ࡱ> #` mbjbj D11:x8$b<~ P#P#+$v$$$<<<<<<<=hH@<-+$+$--<P#P#<}:}:}:-P#P#<}:-<}:}:}:P# UA1}:A;2<0b<}: B3 B}: B}:$'}:c)*$$$<<:^$$$b<----$  INTRODUCTION THE OREGON LAW COMMISSION: BRIDGING THE GAPS BETWEEN ISLANDS OF THE LEGAL PROFESSION Jeffrey C. Dobbins* The articles in this volume of the Willamette Law Review describe only a small number of the Oregon Law Commissions (the Commission) substantial accomplishments over the last decade. Dean David R. Kenagys article aptly summarizes, from his unique historical perspective, the history of the Commission, the difficulties it has faced, the solutions it has promoted, and the vision, both implicit and explicit, which has guided and will continue to guide the substantive work of the Commission in Oregon. The remaining articles address, in the distinct voice of their authors, some of the past and possible future topics to be addressed by the Commission. In this Introduction, I do not want to dwell on the substantive accomplishments of the Commission. Rather, I want to focus on the opportunities presented by the process of law reform that takes place under the auspices of the Oregon Law Commission, and the great potential associated with the Commissions continued role in Oregons legal community. Opportunities, it is said, arise out of difficulties. If one believes recent articles in the popular and academic press, increasing difficulties face those in the legal profession. The profession, it seems, is divided into ever more isolated groups that increasingly doubt the relevance of their work to those in other parts of the legal community. These suspicions, it seems, have increasingly focused on the role of legal academics within the profession of law. For instance, a New York Times columnist recently pointed out a substantial gap between legal academics and the courts; some judges, at least, take apparent pride in their unwillingness to citeindeed, in their forced inattention toacademic articles. In a major examination of instruction at U.S. law schools, the Carnegie Foundation recently concluded that law schools are generally doing a poor job in preparing law students to be members of the legal profession. Professor and Federal Judge Richard A. Posner, in a tribute to the late Professor Bernard Meltzer of the University of Chicago, laments a well-established gap between practitioners and law professors, and takes the opportunity to express concern about the ability of young lawyers to create and apply law in a technologically sophisticated culture. The profession generally is not immune from challenges; there are, of course, the many (arguably tired) arguments about whether the role of lawyers is a net benefit or net cost in todays society. In many ways, these concerns are not new. Similar observations have been made for decades. Nor is the effort to bridge at least some of these gaps a particularly recent innovation. Clinical programs at law schools developed in at least partial response to the perceived gap between university-based legal education and the practical training of lawyers. And law reform entities themselves have arisen from a longstanding conviction that there is not enough effective communication between the legal community and the entities that enact the positive law on which the legal community must so often focus. As evidenced by Judge Henry J. Friendlys article of more than 40 years ago (The Gap in Lawmaking), the gulf between legislature and the legal profession has long been remarked upon. No further comment is necessary here on the effort to bridge that gap through the creation of legal reform entities. Less commonly discussed in the literature, however, are the ways in which legal reform entities can help close the more subtle gaps that open between various groups in the legal profession. As the above articles suggest, there is a two cultures problem in the legal community. Legal academics, law students, judges, and practicing attorneys often communicate only through relatively formal methods that provide neither the basis for nor the opportunity to reach consensus on the best way to improve the laws governing our society. Because of their unique role in the legal process, law reform entities like the Commission can serve as a center for communication between these groups within the legal community, and bridge the gaps between the islands of the legal profession. The Commission has the potential to be a uniquely effective entity in bridging these gaps because of at least two unique characteristics. First, the Commission is Oregons only state institution requiring the participation of not only all three branches of state government, but also each of the states law schools (through their deans or appointees) and both governmental and private attorneys (in the form of the Attorney General and appointees of the Oregon State Bar). No other state entity is required to function in a manner that mandates the kind of interaction between such diverse groups within the legal profession. Second, while the Commission is a state body, it is operated and managed in partnership with an academic institution, the ʮ² College of Law. The resulting hybrid entity, made up of both public and private institutions, both academic and governmental programs, is well-suited not only to improving communication between the legislature and the legal community, but also to avoiding the worst risks presented by a law reform entity tied too closely to state government. These unique characteristics create an opportunity for the Commission to serve as a center for communication between the varied groups making up Oregons legal community. Over the last decade, the Commission began fulfilling that promise by bringing together representatives of the many different groups within Oregons legal community to cooperate on many different legal reform programs. The articles contained in this volume provide myriad examples of communications between the diversely-situated individuals who have served on the Commission and its work groups over the last decade. The Commissions work is well-suited to effectively bridge the gaps between the groups within the Oregon legal community. As Dean Kenagy points out, members of the Commissions work groups are asked to bring their expertise, but not their representative interests, to the work group table. The request serves two purposes. First, work group members who follow this rule will be dedicated to producing the best possible legal product. Second, by focusing on a common goal of law reform and abstracting their expertise from their daily work, these members are able to focus on building a consensus model for change in the law. At the same time, however, individual expertise cannot be wholly separated from individual experiences. Those from different groups within the legal community will approach problems uniquely, based on their personal profession. While working together on the Commission, these work group members will necessarily observe andhopefullylearn from the different approaches to legal interpretation and problem-solving that are unique to the different groups that make up Oregons legal profession. History demonstratesand the following articles reflectthat work group members are sophisticated and dedicated members of their profession. Most are highly experienced in utilizing legal arguments to advocate for their position (whether a position taken in favor of a client, in a piece of academic writing, or in a judicial opinion). The Commission provides these individuals with the opportunity to work cooperatively with members of other groups within the legal communityto communicate amongst themselves and, therefore, across gaps in the legal professionon the singular purpose of ensuring the best possible law is drafted for and, ultimately, enacted by, the legislature. The process of developing a consensus, even in the presence of members as diverse as those on the Commission and in its work groups, can be protracted and difficult. As the accompanying articles reflect, however, the Commission has been successful on a number of occasions in presenting consensus reports to the legislature that have, in a majority of instances, been enacted without significant amendments. While the last decade of the Commission was a successful one, there is more to be done. Faculty from Oregons law schools have been critical participants on the Commission, while many others served important roles in a variety of Commission work groups. Perhaps because of the limited funding provided by the legislature for the Commission, it has been difficult for the Commission to take on work sua sponte. Rather, the Commission has generally taken its work from projects recommended by the Legislature, by well-established law reform entities, and by particular interest groups. Academic participants should take a more active role not only in particular projects that land on the doorstep of the Commission, but in the active suggestion and development of future projects. As Roscoe Pound put it, full effectiveness for legislation is possible only in the presence of continuous competent study by qualified legal scholars in whom lawmakers and the public have confidence. The academic community in Oregon should make it its business to fulfill that charge from Pound. We cannot, of course, assume that the Commission will (or should) immediately divert its attention to problems unilaterally announced by academics. The current skepticism of academic theory is too well-ingrained, and the Commission is, of course, necessarily restrained by the resources and staff available to it. Nevertheless, an active engagement in the legal reform process by members of the states law schools will continue to build the bridges necessary to ensure an ongoing role for the legal academy and the states law schools in the eminently practical work of the Commission. Another substantial contribution to the Commission that is, perhaps, lost in the substantive discussions is the significant contribution that law students have made to the Commission. This is an area in which the Commission is likely to be able to make immediate headway by doing more to incorporate law students into its work. Whether through externships offered at ʮ² College of Law, through programs offered by Oregons other law schools, or in affiliation with a more developed legislative clinical program, law students can play an increasingly significant role in Commission work groups. Through appropriate supervision in both the substance and procedure of law reform, law student participants will be able to learn from, and contribute to, the work of the Commission. The resulting understanding of the substance of legal reform projects, the process of legislative drafting, and the operations of a state legislature will offer valuable insight to student participants that would be difficult to achieve in most other law programs in the nation. As Judge Posner has recently noted: [t]he messy work product of the judges and legislators requires a good deal of tidying up, of synthesis, analysis, restatement, and critique. These are intellectually demanding tasks, requiring vast knowledge and the ability (not only brains and knowledge and judgment, but also Sitzfleisch) to organize dispersed, fragmentary, prolix, and rebarbative materials. These are tasks that lack the theoretical breadth or ambition of scholarship in more typically academic fields. Yet they are of inestimable importance to the legal system and of greater social value than much esoteric interdisciplinary legal scholarship. One can, of course, take issue with the breeziness with which Judge Posner dismisses esoteric interdisciplinary legal scholarship. As in science, in which it is often difficult to assess the practical social value of pure science in areas like cosmology and particle physics, the value of esoteric legal scholarship may well be more substantial than is apparent at first glance. Judge Posners observation, however, highlights the value of the task set out for the Oregon Law Commission, and the importance of both academics and practitioners in that process. Through the continuing commitment of our law school faculties and students, as well as the judges and practitioners in Oregon, the Oregon Law Commission will continue its work of the past decade in order to bridge the gaps between these legal groups. As Justice Benjamin N. Cardozo once noted, the task of legal reform is never done. In light of the bridge-building potential presented by the Commission, we can only hope he was correct. * Executive Director, Oregon Law Commission, and Assistant Professor of Law, ʮ² College of Law. I would like to thank Dean Symeonides, Dean Kenagy, Hans Linde, and all the Commissioners of the Oregon Law Commission for their counsel and support as I have moved into this new position as Executive Director of the Commission. Their work has set the Commission on its current path. Also worth early mention is the work of the entire staff of the Law Commission, but in particular that of Wendy J. Johnson, Deputy Director and General Counsel of the Commission, whose tireless work on behalf of the Commission over the last half-decade has been integral to its success and whose advice and assistance will prove invaluable over its next decade.  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT Adam Liptak, When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant, N.Y. Times, Mar. 19, 2007, available at http://select.nytimes.com/ 2007/03/19/us/19bar.html (I havent opened up a law review in years, said Chief Judge Dennis G. Jacobs of the federal appeals court in New York. No one speaks of them. No one relies on them.). Liptak's column reported on a study conducted by the Cardozo Law Review tracking the incidence of citation of law review articles in judicial opinions. See Carissa Alden Et Al., Trends In Federal Judicial Citations And Law Review Articles (2007), available at http://graphics8.nytimes.com/packages/pdf/national/20070319_federal_citations.pdf (prepared for the Court of Appeals for the Second Circuits roundtable discussion).  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT William M. Sullivan Et Al., Educating Lawyers: Preparation For The Profession of Law 4 (2007) (noting that the challenge for legal education is linking the interests of legal educators with the needs of legal practitioners and with the public the profession is pledged to servein other words, fostering what can be called civic professionalism).  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT Richard A. Posner, In Memoriam: Bernard D. Meltzer (19142007), 74 U. Chi. L. Rev. 435, 435 (2007) (What has happened since the 1960sthat watershed decade in modern American historyis the growing apart, especially but not only at the elite law schools, of the lawyer and the judge on the one hand and the law professor on the other hand. Law professors used to identify primarily with the legal profession and secondarily with the university. The sequence has been reversed.); see also id. at 437 ([L]aw schools are still lagging badly in attempting to overcome the shameful aversion of most law students to statistics, math, science, and technology.).  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT See, e.g., Philip K. Howard, The Collapse Of The Common Good: How America's Lawsuit Culture Undermines Our Freedom (2001); John Stossel, Give Me A Break: How I Exposed Hucksters, Cheats, And Scam Artists And Became The Scourge Of The Liberal Media 155-78 (2004). The classic reflection on the limited value of attorneys in society is to be found, of course, in William Shakespeare, The Second Part of King Henry the Fourth act 4, sc. 2 (Dick: The first thing we do, let's kill all the lawyers.).  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT See, e.g., Alfred Zantzinger Reed, Training for the Public Profession of the Law xvii (1921) (There is a widespread impression in the public mind that the members of the legal profession have not, through their organizations, contributed either to the betterment of legal education or to the improvement of justice to that extent which society has the right to expect.); E. Gordon Gee & Donald W. Jackson, Bridging the Gap: Legal Education and Lawyer Competency, 1977 BYU L. Rev. 695, 936-37 (1977) (noting survey results indicating that attorneys generally felt poorly trained by their law school experiences).  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT See Gee & Jackson, supra note 5, at 758-59 (noting advent of clinical programs in the 1960s and 1970s).  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT See, e.g., Dominick R. Vetri, Communicating Between Planets: Law Reform for the Twenty-First Century, 34 Willamette L. Rev. 169, 177-79 (1998); Henry J. Friendly, The Gap in LawmakingJudges Who Can't and Legislators Who Won't, 63 Colum. L. Rev. 787 (1963); Roscoe Pound, A Ministry of Justice: A New Role for the Law School, 38 A.B.A. J. 637 (1952); Benjamin N. Cardozo, A Ministry of Justice, 35 Harv. L. Rev. 113, 113 (1921) (To-day courts and legislature work in separation and aloofness.).  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT See Friendly, supra note 7.  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT As the following article by Dean Kenagy (former Associate Dean, ʮ² College of Law) notes, law reform entities like the Oregon Law Commission are charged with a range of purposes intended to cure those flaws in the iterative process that moves from lawmaking, to the application of law, to the revision of laws. See 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) (noting, for instance, the desire to increase efficiency, overcome inertia, increase predictability, and decrease invisible economic burdens).  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT Harry H. Wellington, Challenges to Legal Education: The Two Cultures Phenomenon, 37 J. Legal Educ. 327, 327 (1987) (noting that during the author's time as dean at Yale, he worried about th[e] two cultures phenomenon at law schools with faculties that care less about the activities of the bar, and, perhaps, even the output of the bench; concluding that the problem is not as significant as he perceived). Cf. C.P. Snow, The Two Cultures and the Scientific Revolution (Canto ed. 1993) (reprinting Snow's classic observation of the gap between the humanities and the sciences). The fracture lines in the legal community are different, of course, from those that Snow observed dividing the humanities and the sciences. As Wellington's article suggests, however, there are parallels.  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT See Or. Rev. Stat. 173.315 (2005).  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT See Kenagy, supra note 9.  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT Oregon is not the only state that has chosen to provide its legal reform entity a home at one of its law schools. See, e.g., Ala. Code 29-8-1-5 (2006) (permitting creation of Alabama Law Institute); About the Alabama Law Institute, http://ali.state.al.us/about.html (last visited Oct. 25, 2007) (noting that the ALI is housed in the Law Center Building on the University of Alabama Campus, and was placed in Alabama's state-sponsored law school not only as a cost-efficient measure but to remove it from the political influence of the State Capitol.); Miss. Code Ann. 57-55-5 (2006) (establishing Mississippi Law Research Institute as an academic department of the University of Mississippi Law Center). Oregon appears to be unique, however, in locating the Commission at a private law school, rather than at a public school under the continuing influence of state budgets and state politics.  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT In an early article discussing the direction the Commission should take, Commissioner Dominick Vetri argued that having law school faculty involvement in the Commission would be an important part of ensuring continuity of the Commission, and separation from the political process. See Vetri, supra note 7, at 198. In a call for a law reform entity that came nearly 15 years before Vetri's article, then-Justice Hans Linde set forth several requirements for such an entity, including the need for a body demonstrating competence, non-partisanship, independence, creativity, and continuity, with the benefit of time and planning. See Hans Linde, Prelude: Law Revision in Oregon, 20 Willamette L. Rev. 211, 214, 216 (1984) (noting the success or failure of the [new entity] may well hinge on the cooperation it receives from the faculties of the state's three law schools).  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT See Kenagy, supra note 9.  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT Notably, few of the accompanying articles even mention the process leading to the recommendations by the work group and the Commission itself in the particular areas of concern. But see Hardy Meyers & Philip Schradle, The Oregon Law Commissions Judicial Review Act Project: A Reform Effort Still on the Horizon, 44 Willamette. L. Rev. 275 (2007) (noting alternative reports offered by certain members of the Judicial Review work group in 2003). The absence of such discussion highlights the degree to which the Commissions process has generally been a successful and collegial undertaking.  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT Most notably, in addition to the presence of all three law schools several deans on the Commission, the work of Dean Kenagy (ʮ² College of Law) as Executive Director, and Commissioners Dominic Vetri from the University of Oregon School of Law, Hans Linde from ʮ² College of Law (who is also the Governor's appointee), and Bernard Vail from Lewis and Clark College, Northwestern School of Law. Significant contributions have also come from many other law faculty, including Professors Sandra Hansberger, Maureen McKnight, and Richard (Dick) Slotee of Lewis and Clark College, Northwestern School of Law; Susan Gary, Leslie Harris, Maury Holland, and Merle Weiner of the University of Oregon School of Law; and Gilbert Carrasco, Kathy Graham, and James A. R. Nafziger of ʮ² College of Law.  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT Oregon Law Commn, Biennial Report of the Oregon Law Commission 2001-2003, 1 (2003), available at http://www.willamette.edu/wucl/pdf/olc/2003report.pdf. The legislature first funded the Commission in 2000. Since then, funding for the Commission has increased slowly over the years, but the Legislature has never funded more than one attorney position at the Commission. The only exception is the recent funding of an additional attorney position to complete the work of the ethics project. See Wendy J. Johnson, Samuel Sears & Daniel Rice, Oregon Government Ethics Law Reform, 44 Willamette L. Rev. 399 (2007) (referencing special funding for ethics work by the Oregon Law Commission).  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT E.g., Johnson, supra note 18 (noting source of request for ethics project).  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT Such as the National Conference of Commissioners on Uniform State Laws. Former Commissioner and current Oregon Supreme Court Justice Martha Walters was recently elected Chair of the NCCUSL.  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT E.g., Leslie Joan Harris, A New Paternity Law for the Twenty-First Century: Of Biology, Social Function, Childrens Interests, and Betrayal, 44 Willamette L. Rev. 297 (2007) (noting role of Oregon Child Support Program in prompting revisions to paternity laws).  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT Pound, supra note  NOTEREF _Ref180251963 \h 7, at 704.  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT Both Hans Linde and Dominick Vetri noted the role that law students could play in the Oregon Law Commission. See, e.g., Linde, supra note 14, at 217 (noting opportunities for students to work as research assistants or on seminar projects); Vetri, supra note 7, at 202.  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT Posner, supra note  NOTEREF _Ref180163600 3, at 437.  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT See, e.g., Victor F. Weisskopf, The Significance of Science, Sci., Apr. 14, 1972 at 138 (noting attack, by some, on "esoteric" research into basic science carried out "without regard to practical applications," but which ultimately lead to significant technological advances).  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT See Wellington, supra note 10, at 328 (noting influence of "esoteric" scholarship on attorneys, judges, and the development of the law).  ADVANCE \r18 \* MERGEFORMAT . ADVANCE \r5 \* MERGEFORMAT Cardozo, supra note  NOTEREF _Ref180251963 \h 7, at 117.    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