bill, claiming that it would conflict with their obligations to follow Washington State rules on financing contracts. When asked to spell out just how the bill did this, he refusedor perhaps was unableto do so but said he would demand that the committee postpone sending the bill to a floor vote. Given that a delay would prevent enactment at least for two years, Commission Chair Shetterly reluctantly concluded not to resist this demand. Why Oregon legislators should be solicitous of a lobbyist for Washington car dealers was left to ones imagination. d. Participation in Post-Commission Stages After the Law Commission has adopted its completed draft and the accompanying report, these can be changed only by another vote of the Commission. Individual commissioners or staff members can explain the Commissions proposal and defend the reasoning of its recommendations, but they cannot negotiate or endorse a change on behalf of the Commission, unless the Commission were to delegate such discretion to some of its members. Members, the Commission, and its work groups, however, remain free to express their own views on any issue, as they long as they make it clear that they are speaking for themselves and not for the Commission. Their ability to do so is important, because advocates for special interests as well as legislators, pursuing the customary negotiated lawmaking, are likely to ask commissioners whether some change in the proposal would be acceptable to the Commission. Individual commissioners may be helpful even if their views diverge about a particular amendment, deletion, or exemption. But the Commission is not a stakeholder with whom to negotiate a compromise. Once it has made its report, the Commission should resist being drawn into choosing sides among adversary interest groups, which might only divide the Commission along the same lines, contrary to its commitment to seeking solutions that are the best available for the legal regime involved and leaving political disputes to elected politicians. If lawmakers want the Commissions view of a proposed modification, there is no substitute for allowing enough time to consider and vote on a response, even at the cost of re-referring the bill for the next available opportunity. B. Planning for the Future: What Can be Learned from the Experience of the First Decade? Systematic law reform in a democracy faces two obstacles that are likely to continue for the indefinite future.21 Both reflect the legal professions law-school acquired view of courts as primary lawmakers. Any law reform worthy of the name strives for a substantial measure of clarity, coherence, and consistency. Legislative law-making, on the other hand, often adopts proposals for a narrow, ad hoc fix to someones problem, leaving a patchwork of what earlier generations might have scorned as private or special laws,22 and accepts ambiguous or indeterminate formulations if these will bridge, or defer, a conflict between opposing interests. A greater challenge is posed by the inescapable difference of time frames. A significant statutory reform is a long-term undertaking, while Oregon boasts that its legislators are part-time amateurs, few of whom now stay for more than three or four sessions. The lawyers among them must deal with a wide range of current legal issues and can maintain continued attention to only a few long-term projects. The Commission itself faces continual change. Yet the Commissions projects represent too great an investment in time and money to be shelved unless enacted. How could prospects for their use be improved? 1. Choice of Format The Oregon Law Commission should continue whenever possible to undertake projects requested by legislative leaders or by the Governor. These normally are assured of legislative attention, though to avoid being used as a political waste basket, the Commission might routinely obtain a statement describing the requesting bodys sustained interest in pursuing the object of the request. Its unique role, however, is to propose improvements in problematic legal regimes that do not otherwise engage someones political agenda. The Commission is not restricted to drafting legislation. Many legal problems can be avoided or resolved by properly written rules adopted by a responsible public entity within its assigned authority. Despite some vestigial notion that only legislators should make rules, whenever agency rules can do the job, agencies should act.23 A more pragmatic concern is that drafting proper rules, like statutes, requires lawyers and costs money. The Commission could do the work in areas where the Department of Justice does not, either for a specified use or as adaptable model rules. The model might be considered for projects like the Commissions study of agency background checks, which may have quite distinct functions in different contexts. It also should be considered for offering guidance on constitutional issues upon which judicial elucidation is rare. One example could be standards guiding law enforcement officers compliance with Article I, Section 13 of Oregons Bill of Rights, a section with everyday operational importance but few occasions for judicial application.24 Similarly, legislation is unnecessary if a problem can be solved by using an existing source of law. Nothing prevents the Commission from recommending a solution attainable by judicial decision, the preferred recourse of practicing advocates in any event. It could prove useful in issues of tort law, where opposing sides are likely to derail almost any proposal for legislation.25 An example may be found in a recent Oregon case involving the significance of labeling persons injured by some condition on a landowners property (the trichotomy of invitees, licensees, and trespassers), which commissioner Dom Vetri earlier proposed as a potential project, and which Oregon courts have not reassessed for the relevance of modern decisions on duty and Oregons comparative fault statute that may make further legislation unnecessary.26 Another project could be to formulate a principled alternative to ad hoc judicial theories whether a law penalizing injurious conduct implies a duty to compensate the anticipated injured victim. 2. Planning for Follow-Through Unless it responds to an official request, an embryonic law reform needs pre-natal as well as post-natal care, often for years. In considering a proposed subject, the program committee should ask the proponents and itself who can be counted on to lead future efforts to turn the proposal into legal reality. If, as usual, the proposal calls for legislation, the Commission should identify at least one legislator, preferably in each house, who is prepared to press for legislative action, often for more than one session, and should invite these persons to participate in the work group. The Commission itself does not lobby for its proposals on its own behalf, but without active leadership, any proposal is vulnerable to even minor opposition or to simple neglect in favor of other items on the legislatures agenda. How much a Law Commission product should accommodate the views of affected interests does not lend itself to a general formula. The Commission constantly must guard against becoming a mere interim legislative committee; when a project consists only in arbitrating a conflict between opposing interests, it properly is done by the legislature itself. It should resist being credited with legislation that has been radically changed from the Commissions proposal. There is, however, one useful device for dealing with such conflicts that the Commission has not yet employed in its own projects: it can submit alternative versions of selected provisions for decision by the eventual lawmaker, particularly when the conflicting interests argue over quantified elements such as filing deadlines, statutes of limitation, or amounts of damages. Completed but not yet enacted projects remain unfinished business unless mooted by the adoption of another solution or by other events. The Commission should find a way for its major work to appear in a permanently shelved and indexed publication (as long as these continue to exist). For example, when academic experts prepared studies for the Administrative Conference of the United States, these often appeared also as signed law review articles. The Commission should review its completed but unrealized projects annually and engage their original or successor supporters in their renewed consideration. Also, groups proposing narrow bills to address some specific legal concern may be as unaware as the legislators of solutions that have previously been studied and recommended by the Oregon Law Commission.27 It would be easy and useful to establish a system of routine cross-checking between designated legislative and commission staffs, and to offer the Commission an opportunity to comment before or at hearings on such bills. C. Conclusion. The Oregon Law Commission has successfully survived its first decadenot a sure thing during a time of squeezed public budgets, sliding confidence in public institutions, and deeper partisan divisions in Oregons legislature. As these obstacles recede, the teenager shows every sign of becoming a healthy, productive contributor to the states laws and institutions. The Commission has gained experience with combining two different functions. One is to serve the legislature and other lawmakers as a separate, non-political overseer of complex or otherwise time-consuming projects. This task ranges from bringing obsolescent agency statutes up to date to such difficult and controversial substantive topics as the government ethics laws. Some of these efforts will be enacted without difficulty, others only in part and with changes, but each counts towards the Commissions legislative productivity. The second function is to originate improvements in Oregon law on its own initiative or suggested by sources outside the states political branches, such as the courts, the professional practice, academic observers, or organizations such as the American Law Institute, the Uniform Laws Commission, or more specialized groups. One can debate which task is more important, one that previously and in the future would find its way on the legislative agenda anyway, or one facing neglect and lower odds of enactment precisely because it lacks political appeal. In fact, both are important, and the Commissions structure has proved to be well-designed to maintain both functions. But, compared to other professions, such as medicine, architecture, engineering, or any physical science, law surely is among the most conservative in hoarding its stock of familiar knowledge and formulas against reexamination and change. To identify and undertake promising subjects for reexamination and reformulation in the years ahead, the Commission will need help. Some help can come from within the Commission itself. The Chief Justice or other representatives of the judiciary might designate a staff attorney systematically to collect examples from judges of cases in which they have found existing sources of law more than usually obscure, outdated, or simply lacking, and a way to decide which problems to bring to the Commissions attention. Members appointed by the Oregon State Bar might suggest a similar way to collect, with the help of the Bars staff, topics from its sections or individual members for Commission consideration, possibly in conjunction with a sections own ongoing program, and they might in turn keep Bar sections informed of projects proposed to the Commission. Deans could routinely remind and encourage faculty members in areas of state law to follow developments in the state, to suggest needed or potential improvements, and to publish articles (not necessarily in highly academic journals) on the most significant of these. Growth is not without cost, as anyone living with a teenager knows. Any activity beyond what the Commission does today will increase demands on the time and attention of the commissioners. Legislative members will need to justify and secure additional staff assistance. But this will be true of other institutions in step with the growth of the states population, economy, and demands on its legal system. In time, the legislature itself is likely to develop more professionalism, perhaps as a result of regular annual sessions and higher legislative salaries. Like Hardy Myers, Lane Shetterly, and Kate Brown, other experienced lawyer legislators may accept extended appointments to the Commission, and will scrutinize the substance of Commission proposals with their own professional judgment beyond convening and presiding over work groups of non-legislative experts, and will continue to pursue those proposals over the necessary number of sessions. This continued attention needs to be secured in some manner. Legislative committees, too, may come to invite the counsel of professional staff members on matters of substance beyond institutional memory, committee hearings, and the flow of bills through the legislative process. If the Commissions staff can extend its working relationship with the legislative counsels staff to professionals on substantive committees, this would benefit both institutions. As the number of past commissioners grows, it would be wise to invite these alumni, particularly former legislators, to join in appropriate work groups and otherwise to keep them informed or involved in the Commissions continued activities. Doubtless all this will take time, and political developments may take a wholly contrary course toward neglect and loss of funding. But, Oregons leadership is given far more to caution than (initiative measures aside) to sudden political lurches. It should be interesting to see in another decade how the Oregon Law Commission has developed to full adulthood. * Professor Hans A. Linde is a Distinguished Scholar in Residence at Willamette Universitys College of Law. He served on the Oregon Supreme Court from 19771990 and has served on the Oregon Law Commission since 1997, when it was first created. 1. Hans A. Linde, Law Revision in Oregon, 20 Willamette L. Rev. 211 (1984). The Law Improvement Committee, partly on the suggestion of Chief Justice Arno Denecke, differed from earlier legislative interim committees in including the Attorney General and the deans of Oregons three law schools and in authorizing its staff attorney to solicit and report potential subjects for law reform. Id. at 216 & n.6. An earlier version of a law commission was proposed in the new constitution drafted by the 1961-1962 Commission on Constitutional Revision, reprinted in 67 Or. L. Rev. 195 (1988). 2. 1997 Or. Laws 17601762, Or. Rev. Stat. 173.315173.357 (2005). 3. David R. Kenagy, The Oregon Law Commission at Ten: Finding Vision for the Future in the Functions of the Past, 44 Willamette L. Rev. 169 (2007). 4. Or. Rev. Stat. 173.315 (2005). 5. As this is written, two of the six Senators and one of the three Representatives who have their J.D.s are candidates for election as Secretary of State or Attorney General. 6. Putting new, tougher penal or regulatory sanctions on the books stands as a legislative accomplishment, whatever their later use in practice, but civil recovery for persons injured by the penalized conduct is a different matter. When, after requesting the Commissions two-year review, the legislature enacted new standards of government ethics, it declined to determine what to do about a decision or transaction tainted by an official disqualified for any reason, though this question often is far more important to the parties or to the public than the penalty. Lawyers may find it hard to agree to clear answers when they cannot predict whether their public or private clients will seek to affirm or to invalidate a given transaction. 7. Senator Kate Brown, the Commissions long-time vice chair, chaired a lengthy and difficult work group to revise Oregons juvenile code, an overdue task that would not engage the major interest groups clamoring for the legislatures attention but resulted in a substantial list of new laws. 8. Or. Rev. Stat. 180.220 (2005). 9. Hardy Myers & Philip Schradle, The Oregon Law Commissions Judicial Review Act Project: A Reform Effort Still on the Horizon, 44 Willamette L. Rev. 275 (2007); S.B. 107, 74th Legis. Assemb., Reg. Sess. (2007); see also Or. Law Commn, Violations Legislative Summary, in Biennial Report of the Oregon Law Commission 19971999, at 2728 (1999), available at http://www.willamette.edu/wucl/pdf/olc/1999repor.pdf. 10. The statute also gives the Governor one appointment to the Commission. Since so far I have been the sole appointee (by Governors Kitzhaber and Kulongoski), I have little comment on that provision. Because it can be used to appoint someone especially interested in the law reform process, to reappoint a commissioner retiring from another slot, to represent an under-represented legal concern, or perhaps to pursue some project on a Governors reform agenda, this appointment is flexible enough to serve the Commission in a variety of ways. 11. Symeon C. Symeonides, Oregons Choice-of-Law Codification for Contract Conflicts: An Exegesis, 44 Willamette L. Rev. 205 (2007). See also James A. R. Nafziger, Oregons Project to Codify Conflicts Law Applicable to Torts, 12 Willamette J. of Intl L. & Disp. Resol. 287 (2004). 12. In recent decades, federal statutes (as well as international transactions) have become increasingly important in law practice, and attention to federal courts, their procedures, and judicial doctrines dominate teaching materials even where state law continues to apply. More young faculty members enter teaching to pursue broader theoretical interests, many with advanced liberal arts degrees, and see the road to academic recognition in addressing other scholars with the same interests (especially in the top law reviews that often count extra toward tenure, promotion, and invitations to visit) while fewer have studied, clerked, or practiced in the same state in which they teach. Depending on their specialties, they have little academic reason to care about the law of that state among many others. 13. All three law schools were invited to submit proposals for housing the Commission, and University of Oregon President David Frohnmayer, a former professor, legislator, and Oregon Attorney General, sought to bring it to Eugene, but Willamette University made the most determined effort to locate and support the Commission in Salem, in a campus building across the street from the states Capitol and convenient to Oregons main metropolitan areas. Sharing the two leadership functions would allow academic leadership to come from the most interested law faculty while keeping its executive director, staff, and offices in Salem. 14. Examples of this defensiveness were common in opposition to the bill to clarify judicial review of government actions, on the part of the representatives of the section on administrative law as well as local government lawyers. Myers & Schradle, supra note 9. 15. . . . [N]o person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided. Or. Const. art. III, 1. 16. Or.Rev.Stat. 192.610192.690 (2005). 17. Wendy J. Johnson, Samuel Sears & Daniel Rice, Oregon Government Ethics Reform, 44 Willamette L. Rev. 399 (2007). A governor may ask the Commission to take up proposed legislation in a message vetoing a bill that he considers unsatisfactory, as occurred with a partial judicial review bill, Press Release, Governor John A. Kitzhaber, Governor Announces Veto (July 21, 1995), available at http://arcweb.sos.state.or.us/governors/ Kitzhaber/web_pages/governor/press/p950721.htm, and the original government ethics reform bill, Letter from Ted Kulongoski, Oregon State Governor, to Program Committee, Oregon Law Commission (Nov. 12, 2003), available at http://www.willamette.edu/wucl/olc/groups/ govt_ethics/Letter%20from%20the%20Governor.pdf. 18. See Violations Legislation Summary, supra note 9. See also Or. Law Commn, Civil Rights Work Group Report in Biennial Report of the Oregon Law Commission 19992001, app. A (2001), available at http://www.willamette.edu/wucl/pdf/olc/2001 report.pdf. 19. In one agencys project to clean up an existing statute, Oregons Labor Commissioner declined to insert a missing time limitation on bringing suit because choosing either one or more years would trigger opposition from one of the affected interests. See Or. Law Commn, Civil Rights Statutes Report, in Biennial Report of the Oregon Law Commission 19992001, app. A (2001) (report prepared by Michael Hallinan). 20. See Minutes from Meeting of the Oregon Law Commission (Feb. 27, 2004) (Automobile Insurance Work Group proposal for re-submission to Oregon Law Commission), available at http://www.willamette.edu/wucl/pdf/olc/minutes/2004-02.pdf. 21. Not surprisingly, most historic codifications were enacted under emperors like Justinian, Napoleon (the French revolution rejected judicial law-making), and their post-Napoleonic successors in Germany and Austria, but these examples were not followed in common-law Britains empire or Commonwealth. 22. See, e.g., Or. Const. art. I. 20, Or. Const. art. IV, 23. 23. Recent government ethics legislation in fact adopted a Commission recommendation encouraging organizations of diverse public entities to draft rules for applying the statutory standards for particular functions, subject to approval by the state Government Ethics Commission. S.B. 10, 74th Or. Legis. Assemb., Reg. Sess., at 9(a)(2) (Or. 2007), 2007 Or. Laws ch. 877, available at http://www.leg.state.or.us/07reg/measpdf/sb0001.dir/sb0010.en.pdf. 24. No person arrested or confined in jail shall be treated with unnecessary rigor. Or. Const. art. I, 13. See, e.g., Bott v. DeLand, 922 P.2d 732 (Utah 1996). 25. An example of a badly drafted legislative compromise concerned the liability of liquor servers for injuries to their intoxicated patrons. Or. Rev. Stat. 471.410 (2005). See, e.g., Gattman v. Favro, 757 P.2d 402 (Or. 1988); Chartrand v. Coos Bay Tavern, 696 P.2d 513 (Or. 1985); Sager v. McClenden, 672 P.2d 697 (Or. 1983); Davis v. Billys Con-Teena, Inc., 587 P.2d 75 (Or. 1978); Comment, Review of Oregon Legislation, 16 Willamette L. Rev. 191, 192-193 (1979). In an unusual counter-example, while products liability law was evolving in a series of Oregon Supreme Court opinions, apprehensive lawyers for plaintiff and defense interests agreed on statutory enactment of section 402(a) of the American Law Institutes Restatement (Second) of Torts and the accompanying comments a-m. See Or. Rev. Stat. 30.920 (2005); Dominick Vetri, The Integration of Tort Law Reforms and Liability Insurance Ratemaking in the New Age, 66 Or. L. Rev. 277, 297-298 & n.77 (1987). These ALI formulations remain Oregon law despite the later elaboration in the Third Restatement. Restatement (Third) of Torts: Products Liability (1998). 26. Johnson v. Short, 160 P.3d 1004 (Or. App. 2007). See also Or. Rev. Stat. 31.600 (2005) (comparative fault formula). 27. In 2007, a long-time ACLU lawyer persuaded the legislature to deal with the problem of suits mooted when named public school students graduate by directing courts to adopt a formula used in federal and most state courts that Oregon courts have repeatedly rejected, without comparing the more considered solution in the Oregon Law Commissions proposed overall revision of judicial review. 2007 Or. Laws ch. 770. . A few representative illustrations are found in Carlson v. Meyers 959 P.2d 31, 38 n.3 (Or. 1998) (ballot title statutes), Hughes v. State 838 P.2d 1018, 1036 n.36 (Or. 1992) (contract remedies against state pension system), Lloyd Corp. v. Whiffen, 773 P.2d 1294, 13151316 (Or. 1989) (Carson, J., dissenting) (political solicitation on shopping center property), Emery v. State, 688 P.2d 72, 83 (Or. 1984) (Roberts, J ., dissenting) (compensation for police destruction of vehicle searched for evidence), Forman v. Clatsop County, 681 P.2d 786, 788 (Peterson, J., dissenting) (criticizing judicial review system). . A possibility worth exploring is financial support for a significant project beyond the regular budget from a foundation or similar source with no direct stake in the results. If the current legal status of the Commissions funding complicates such direct grants, perhaps they could be channeled through Willamette University or another participating law school.    FILENAME \* MERGEFORMAT WLR44-2_Linde_Final_12_17_07  DATE 12/17/2007  TIME 6:16:49 PM  PAGE 478 WILLAMETTE LAW REVIEW [44:463  FILENAME \* MERGEFORMAT WLR44-2_Linde_Final_12_17_07  DATE 12/17/2007  TIME 6:16:49 PM 2007] notes for a new generation  PAGE 477  FILENAME \* MERGEFORMAT WLR44-2_Linde_Final_12_17_07  DATE 12/17/2007  TIME 6:16:49 PM  PAGE \* MERGEFORMAT 463 V / 0 ] ^   G H ABJbijxyYZ[BC#$cdcdoѼѼѼڸѼѼѼѼhYoWhQhQH*aJhQhQNHaJhQhQaJ hQhQhQhQmHnHsH !jhQhQUmHnHsH HGVH BUb[$2!!$* gdQol gdQol gdQok gdQok gdQok gdQok-gdQ,gdQ+gdQ gdQokgdQ(gdQ'gdQ~IopTU12  wx89oprs !!!!!!!0"1"""""K#L#####0$1$$$%%&&@'A'''''l(m(h+:hQhQH*aJhQhQ6]aJ hQhQhQhQaJhQhQNHaJPm((((())*****|+}+++.,/,,,,,+-,-c-d---!.".y.z.......I/J/`/a/|////00 1 1U1W1c1d111111111122Q3R3334444m5o5p56696hQhQ>* hQhQh+:hQhQH*hQhQNHaJhQhQH*aJhQhQaJN**,a//111p599l>AACEIIHM gdQoT gdQoQ gdQoP gdQoO gdQo{gdQ gdQoƒ gdQo,gdQ gdQol-gdQ96:666x7y77788889!9/90999990:1:::C;D;9<:<<<s=t===k>l>>>*?+?@@AA!A"AaAbAAAAA4B5BBB6C7CyCzCCCCC>D?DEEEEFFGGGG-H.HkHlH3I4III@JAJJ hQhQhQhQH*aJhQhQaJhQhQNHaJVJJ;KTUUUUUU_V`VVV#W$WWW.X/XYYYYYYuZvZ*[+[[[[[[[[\\m]o]]]]]hQhQH*aJ hQhQhQhQaJhQhQNHaJVHMPPP5SUUW[`!`Tcf_hjj'l>nUr gdQo gdQo gdQo gdQo gdQo gdQo\,gdQ gdQo[ gdQoY+gdQgdQ]4_5_<_>_____`!`^`_`%a&abb7b8bvbwbbbBcCcScTcccddWdXdeeCfDfffff]g^gggXhYh^h_hhhiigihiiiii1j2jsjtjjjrksk&l'lalblllompm&n'n=n>ntnunnnnnoo hQhQhQhQH*aJhQhQNHaJhQhQaJVooopppppp>q?qqqrrTrUrss!t"titjttt(u)unuouuu9v:vqvrv}v~vAwBwxxxx]x^xxxxxy y`yayyyyytzuzzzzzA{B{{{||||~~~~~t~ hQh>h> h+:aJjh+:0J<UaJ hQhQhQhQNHaJhQhQaJLUr:vy|~~`>c#H$SΑؒۓŖėfgdQ gdQogdQ gdQot~u~'=BT"#&'_`abe~1=>?@ABPbcdefʂ˂lmՃփ鰤h>hAh>:aJhAh>6]aJhAh>aJhQh>NHaJhQh>:aJhQh>6]aJ h>aJhQh>aJ h>H*aJ hQh>hQh>NH;փ {|"#$%'5GHIkȇ͇߇&'57PQYZ޼~hQh>6NH]aJhQh>6]aJhAh>:aJhAh>6NH]aJhAh>6]aJhAh>aJhQh>:aJ h>aJhYoWh>aJ h>H*aJ hQh>hQh>NHaJhQh>aJ1 $WXkp#$%'*}~QRRSTVYõϫ쟑hQh>:aJhQh>6NH]aJhQh>6]aJhB-h>:aJhB-h>6NH]aJhB-h>6]aJhB-h>aJ h>aJ h>H*aJ hQh>hQh>aJhQh>NHaJ5uv͑Αϑё'(ʒϒגْؒےݒ~ړۓܓޓ#$.3EQ01CD]վ츤վՌhB-h>:aJhB-h>6NH]aJhQh>H*aJhQh>:aJ h>aJhB-h>6]aJhB-h>NHaJhB-h>aJ h>H*aJ hQh>hQh>aJhQh>NHaJ7]iĖŖƖȖ˖Ζϖ4578d×ėŗǗʗĘǘȘؘ֘/IJefgilo QRSUXhYoWh>6aJhQh>NHaJhQh>:aJhQh>6] h>H*aJ hQh> h>aJhQh>aJhQh>6]aJDfRǛ4 ) !PB$d&dNPP&dPgdQgd+:gdQƛǛțʛ͛#$֜ל>BCJKӝԝ 3457:ĞҞŸޟ ABMͫͫhYoWh>aJh+:h>aJhQh>6NH]aJhQh>NHaJ h>H*aJ hQh>hQh>:aJhQh>6]aJ h>aJhQh>aJ@MPQ_֡ۡբݢޢ"qrңӣ¤ä żż̝}tttthQh>NHhQh>6] h+:h>+:>0<H*Uh>hQh>NHaJhQh>H*aJ h>aJh+:h>aJ h>H*aJ hQh>hQh>6NH]aJhQh>:aJhQh>aJhQh>6]aJ- (*+-./ݨިߨ *234ҷy h>CJh>0J6;h_0JmHnHu h>0Jjh>0JUh_:CJmHnHu h>:CJjh>:CJUjhYS,U hQhYS,hYS,h+:h>NH h+:h>+:>0<H*Uh> hQh>/34ũƩ()*GHIJgdQ$a$$ !PBd.a$ !PB$d&dNP$ !l PABd.@a$ 45OPlmnouvéĩũƩǩ&'(*+ABEFHIJ˺˴ܪܛ hQhQhYS,h_CJmHnHujh>CJU h>CJh_0JmHnHu h>0Jjh>0JU h>6;h>h_:CJmHnHu h>:CJjh>:CJU7J 0 0003&PP:pU?PAP/ =!@ "@ #$@ %@ CD@D NormalOJQJ_HkHmH sH tH DA@D Default Paragraph FontViV  Table Normal :V 44 la (k(No List nOn _Journal font$d1$a$'CJOJQJ_HkHmHnHsH tH uXOX _Document $ l@@@` mH sH u4@4 Header  !4 @"4 Footer  !:)@1: Page Number OJQJkHROBR _FootNote! lhX@@d8`CJ>OAR> _FootNotePara h`hNOaN _NoterefInTextCJH*OJQJS*aJkHHOqH _NoterefInNoteCJH*OJQJkHBOABB _1StQuoteFNhh]h^hBOABB _2NdQuoteFNh]h^BOABB _3RdQuoteFNh8]h^8BOABB _4ThQuoteFNh]h^ZOZ _1StQuoteTXT$d]^`CJZOZ _2NdQuoteTXT$Hd]^H`CJZOZ _3RdQuoteTXT$d]^`CJZOZ _4ThQuoteTXT$d]^`CJNON _Toc0* $ lPJ]`a$\O\ _Toc18!$ lXPB@JX]^X`a$ZOZ _Toc25"$ lP@Jp]^`pa$TOT _Toc3/# l@P@J(]^(`ZOZ _Toc45$$ lhP@J]^`a$ZOZ _Toc55%$ lhP@J]^`a$XOX _SectionHead&$$ $d*$a$ 56;CJ$\O\_Head1-Article'$$ $d*$a$ 5;CJhOh_AuthorName1-Articles($$ $d*$a$:CJ\O\_AuthorName2-Student)$$ $*$a$:^O^_AuthorName3-BookReview*$$ $*$a$ROR _SubHead1!+$$ $ @x*$a$:ROR _SubHead2!,$$ $ @x*$a$6bOb _SubHead31-$$ $ @px*$^`pa$6bOb _SubHead41.$$ $ @px*$^`pa$6bOb _SubHead51/$$ $ @px*$^`pa$6\O\ _IndexHeading0$$ $dL*$a$5CJ&& TOC 11&!& TOC 22jOj_Contributions-Authors3$$ $ @d8*$a$CJ:O:_END4$$ $d*$a$BORB _WILLogo5$($d0a$5;NOQbN _WILVolume/Issue 6p$d ;CJ:r:  Footnote Text7CJBOB _1stLineQuoteFN 8`414 TOC 39 PF 4A4 TOC 4: PF 4Q4 TOC 5; PF @&@@ QFootnote ReferenceH*B'B QComment ReferenceCJaJHH Q Comment Text>1$7$8$H$OJQJHH Q Balloon Text?CJOJQJ^JaJ6U@6 Q Hyperlink >*B*ph4+4 +: Endnote TextA>*!> +:Endnote ReferenceH*xY B c "&V)),n-. 1IJQSnU=Wak}nJB E * 5H4ep $$& )|**JGVHBUb[ $ 2""$a'')))p-11l699;=AAHEPHH5KMMOSX!XT[^_`bb'd>fUj:nqtvvwx`yy>zcz{}#H$SΉ؊ۋŎďfRǓ4 )34šơ()*GHK'0(000+0,00-0000-0000-000-000,00,0-000-000-0000-000+000,0000,00000+000000@0@00@0@0@0@0@0@0@0@0@0@0@0@0@0@0@0@0@0@0@0@0@0@0@0@0@0@0@0@0@0@0@0@00|*@00@00@00@00@0@0@0@0@0@0@0@0@0@0@00 K +++om(96J]ot~փ]M 4JVYZ\]_`bcdefhijl*HMUrfJW[^agkIXJ %BDKVY`kmtx$(+Fcelwy ! ! !CE]F3^G#]HiQIt_]Jt]KD]L5]MTN4 VOLm]P]Q ^R̤]S<]T*^U]V$]W]X]YD^ZL0^[<]\)^]O]^\:^_$]`\]a|]bl]cs]d ^e̊]f?Tg>>>>===Ԅ=DŽ?@AB**~<<+<+<7AuAuAKK$`$`ccxfxfCuCunvyvvvv=wLw&x&xxxy)zw~w~*z̉̉=UU  ,hh,,''ittK  !"#$%&'()*+,-./0123456789:;<=>?@AB9BB*urn:schemas-microsoft-com:office:smarttagsplace9CC*urn:schemas-microsoft-com:office:smarttagsStateB22*urn:schemas-microsoft-com:office:smarttagscountry-region=++*urn:schemas-microsoft-com:office:smarttags PlaceName=***urn:schemas-microsoft-com:office:smarttags PlaceType8*urn:schemas-microsoft-com:office:smarttagsCity 8ECBBBCCBBCBCCBCBCB2CBBCBC+**B+CBBCCBCBBCCBBBCBCBBCCB22B2BCBBBC+B*BehH}((..h3j4ACECIIllvw`wxxHyJyyyyyFzbz+G+#!-ڋ܋Q tuÏ̐56eƓ03Ȗ ɚԚHK33333333333333333333333333333333333333333VVIJ"""$$`'a'''))))))o-p-1111k6l69999;;==AAAAGEHEOHPHHH4K5KMMMMOOSSXX X!XS[T[^^^`_`bbbb&d'd=f>fTjUj9n:nqqttvvvvwwwwww`yaybyeyyyyy2z5z>z?z@zAzczdzezfzzz{{{{{{}}}~#$%'HIJL $%'*STVYΉωщԉ֊׊؊يۊ݊ۋ܋ދFIdjŎƎȎˎďŏǏʏfghhilRSUXǓȓʓ͓457: "ޠߠ,./24mnġơ'*FKvHK  _>)YS,B-+:YoW#^eAQUs,@J@@UnknownGz Times New Roman5Symbol3& z Arial9TimesTen5& zaTahoma#p1q&&&}d<t}d<!4duue?2HX ?Q2RC:\Documents and Settings\wu_stu\Application Data\Microsoft\Templates\_SETUP10.dot0LAW REFORM IN OREGON: NOTES FOR A NEW GENERATIONwu_staffwu_staffOh+'0( <H h t  4LAW REFORM IN OREGON: NOTES FOR A NEW GENERATION wu_staff _SETUP10 wu_staff7Microsoft Office Word@ @pkA@(A@.A}d՜.+,0@ px  !Micron Electronics, Inc.<u 1LAW REFORM IN OREGON: NOTES FOR A NEW GENERATION Title  !"#$%&'()*+,-./0123456789:;<=>?@ABCDEFGHIJKLMNOPQRSTUVWXYZ[\]^_`abcdefghijklmopqrstuvwxyz{|}~Root Entry FA1Tablen>WordDocumentLSummaryInformation(DocumentSummaryInformation8CompObjq  FMicrosoft Office Word Document MSWordDocWord.Document.89q