Law Commons^™

The Uncertain Role Of Reliance In The Enforcement Of Charitable Subscriptions, Christine Abely

Lewis & Clark Law Review

In cases where charitable promises are made and later retracted, the Restatement (Second) of Contracts provides conflicting guidance as to how a court should factor in reliance by the charity when considering whether to enforce the promised donation by way of promissory estoppel. Specifically, the text of § 90(2) within the Second Restatement provides that a charitable subscription is binding “without proof that the promise induced action or forbearance.” The adoption of this provision represented a departure from the requirement of reliance historically necessary for the enforcement of most types of promises by promissory estoppel. According to the Second Restatement, …

Don’T “Estop” Me Now: Estoppel, Government Contract Law, And Sovereign Immunity If Congress Retroactively Repeals Public Service Loan Forgiveness, Michael J. Cole

Lewis & Clark Law Review

This Article discusses whether Direct Loan borrowers can obtain recourse against the federal government using either promissory or equitable estoppel theories if Congress retroactively repeals the Public Service Loan Forgiveness (“PSLF”) program. The Article addresses various hurdles, including sovereign immunity and the Sovereign Acts Doctrine, which the borrowers would encounter at litigation. It concludes that, despite likely overcoming these hurdles, in many cases, the plaintiff-borrowers’ government contract law claims would likely still fail to win on their merits. The Article also contends that most, if not all, equitable estoppel claims would likely fail before a court. The Article then offers …

Asking Too Much: The Ninth Circuit’S Erroneous Review Of Social Security Disability Determinations, Stephen E. Smith

Lewis & Clark Law Review

Disability determinations made by the Social Security Administration’s administrative law judges are subject to judicial review by Article III courts. By statute, these courts apply the “substantial evidence” standard of review on appeal from the agency. The substantial evidence standard is a forgiving one that defers to the findings of the agency. But the Ninth Circuit Court of Appeals has modified this standard. It now reviews certain categories of SSA findings not only for substantial evidence, but for support by “clear and convincing reasons.” This heightened standard of review is facially at odds with the statutorily mandated substantial evidence standard. …

“I’D Never Let My Sister Do It”: Exploitation Within The U.S. Au Pair Program, Victoria Bejarano Hurst Muirhead

Lewis & Clark Law Review

The U.S. Au Pair Program, administered by the U.S. Department of State, is many things all at once: a cultural exchange program, a guest worker program, and an affordable childcare program. The hybrid nature of the program makes it attractive to foreign young people and U.S. host families alike. However, the hybrid nature of the program also renders au pairs susceptible to exploitation, particularly where labor rights are concerned. This Comment argues that in order to effectively mitigate the exploitation of au pairs, the Department of State must strengthen protections for au pairs and improve its oversight of the program, …

Constellating History: An Investigation Into The Supreme Court’S Treatment Of Congressional Consent Under The Compact Clause, Rohan Koosha Hiatt

Lewis & Clark Law Review

The Supreme Court cases of U.S. Steel Corp. v. Multistate Tax Commission and Wharton v. Wise, decided over 80 years apart, set forth different narratives for the evolution of the nonliteral test for consent under the Compact Clause. This Note investigates these competing historical claims in order to reconcile incompatible understandings of how the test evolved, ultimately identifying a more complex origin of the test than the one articulated in U.S. Steel. In so doing, this Note sheds light on the ability of the Court to not only bring history to light, but also to obscure it.

Trojan Zebra: Unmasking Bostock’S Potential To Undermine Lgbtq+ Protections, James E.A. Rehwaldt

Lewis & Clark Law Review

Engaging with the methodological framework endorsed by the Supreme Court’s holding and rejected by the dissents in Bostock v. Clayton County, this Comment critically examines both the limited scope and potential misuses of the Court’s decision recognizing protection against employment discrimination for gay, lesbian, and transgender individuals under Title VII of the Civil Rights Act.

Fixing America's Broken Democracy, Erwin Chemerinsky

Lewis & Clark Law Review

No abstract provided.

Making Appointment The Means Of Presidential Removal Of Officers Of The United States, David M. Driesen

Lewis & Clark Law Review

This Article examines the relationship between appointment and removal of officers of the United States, focusing on the administrations of Andrew Jackson, Andrew Johnson, Richard Nixon, and Donald Trump. These administrations’ use of appointment and removal underlines the potential tension between political removal accomplished without Senate approval of a successor and the Constitution’s goal of securing the rule of law.

To remedy these issues, this Article proposes that Congress pass a statute forbidding presidential removal of an agency head (and other Senate-approved appointees) until the President nominates a qualified successor or until the Senate confirms a successor. Integrating Appointments Clause …

Requiring Majority Winners For Congressional Elections: Harnessing Federalism To Combat Extremism, Edward B. Foley

Lewis & Clark Law Review

Congress should enact a law requiring a candidate for a seat in Congress to receive a majority of votes in order to win the election. Congress should let states determine what particular procedure to use to determine whether a candidate wins a majority, as there are significantly different methods of identifying a majority winner. While this simple piece of legislation might seem inconsequential—many Americans assume, erroneously, that elections already require majority winners—it in fact would cause states to undertake a form of experimentation in the details of electoral system design that would have the effect of counteracting the threat that …

Undue Deference To States In The 2020 Election Litigation, Joshua A. Douglas

Lewis & Clark Law Review

This Article provides the first comprehensive analysis of the numerous election law cases that the Supreme Court and the federal appellate courts decided in the lead up to the 2020 election. The picture is bleak. Instead of protecting the constitutional right to vote, the Supreme Court and lower federal appeals courts unduly deferred to state legislatures in how to run the election, with little concern for the difficulties voters faced during a pandemic. If the courts do not alter their jurisprudence, then the only solution may be robust federal legislation or a constitutional amendment that enshrines the right to vote …

Presidential Election Reform: A Current National Imperative, Mark Bohnerst, Reed Hundt, Kate E. Morrow, Aviam Soifer

Lewis & Clark Law Review

This Article suggests several important practical reforms in how we choose our President and Vice President. It first identifies problems with the Electoral College system, and proposes solutions that would not require a constitutional amendment. The Article also discusses how the long-forgotten provisions of Section 2 of the Fourteenth Amendment authorize reduction in the electoral votes from states whose legislatures deprive or abridge the right of the people to vote for their presidential electors. By exploring the history and language of Section 2, this Article demonstrates that it was ratified with the specific purpose of preventing state legislatures from usurping …

Trump’S Legacy: The Long-Term Risks To American Democracy, Michael Vitiello

Lewis & Clark Law Review

While President Trump was extreme in his contempt for legal and political norms, his presidency was consistent with the direction in which the Republican Party has moved over the past several decades. Strategies put in place by Trump and other Republicans, along with institutional aspects of our country’s “democracy,” assure the Republican Party’s continued, outsized control despite Trump’s failure to achieve a second term.

This Article reviews Trump and his Administration’s contempt for political norms, explores the Republican Party’s hard turn to the right, and discusses how the Republicans have been able to hold onto power greater than one would …

Criminal Disenfranchisement In State Constitutions: A Marker Of Exclusion, Punitiveness, And Fragile Citizenship, Nora V. Demleitner

Lewis & Clark Law Review

Many states prominently include criminal disenfranchisement provisions in their constitutions, which powerfully, and more permanently than state laws, convey the states’ values. These provisions also underscore the ease with which the protected status of citizenship, most pronounced in the right to vote, can be lost. Using the debate in Virginia over how to change the state’s constitution to limit disenfranchisement as a starting point, this Article highlights the need for inclusive voting provisions in state constitutions to reflect a broad conception of citizenship rights and the expansion of the franchise over the last century. Reform demands must be seen in …

Protecting The Sublette Antelope Migration: An Analysis Of The Evolution Of The Legal Tools Employed To Protect The Sublette Antelope Herd From Fencing Obstructions, Colin Reynolds

Lewis & Clark Law Review

A biological marvel of the natural world, each year a small herd of pronghorn antelope—called the Sublette herd—migrate over 300 miles through a mix of public and private land in Wyoming. The Sublette herd’s annual movement constitutes one of the largest remaining “big game” migrations within the continental United States. Unfortunately, this migration faces an increasing number of obstacles threatening its long-term viability; chief among them being fencing obstacles. This Comment examines the evolution of the legal tools the federal government, the state of Wyoming, and everyday citizens can use to protect the Sublette herd’s migration.

One Step Further For Protection: Why Oregon Should Adopt Additional Requirements For The Appointment Of Counsel To Youths Accused Of Crime, Ivy-Rose Kramer

Lewis & Clark Law Review

Current procedures for interrogating and investigating youths accused of crime do not provide sufficient protection for youths and their rights. Oregon should follow the example of other states that have adopted greater protections for youths—beyond what the Constitution currently requires. Specifically, Oregon should enact legislation that would provide counsel to youths who are (1) detained and being investigated based on probable cause of criminal activity; (2) undergoing custodial interrogation; and (3) in possession of property law enforcement wishes to search. This consultation with counsel should not be waivable. Such a law would counteract the harmful effects of disparate treatment and …

Front Matter

Lewis & Clark Law Review

No abstract provided.

Set Up To Fail: Youth Probation Conditions As A Driver Of Incarceration, Jyoti Nanda

Lewis & Clark Law Review

Youth probation is the most common form of punishment for youth in the United States criminal legal system, with nearly a quarter of a million youth currently under supervision. Yet the role youth probation conditions play in the incarceration of youth has not been the focus of legal scholarship. Youth probation is a court-imposed intervention where young people remain at home under the supervision of a youth probation officer and are required to adhere to probation conditions, rules, and court-ordered conditions. The orders rely on standardized terms on youth probation condition forms. This is the first scholarly Article to excavate …

Immigration Detention As A Violation Of Transgender Detainees' Substantive Due Process Rights, Emily Torstveit Ngara

Lewis & Clark Law Review

Noncitizens in immigration proceedings are often subject to civil detention pending a final decision on their case. Transgender individuals in immigration detention are at high risk for physical and sexual assault, cruel and degrading treatment, denial of necessary medical care, and protective isolation. The well-documented harms caused to transgender individuals in detention violate Fifth Amendment substantive due process. This Article documents the harms of immigration detention specific to the transgender community, reviews substantive due process jurisprudence in the civil detention context, and analogizes Eighth Amendment claims for transgender prisoners to substantive due process claims. Immigration detention is predicated on the …

Crime And Excessive Punishment: How The Courts Accelerate The Race To Recidivism, Rachel Kunjummen Paulose

Lewis & Clark Law Review

Congress wants citizens to believe that it is very tough on crime. In federal statutes, as well as in the United States Sentencing Guidelines, authorities have imposed heightened penalties on criminals whose history demonstrates violence, a propensity for aggravated conduct involving guns and drugs, or a repetitive disregard for the law.

Who is an armed career criminal? What is an aggravated felony? Who is a career offender? Congress cannot be bothered with the details, but it assures an anxious public that it will lock up all these bad guys and throw away the key. Words matter in the law. By …

The Other Hand Formula, Maytal Gilboa, Yotam Kaplan

Lewis & Clark Law Review

A defendant who obtained an undeserved benefit at the plaintiff’s expense must make restitution of that benefit. This is the fundamental maxim of the law of unjust enrichment, allowing recovery based on the defendant’s gain rather than on the plaintiff’s loss. Unfortunately, liability in unjust enrichment is notoriously unprincipled. The key problem is that scholars and courts cannot agree on the correct manner for distinguishing meritorious claims from non-meritorious ones in this important area of the law.

To correct this deficiency, the present Essay provides a simple mathematical formula explaining when plaintiffs should be able to recover the defendant’s gain …

Domsetic Terrorism: Not Actually A Crime, But Desperately In Need Of A Federal Response, Rebecca K. Tucker

Lewis & Clark Law Review

Since the founding of the United States, the U.S. Government has dealt with national security threats, both external and internal. While there are federal laws in place to protect the nation against external actors, these instruments cannot be turned directly inward to address the rising threat of domestic terrorism. This Comment explains the issues with that approach and concludes by proposing specific solutions, focusing on the need for a coordinated response from the agencies and departments tasked with the investigation, intelligence, and prevention of domestic violent extremism and terrorism.

The "Rainbow Tax": Overcoming Repayment Barriers, Hannah C. Deloach

Lewis & Clark Law Review

In 1996, the Defense of Marriage Act passed through Congress and was signed into law by President Bill Clinton. The Defense of Marriage Act effectively banned same-sex couples from receiving federal benefits that were otherwise available to heterosexual couples. In 2004, the first legal same-sex marriages were performed in the United States of America in the state of Massachusetts. These marriages allowed the now-married couples to access state tax benefits previously unavailable to them. However, because of section 3 of the Defense of Marriage Act, which defined marriage as a union between one man and one woman, those newly married …

Legal Liability For Artificially Intelligent "Robot Lawyers", Michael Loy

Lewis & Clark Law Review

This Comment discusses liability for the use of autonomous “robot lawyers” in the practice of law. A “robot lawyer” is an artificially intelligent (AI) software program that performs legal tasks traditionally handled by lawyers. Law firms currently use “non-autonomous” robot lawyers that operate under the supervision of a human attorney to assist in legal research, e-discovery, and contract drafting. In the future, “autonomous” robot lawyers that operate without human oversight may one day represent clients. However, courts and legislatures have not determined who will be liable for errors, omissions, malpractice, or other harms caused by autonomous robot lawyers. This Note …

Market Myopia's Climate Bubble, Madison Condon

Faculty Scholarship

A growing number of financial institutions, ranging from BlackRock to the Bank of England, have warned that markets may not be accurately incorporating climate change-related risks into asset prices. This Article seeks to explain how this mispricing can exist at the level of individual assets drawing from scholarship on corporate governance and the mechanisms of market (in)efficiency. Market actors: 1. Lack the fine-grained asset-level data they need in order to assess risk exposure; 2. Continue to rely on outdated means of assessing risk; 3. Have misaligned incentives resulting in climate-specific agency costs; 4. Have myopic biases exacerbated by climate change …

The Role Of Data For Ai Startup Growth, James Bessen, Stephen Michael Impink, Lydia Reichensperger, Robert Seamans

Faculty Scholarship

Artificial intelligence (“AI”)-enabled products are expected to drive economic growth. Training data are important for firms developing AI-enabled products; without training data, firms cannot develop or refine their algorithms. This is particularly the case for AI startups developing new algorithms and products. However, there is no consensus in the literature on which aspects of training data are most important. Using unique survey data of AI startups, we find that startups with access to proprietary training data are more likely to acquire venture capital funding.

War Torts, Rebecca Crootof

Law Faculty Publications

The law of armed conflict has a built-in accountability gap. Under international law, there is no individualized remedy for civilians whose property, bodies, or lives are destroyed in war. Accountability mechanisms for civilian harms are limited to unlawful acts: Individuals who willfully target civilians or otherwise commit serious violations of international humanitarian law may be prosecuted for war crimes, and states that commit internationally wrongful acts must make reparations under the law of state responsibility. But no entity is liable for lawful but unintended harmful acts—regardless of how many or how horrifically civilians are hurt.

This Article proposes developing an …

Abolishing The Evidence-Based Paradigm, Erin R. Collins

Law Faculty Publications

The belief that policies and procedures should be data-driven and “evidence-based” has become criminal law’s leading paradigm for reform. This evidence-based paradigm, which promotes quantitative data collection and empirical analysis to shape and assess reforms, has been widely embraced for its potential to cure the emotional and political pathologies that led to mass incarceration. It has influenced reforms across the criminal procedure spectrum, from predictive policing through actuarial sentencing. The paradigm’s appeal is clear: it promises an objective approach that lets data – not politics – lead the way and purports to have no agenda beyond identifying effective, efficient reforms. …

Filling Lower Court Vacancies In Congress' Lame Duck Session, Carl W. Tobias

Law Faculty Publications

In this midterm election year of 2022, the nation’s divided political parties are in a battle royale to win the exceedingly close Senate majority. One important explanation for the fight is that the party which assumes the next Senate majority will necessarily have considerable power to affect the confirmation of federal judges. For example, during Donald Trump’s presidency, Republicans controlled the Senate; therefore, the chief executive and the upper chamber proposed and confirmed fifty-four accomplished,
extremely conservative, young appeals court, and 174 district court, jurists. The Republican White House and Senate majority confirmed judges by rejecting or deemphasizing the rules …

Introduction: Family Court Review Special Issue Dynamic Pedagogy In The Family And Juvenile Law Classroom: Experiential And In-Class Exercises, Meredith Johnson Harbach

Law Faculty Publications

Over the last number of years, the legal academy has placed increasing emphasis on the need to diversify teaching methods, and in particular, has focused on expanding in-class, experiential teaching methods. Educational research confirms that learning experientially has multiple benefits for adult learners, including better retention of material, the ability to explore a more diverse range of representation contexts, the development and use of a broader range of analytical skills, and an emphasis professional collaboration and growth.1Consistent with this evolution of the scholarship on teaching and learning in law school, ABA Standard 303(a)(3) requires all students to complete“ one or …

Ukrainian Refugees, Race, And International Law's Choice Between Order And Justice, Marissa Jackson Sow

Law Faculty Publications

The resurgence of racist rhetoric and policies concerning people fleeing the war in Ukraine serves as a reminder that the ostensible goals of the 1951 Convention Relating to the Status of Refugees and 1967 Protocol are regularly eschewed by states making decisions about how to allocate grants of asylum. This Essay makes the claim that racial tiering of protection-seekers demonstrates that states use international refugee law to negotiate their national whiteness contracts and to secure racially hegemonic geopolitical ordering.