Digital Commons Network^™

The Homeowners’ Illusory Safety Net: Mortgage Broker Surety Liability, Bryan Adamson

Faculty Articles

This Article exposes a critical consumer protection flaw in Washington State’s Mortgage Brokers Practices Act. While allowing aggrieved borrowers to bring claims against mortgage brokers at least up to three years from the date of injury, it requires a borrower to bring an action against the mortgage broker’s surety within one year of the injury. This Article posits that the one-year statute of limitations for actions against the mortgage surety is procedurally counterintuitive. Importantly, it also compels filing of possibly frivolous claims, and subverts all other statute of limitations provisions otherwise available to a wronged consumer. The Article explains why …

Clinical Faculty In The Legal Academy: Hiring, Promotion, And Retention , Bryan L. Adamson, Calvin Pang, Bradford Colbert, Kathy Hessler, Katherine Kruse, Robert Kuehn, Mary Helen Mcneal, David Santacroce

Faculty Articles

No abstract provided.

Don’T Blame Crawford Or Bryant: The Confrontation Clause Mess Is All Davis’S Fault, Deborah Ahrens, John Mitchell

Faculty Articles

In Michigan v. Bryant, a dying victim lying in a parking lot provided responding officers with the identity of the man who shot him. In determining whether the subsequent use of the deceased declarant’s statement at trial violated the Confrontation Clause, the Bryant Court applied the testimonial versus nontestimonial analysis established in the Court’s previous decision, Crawford v. Washington. Holding that testimonial hearsay covered statements involving past events, while nontestimonial statements were directed at an “ongoing emergency,” the Bryant Court applied a multi-factor, totality of the circumstances analysis and found that the deceased declarant’s identification had been directed …

En Paz Descanse: Remembering Keith Aoki’S Contributions Toward Latina/O Equality, Steven W. Bender

Faculty Articles

Part of the forthcoming University of Oregon Law Review tribute to the scholarship of the late Professor Keith Aoki (1955-2011), this article situates Keith’s engagement of Latina/o policy issues within his scholarly identity and legacy. Although best remembered for his renowned contributions in the fields of intellectual property, property law, and Asian American jurisprudence, Keith wrote extensively on Latina/o issues in pursuit of equality of treatment. As addressed in the article, Keith’s notable advocacy on behalf of Latinas/os includes the significance of political representation as a strategy for social change and his innovative proposals for regional formulation of immigration policy.

Gringo Alley, Steven W. Bender

Faculty Articles

As a tribute to the late Professor Keith Aoki, this piece engages an uncompleted collaboration with Professor Aoki sketching through art and words a profoundly dystopian immigration nightmare centered in the Southwestern United States. In detailing the plot and themes of the borderlands gauntlet of "Gringo Alley," the article confronts some of the disturbing recent developments in immigration policy that approach or match the horrors imagined in fictional Gringo Alley. Finally, the article draws on science fiction influence and demographic reality to suggest a frightening future for all U.S. residents -- the prospect of economic collapse in a landscape of …

Unbound By Law: Keith Aoki As Our Avatar, Steven W. Bender, Ibrahim J. Gassama

Faculty Articles

Introducing the memorial symposium in the Oregon Law Review for the late Professor Keith Aoki, who taught at Oregon from 1993 to 2006, we frame the contributions of invited scholars who address Keith’s impact on the law and legal academy through his prolific work on diverse areas of law — intellectual property, local government, critical geography, Asian American jurisprudence, immigration and critical Latina/o jurisprudence. Collectively, the pieces evidence a scholar armed with an unwavering commitment to critical analysis and social justice, while wielding a vast array of cultural and intellectual influences from his career as an artist. Given Keith’s legacy …

Preliminary Report On Race And Washington’S Criminal Justice System, Robert S. Chang

Faculty Articles

For this Report, the Research Working Group reviewed evidence on disproportionality in Washington’s criminal justice system and considered whether crime commission rates accounted for this disproportionality. They found that crime commission rates by race and ethnicity are largely unknown and perhaps unknowable, but that some researchers simply take arrest rates as good proxies for underlying commission rates for all crimes. They found that use of arrest rates likely overstates black crime commission rates for several reasons. But even if arrest rates are used as a proxy for underlying crime commission rates, the extent of racial disproportionality is not explained by …

Keith Aoki’S Theory Of Racial Microclimes, Robert S. Chang

Faculty Articles

No abstract provided.

Law Professor As Artist: Themes And Variations In Keith Aoki's Intellectual Property Scholarship, Margaret Chon

Faculty Articles

This memorial tribute to the late Keith Aoki traces the impact of his intellectual property scholarship, particularly in the area of genetic resources.

Supercolleague, Margaret Chon

Faculty Articles

This memorial tribute to the late Keith Aoki traces the impact of his overlapping activities as an artist, warrior, and mentor, particularly in the area of Asian-American jurisprudence.

The Romantic Collective Author, Margaret Chon

Faculty Articles

Although the romantic collective author is a much more elusive creature than its romantic individual counterpart, it can be discerned amidst the proliferation of expression on the Internet. This article first outlines the ways in which the romantic author effect operates through both its genius and its arbiter prongs within collaborative authorship practices in digital networks. It next turns to scientific collaboration, where this author effect is attenuated, to assess whether scientific authorship practices might contribute to a more realistic and less romantic understanding of expressive authorship practices. A subsequent case study of collaborative digital authorship by Wikipedia contributors uncovers …

Lassiter V. Department Of Social Services: Why Is It Such A Lousy Case?, Brooke D. Coleman

Faculty Articles

Every year in Professor Brooke Coleman’s 1L Civil Procedure course, she introduces the subject with a collection of due process cases. The cases force students to confront the tension between procedural efficiency and fairness right out of the gate. It sets a fantastic tone for a course that is essentially all about managing that tension. One particular case, Lassiter v. Department of Social Services, really gets students’ attention. The debate about that case is inevitably a lively one. However, every year when Professor Coleman teaches it, she finds herself rejecting the case and its approach even more. In short, …

Summary Judgment: What We Think We Know Versus What We Ought To Know, Brooke D. Coleman

Faculty Articles

The twenty-fifth anniversary of the “trilogy” of summary judgment cases provides a perfect moment to reflect on what summary judgment means to our civil justice system. However, it goes without saying that summary judgment is not one of those procedural topics that has received little attention. Indeed, it is an area of procedure that has produced heated debates, plenty of press, and volumes of law review articles. So, this is not a little-studied area that only gets discussed on these landmark occasions. This leads to the following inquiry: What more can really be written about a topic that appears to …

The Vanishing Plaintiff, Brooke D. Coleman

Faculty Articles

What if restrictive procedural rules kept cases like Bakke v. Regents of the Univ. of Cal., Monell v. Dept. of Soc. Servs., and Hopkins v. Price Waterhouse from making it past a motion to dismiss and on to the Supreme Court? A case like Bakke is well-known for its holding about the use of race in admissions policies. But imagine that Alan Bakke was never able to get his original trial court complaint past a motion to dismiss, through discovery, and on to a final, appealable judgment. While reasonable people can disagree about the merits of Bakke, it …

Centennial Reflections On The California Law Review'S Scholarship On Race: The Structure Of Civil Rights Thought, Richard Delgado

Faculty Articles

The author reviews one hundred years of the California Law Review's rich body of scholarship on race and civil rights in an effort to discern its general direction and contours. Discerning two broad paradigms--a black-white binary of race and a liberty-equality divide--he notes that the two not only have been emerging in roughly the same period but are beginning to occupy the same territory. After describing the two paradigms and explaining their origin and operation, he puts forward a prediction for what their convergence may portend for the future of civil rights thought.

Recent Writing On Law And Happiness, Richard Delgado

Faculty Articles

In the course of a review of recent books on the hedonic level of lawyers' lives, Professor Richard Delgado puts forward an explanation for the high rate of stress, anxiety, depression, and burnout among lawyers. Professor Delgado examines suggestions of leading authorities on how attorneys may achieve happiness, usually through extrinsic measures such as more vacations, exercise, or meditation. He also considers proposals on how supervisors can make legal workers more content, including more art work for the walls, windows with leafy outlooks, a basketball court, or more praise. Professor Delgado specifically criticizes the teachings of positive psychology, explaining that …

Four Reservations On Civil Rights Reasoning By Analogy: The Case Of Latinos And Other Nonblack Groups, Richard Delgado

Faculty Articles

The protection of civil rights in the United States encompasses remedies for at least five separate groups. Native Americans have suffered extermination, removal, denial of sovereignty, and destruction of culture; Latinos, conquest and the indignities of a racially discriminatory immigration system. Asian Americans suffered exclusion, wartime internment, and discriminatory labor laws. Middle Eastern people suffer from suspicion that they are terrorists. Blacks suffered slavery and Jim Crow.

Yet our system of civil rights derives, in large part, from the experience of only Blacks, and aims to redress a single, momentous harm, namely slavery and its lingering effects. This is particularly …

Powerful Buyers And Merger Enforcement, John B. Kirkwood

Faculty Articles

Although large buyers like Walmart and Tyson Foods occupy important positions in the American economy, antitrust law remains focused on the conduct of sellers. Moreover, when mergers of buyers have been challenged, the cases have been based on a single theory – that the merger would create a dominant buyer (or group of buyers) that would exploit small, powerless suppliers. Most powerful buyers, however, face suppliers with power of their own, and in such cases, the buyers exert “countervailing power,” which can also be anticompetitive. Yet buyer mergers that reduce competition through the exercise of countervailing power are not addressed …

Painting Beyond The Numbers: The Art Of Providing Access In Law School Admissions To Ensure Full Representation In The Profession, Paula Lustbader

Faculty Articles

No abstract provided.

Crimes Of Misery And Theories Of Punishment, John B. Mitchell

Faculty Articles

Increasingly, one sees the homeless on the streets, alleys, and doorways of commercial, recreational, and living spaces of our cities otherwise populated by the affluent and relatively affluent. At the same time, there has been an increase in the creation and use of so-called “public order laws,” such as forbidding sitting on sidewalks, lying down on benches, and panhandling in certain tourist areas. Together with laws already on the books forbidding public intoxication, open containers of liquor in public and urinating in public, this suite of laws provide police with a means to control the day-to-day lives of the homeless …

(Re)Forming The Jury: Detection And Disinfection Of Implicit Juror Bias, Anna Roberts

Faculty Articles

This Article investigates whether one of the most intractable problems in trial procedure can be ameliorated through the use of one of the most striking discoveries in recent social science. The intractable problem is selecting a fair jury. Current doctrine fails to address the fact that jurors harbor not only explicit, or conscious, bias, but also implicit, or unconscious, bias. The discovery is the Implicit Association Test ("IAT"), an online test that aims to reveal implicit bias.

This Article conducts the first comparison of proposals that the IAT be used to address jury bias. They fall into two groups. The …

Disparately Seeking Jurors: Disparate Impact And The (Mis)Use Of Batson, Anna Roberts

Faculty Articles

This Article, "Disparately Seeking Jurors: Disparate Impact and the (Mis)use of Batson," uncovers a stark inequality within Equal Protection jurisprudence. On the 25th Anniversary of the Supreme Court’s decision in Batson v. Kentucky, which established a three-step test for assessing claims of purposeful discrimination in jury selection, I present the first comprehensive research on the application by the lower federal courts of Batson’s disparate impact analysis. The results are striking. Whereas the test was developed to prevent the discriminatory removal of African American jurors from the trials of African Americans, the courts now use disparate impact analysis only to …

The Guardians Of Knowledge In The Modern State: Post’S Republic And The First Amendment, David M. Skover, Ronald K. L. Collins

Faculty Articles

Collins and Skover’s essay examines Yale Law School Dean Robert Post’s recent book, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State (Yale, 2012). Collins and Skover describe and examine Dean Post’s dichotomy between the realm of “democratic legitimation,” where the First Amendment should offer its strongest protections, and the realm of “democratic competence,” where the First Amendment should yield to the findings of knowledgeable experts. Questioning the theoretical premises of Dean Post’s book, they argue that a “harm principle” may better explain much of the First Amendment doctrine that Post attempts to reconcile with his …

Terrace V. Thompson And The Legacy Of Manifest Destiny, Jean Stefancic

Faculty Articles

No abstract provided.

Rule 3.8, The Jencks Act, And How The Aba Created A Conflict Between Ethics And The Law On Prosecutorial Disclosure, Kirsten Schimpff

Faculty Articles

No abstract provided.

Un-Apologizing For Context And Experience In Legal Education, John Mckay

Faculty Articles

This Essay accompanies the Fifth Annual Symposium at Creighton University School of Law addressing the rapidly changing legal profession and our not-so-rapidly changing legal education and law school pedagogy. The Symposium's focus on the changing practice of law provides an opportunity to reconsider the woefully incomplete effort by law schools to respond to the challenge of the Carnegie Report and its many preceding critics. Rather than merely pile on, however, this Essay suggests that Jesuit law schools in particular might have something to offer their colleagues-an experiential teaching style grounded in centuries old pedagogy inspired by the founder of the …

The Inquisitorial Advantage In Removal Proceedings, Won Kidane

Faculty Articles

This article takes a radically different and unique approach to improving due process in removal/deportation proceedings. It argues that the existing adversarial system of adjudication, which is incontrovertibly inefficient, expensive and unfair, is a product of cultural imaginary. It demonstrates that if the current adversarial model is measured by contemporary utilitarian standards, it is utterly counterproductive. The article then recommends the adoption of the inquisitorial model of the civilian system by converting the majority of the 951 government lawyers, who now serve as the non-citizens’ adversaries, into administrative law judges. Through a comparative analysis of the common law and civil …

A Senior Faculty Member’S Favorite Sabbatical: My Teaching Sabbatical, John B. Mitchell

Faculty Articles

Professor John Mitchell had taken several typical sabbaticals—travel and research culminating in several articles and a book—and up until the last minute, his spring 2009 sabbatical promised nothing very different. And then with a single phone call, his sabbatical book project collapsed. There was nothing else about which he was passionate at that time, and it seemed stupid to arbitrarily choose a topic and then spend the next four years writing a book he didn't care about. In the midst of scrambling desperation, the idea of a sabbatical focused not on a scholarly project, but on his primary teaching focus …

The Status Of Clinical Faculty In The Legal Academy: Report Of The Task Force On The Status Of Clinicians And The Legal Academy, Bryan Adamson

Faculty Articles

In the midst of ongoing debates within the legal academy and the American Bar Association on the need for "practice-ready" law school graduates through enhanced attention to law clinics and externships and on the status of faculty teaching in those courses, this report identifies and evaluates the most appropriate modes for clinical faculty appointments. Drawing on data collected through a survey of clinical program directors and faculty, the report analyzes the five most identifiable clinical faculty models: unitary tenure track; clinical tenure track; long-term contract; short-term contract; and clinical fellowships. It determines that, despite great strides in the growth of …

Diversity Within Racial Groups And The Constitutionality Of Race Conscious Admissions, Vinay Harpalani

Faculty Articles

This Article offers a novel doctrinal resolution of the key issues in Fisher v. Texas, the impending Supreme Court case which involves race-conscious admissions policies at the University of Texas at Austin ("UT"). The resolution proposed here addresses Justice Anthony Kennedy's concerns about race-conscious policies, but also preserves most of the Courts 2003 Grutter v. Bollinger ruling, in spite of the fact that Justice Kennedy dissented in Grutter. Substantively, the Article clarifies the key issues in Fisher (the meaning of "critical mass" and the scope of deference that courts give to universities) by focusing on a simple idea that permeates …