Don’t Remove that Mattress Tag!

You have to love law librarians and others who go where others fear to tread (e.g. the journalist who forced open some MP (Member of Parliament) records about their taxpayer funded expenditures).

Mary Whisner, at the Gallagher Law Library, University of Washington, has posted a link to her article about the Law Behind the Mattress Tags (101 Law Libr. J. 235 (2009)).

(The Law Library Journal archives can also be found at the American Association of Law Libraries (AALL) website.)

Good News Needed: Portland Upside (online newspaper)

Have you seen the Portland Upside newspaper yet? It’s not just “good” news; it’s interesting, fun, and inspiring news (and it's online for those who can't find a print copy). The cover story of the first issue is about a group of unemployed people who are doing productive work to keep themselves in the loop, sane, happy, and strong, physically and mentally. No “too big to fail” taxpayer bailouts for them!

Lots of other stories for those who wonder why The News can’t be more upbeat.

Have a great weekend!

Starting a Business in Oregon: Legal Research

We meet a lot of people who want to start a business but don’t know where to begin.

Entrepreneurs with great ideas don’t always have good business sense, but they can acquire it - or find business partners who have it. And even if you have good business sense, you still need to know the law.

Before you start looking for a store front (or shingle), a business name, or investing in anything (especially if it eats), read Starting a Business guides from the Oregon Corporation Division.

Other business start-up organizations and websites that are sometimes overlooked include:

1) PCC Small Business Development Center
2) Oregon Small Business Development Center
3) Oregon Entrepreneurs Network (OEN)
4) Small Business Legal Clinic
5) Small Business Administration

And don’t forget the many books on how to write Business Plans! Sample them at your public library and visit your local bookstores to buy the one that is right for you.

Public library websites, e.g. Washington County or Multnomah County, with a link to their Small Business Incubator and Business dot gov.

Can I file for punitive damages on an Oregon small claims case against a business?

This question came from a reader who came upon the Oregon Legal Research blog while doing some research.

About Oregon small claims court and damages: Judges and mediators in Oregon small claims courts have a fair amount of discretion when working with plaintiffs and defendants on resolving their disuptes. This discretion includes working with the parties to decide on what damage claims should be honored In the Interest of Justice.

Some things to keep in mind:

1) I recommend you read as much as you can about Small Claims courts in Oregon and also think about consulting an attorney who can advise you. The Oregon State Bar Referral and Information Service can refer you to a Small Claims Coach, an attorney who is familiar with small claims court practice and procedure. If you do consult an attorney, make sure you ask about the rules of “full disclosure” for attorneys assisting parties in Small Claims Court.

2) Read the research guide on Oregon Small Claims Court at the Washington County Law Library (currently on the What’s New page). It will link to books and other guides.

3) If you file in Circuit Court, do pay attention not just to the ORS but also to the Court’s SLRs (Supplementary Local Rules), which you may find at your Circuit Court’s webpage or from the OJD webpage. (These are sometimes called SupplementAL Local Rules.)

4) If you are suing a business, make sure you read and follow the rules exactly. The Oregon State Bar brochure on Small Claims Court is a good place to begin researching those. Your own Circuit or Justice Court is another source of information.

5) Last, but not least: Sit in on Small Claims Court as part of your preparation for your own hearing or trial. You will learn a lot, which will serve you well when it is your turn to present your side of the dispute.

Claymation and Legal Research

I went to the Amazing World of Claymation exhibit at the Oregon Historical Society and, of course, saw the legal research angle! Wouldn’t any law librarian?

So, you may ask, what does legal research have to do with claymation?

Quite a lot, if you want to make a business (or any money) out of the art and craft of claymation. And without business or money, most of us would never have heard of claymation, which would be very sad.

Take a look at the exhibit’s blurb about Will Vinton, including words like trademark and business, both of which scream LEGAL RESEARCH and LAWYERS! Take a look at Will Vinton’s webpage and you’ll see more LAW, from distribution rights, copyrights, corporate formation, boards of directors, takeovers, economic stresses, and more - a veritable legal treasure trove!

But, even if you don’t care about the legal aspects of all these Artistic Endeavors, you’ll still love the claymation exhibit (and the accompanying 3-D exhibit - with more LAW on the way, in 3 dimensions no doubt).

Free State and Federal Bill (Legislation) Finder Service

WisLaw blog reports on BillFinder, a free service from StateScape. Whether you’re reading, drafting, tracking, or merely surfing new legislation, it’s a powerful little tool, for no cost. Amazing.

Try it out: BillFinder

Oregon Last Will and Testament: Free, downloadable forms?

Are there free, online, downloadable, official forms you can use to write a legally enforceable Oregon will?

Sorry, but the answer is no, at least not if you want your will to do what you intend and be legally enforceable. Oregon wills, and other estate planning documents, are not Wash & Wear, Click & Go, One-Size-Fits-All, or Eat and Run.

Will-drafting cannot be done on the fly, on Twitter (though I'm sure it has been tried - and may one day soon be tried in court), or with anything other than serious thought, study, and drafting skill. This is not to say one can't draft a will oneself, or write one quickly in an emergency.

However ... read on:

• I need a form so I can write my will. Can I use one online?
• Does my will need to be notarized?
• Do I need witnesses when I sign my will?
• Does my son-in-law get my money if my daughter dies before he does?
• What happens to my estate if my partner and I die at the same time - or an hour apart?
• How do I reduce the tax bite on my estate?
• What happens to our child if my new partner or I die before the official adoption is complete?
• Is there a right, or a wrong, way to leave money to a charity? Taxes!
• I just found out my "husband" never legally divorced his first "wife." What happens to his estate, my estate, our children?
• My partner put our will in a safety deposit box, but I don't have the key.

These are questions people ask, in Oregon law libraries, on the web, and probably around dinner tables (at least around some dinner tables!).

Oregon does not have any stand-alone court-sanctioned estate planning forms packets in print or that can be downloaded, free or otherwise. Oregon legal forms are available from other sources, but you need to make sure they comply with current Oregon laws. (More about Oregon legal forms.)

Public law librarians are all in favor of self-education and research, especially about legal matters. We encourage you to read about the subject so you will know about the process, have good questions for your lawyer, and can take an active role in planning your future and your legacy.

The legal forms and will-writing books you find online and in the library are very useful for showing you what information and documentation you need to gather and think about. You can even use them for making your will. But please, especially if you have children, own property, and want to know the tax implications of your estate planning endeavors, please speak to an attorney.

Here are some self-help resources, so make a strong cup of coffee and read on!

1) Lawyers (and How to Find One): No matter what law book you read, how many statutes you study, I highly recommend you consult an attorney to review your documents and to advise you on matters specific to your exact situation. You really (really!) want to get this right. You won’t be around to correct it and you don’t want the people you love to have to spend thousands of dollars and millions of tears trying to fix what wasn’t done correctly in the first place. (More about free and low-cost legal services.)

2) You county court’s Probate Division. For example:
a) Washington County Circuit Court Probate Department
b) Clackamas County Circuit Court (not every court has a separate webpage - call them directly)
c) Links to other county’s Circuit Court websites (see left-hand sidebar for drop-down menu)

3) The Oregon State Bar (OSB) webpage has information on wills, trusts, estate law, and much more.

4) You may find useful information at the State of Oregon website on Probate Administration.

5) One source of commercially produced Oregon legal forms is Stevens-Ness Law Publishing Co., in Portland. They maintain a web site for purchasing legal forms for Oregon. (If you are filing a form with the circuit court in your county, you must check with the Clerk of the Court about any local rules and procedures that might affect you.) You can go to the Stevens-Ness web site at: http://www.stevensness.com/.

6) Nolo Press also has print and online forms: http://www.nolo.com/. They are not Oregon-specific so please read the disclaimers.

7) There are a couple of books on Oregon estate law that may be helpful, but they do not have forms. Here are two titles your local public library may own:

a) “Wills & Estate Planning: Oregon Handbook,” revised edition (2003), by Rees C. Johnson

b) “A Will is not Enough, in Oregon,” 2nd edition, 2007, by Amelia E. Pohl & Richard B. Schneider.

8) If you do plan to write your own will, you will have to read (study!) the Oregon Revised Statutes. New laws are enacted every Legislative Session so make sure you keep up with the new laws that have gone into effect by the time you sign off on that final version of your will. It sometimes also helps to put yourself in the shoes of your heirs (and personal representative):

Imagine if YOU were the one left behind: can you figure out where your important papers are, where your will is, what it says, whether or not it was properly executed?

9) Please note that all of the above sources are offered only as suggestions. If you have any lingering questions about how to proceed, and you should have some, please contact a lawyer who could advise you on legal and tax implications for your particular situation. The Oregon State Bar (OSB) maintains a toll-free help line that you can call to request the name of local attorneys who specialize in estate planning. That number is 503-684-3763 or toll-free 800-451-7636.

10) Please feel free to call or visit an Oregon County Law Library if you have further question.

And please consult an attorney!

How do we organize a constitutional government to prevent abuse of power?

This is not a rhetorical or even a political question. It is a school assignment! Hurrah for teachers, especially those who try out their own assignments before handing them over to their students (and their students’ parents).

Librarians get to help answer students' reference and research questions, public librarians more than law librarians, but we (Oregon law librarians, that is) also often have the opportunity and honor to pitch in to help students answer their law-related questions, especially when the question comes through L-net, the Oregon statewide online reference service. (Many states have one of these online reference services, in addition to email/IM reference services offered through individual libraries or library systems.)

So, how about that Abuse of Power and Constitutions assignment? It had a follow-up exercise too: “Give an example of a nation that is not a constitutional government.”

And here’s one possible law librarian-ish response (and there are others, many others):

This could be a fun assignment. You get to design your own government! It might be a good exercise for Second Life :-)

But onward to the assignment:

1) Before deciding how to prevent an abuse of power, you need to define or at least decide what you mean when you say “abuse of power.” Great minds will differ on the subject. You can use dictionaries and databases (or books) on history and government to find a definition.

You can also start by typing the phrase “define abuse of power” into Google. Make sure you look at half-a-dozen or more of the entries. There will be lots of definitions to choose from.

2) Once you have a definition, then you have to decide which particular abuses of power you want to prevent, assuming you can’t prevent them all. One can dream!

3) Once you’ve decided which abuses of power you want to prevent, then you can start looking at constitutions and what form of government you want to create.

You will probably need to look in those same history and government databases, mentioned above, but a pretty good and quick overview can be found at Wikipedia. I wouldn’t cite to it in a paper, or use it for serious research, but it’s an excellent place to get ideas. Try these:

a) Government
b) Forms of Government

There is also a Cliff Notes Drafting the Constitution

There are number of websites that link to the constitutions of different countries:
a) Constitution Finder
b) Findlaw Constitutions of the World
c) You can also search Google using this search string “constitutions world” or a variation on it.

But, you also need to find a country without a constitution, don’t you? You could try this Google search: "countries without constitutions," but that brings up mostly countries without written constitution, not countries without any constitution. But try these links at this International Constitutional Law site.

And don’t forget the incomparable CIA Factbook, which has tons of information about foreign governments, whether or not they have constitutions, and has made students' lives easier for many a decade (in print and now on the web). (See also their Kids’ Pages too.)

Let us know if these searches don’t get you what you need. We can look for other resources.

Oregon (and other State) Courts: Official Dictionary

The Oregon Judicial Department’s (OJD) 2002 Style Manual specifies the Webster’s Third International New International Dictionary (unabridged ed. 2002) as the court’s “official” (non-legal) dictionary. (Many, possibly all, state appellate courts specify an official dictionary.)

If you do a little research, however, you will find that the 2002 print edition of this dictionary is the same as the 1993 edition, page for page, with the addition of an updated addendum.

You will also find that this dictionary is online, but at a cost - and part of a whole family of the publisher's dictionaries. If you work for the State of Oregon, you may have access to the online version as part of the state’s subscription plan, which many State employees can use. Your public library may also subscribe to it.

Many public libraries, however, rely on other online subscription dictionaries or on the free online ones, but they may have this "official" court dictionary in print so give them a call if you need an "official" definition for an appellate court brief or other Oregon court document.

NOTES from conversation among law librarians about Webster's Third: "… spoke with … an editor with Merriam-Webster in Springfield, MA. … The current edition (third) of the Webster's Third New International Dictionary was originally published in 1961; as a way to add new words or definitions, the editors created an Addenda Section" in 1966. Since that time, a number of printings (= copyright date) have been issued: 1971, 1976, 1981, 1986, 1993 and, most recently, 2002. With each of these printings, the Addenda Section was expanded, but the "substantive" section of the dictionary, beginning with the letter "a" and ending with "zyzzogeton" has remained unchanged.

If you look at [your] copy of Webster's, you'll note the Addenda appears at the beginning of the dictionary in a separately paginated section. The Addenda in the 1993 printing runs from page 55a to page 120a; … the Addenda in the 2002 printing runs to page 144a. In both the 1993 and 2002 printings, the definitions begin on page 1 (again, beginning with "a") and have not been revised since 1961.

… one could purchase a 2002 copyright of Webster's Third New International Dictionary for XXXX, and while the Addenda section in this dictionary would be more voluminous than that in the 1993 printing, the definitions on page 1 would be the same and the pagination would be the same as in the 1993 volume. The only other difference would be the copyright date. … This type of "problem" for those citing definitions would be the reason the “Chicago Manual of Style” suggests the "facts of publication are often omitted, but the edition (if not the first) must be specified. References to an alphabetically arranged work cite the item (not the volume or page number) preceded by s.v."

Worldcat’s "Copyright Evidence Registry"

Determining Copyright Status is not unlike the search for the Holy Grail. Here is an updated list of resources:

1) WorldCat’s Copyright Evidence Registry

2) See also, from LLRX: “Can Collaboration Solve Copyright Status Questions? The WorldCat Copyright Evidence Registry,” by Roger V. Skalbeck, May 12, 2009

3) In addition to the links provided in the article, visit Library Law for their copyright law posts.

4) Always, always, start with the U.S. Copyright Office

5) Peter Hirtle’s Copyright Chart

6) Stanford University’s Copyright and Fair Use website

Duck, Duck, Go dot com, Oregon Authors, and Oregon Maladies - All Online

I attended an L-net (Oregon Library Network) meeting last week and in addition to catching up with other “virtual reference” librarians, I learned about these:

1) The search engine Duck duck go dot com is useful for adults too, and not just because there is no advertising. Try it out with this search: legislative history, but try others as well, including Oregon (and then drill down). Interesting ….

2) Oregon Authors dot org is a good website, especially for writers in Oregon-land!


3) Oregon Health Go Local is in the Medline Plus family.

Six Words, “Seventeen” Syllables, Baseball in 150 Words … Legal Reference in Under 141 Characters?

We have haiku and we have six-word stories - and we have Baseball in under 150 Words (and don't forget Rafe Esquith’s beautiful 132-word description), so why should we all be wailing about 140 character Tweets? (And, here (from Future Lawyer) is one reason to know how to Twitter. No one is forcing you, but it might be a very good thing to know, not unlike knowing how to drive a car with a manual transmission.)

I'm wondering, though ... can I respond to a legal research question in fewer than 141 characters - and have the question answered satisfactorily, if incompletely?

It does depend on the question and on the glibness of the response too, I suppose. The classic example is the response to the Question: How Does One Get to Carnegie Hall? Answer: Practice, practice, practice. (Elephant jokes also have wonderfully pithy responses.)

But what about responding to these questions?

Oregon Attorney General and Legislative Leaders: A Cheap and Easy Challenge

“Oregon AG Public Records and Meetings Manual” and Superseded ORSs

My Oregon public law librarian “Please, sir, I want some more” Wish List is not long:

1) Superseded Oregon Revised Statutes (ORS). Is there a reason why the Legislature cannot put the superseded ORSs on the Legislature’s Bills and Laws website? Do they know how important superseded statutes, laws, and calendars are to lawyers (and to their clients)? They (superseded ORSs) are priceless! Ask any lawyer, especially after Gaines.

2) Oregon Attorney General’s Public Records and Meetings Manual. There is also no reason in the world (is there?) why the Oregon AG’s Public Records and Meetings Manual is not online at the DOJ website, IN FULL. It is online in part (a very small part), but not the entire manual. Yes, maybe many of us do still want the hard copy, but it should also be online IN FULL. Is there any Oregon government document more important and useful than this one for the average person?

That is my short Wish List.

The Greenest of Green People Donate Their Organs

Reduce, Reuse, Recycle … your body.

Margie Boule’s May 12th, 2009, column in the Oregonian reminded me that donating organs is about as Green as a Green Person can get (though maybe not this Green Person).

When it comes to organ donation, they're passionate about their lives' work, by Margie Boule, The Oregonian, May 12, 2009

For more about organ donation:

1) Pacific Northwest Transplant Bank

2) Donate Life Northwest

3) Oregon DMV

Where is the 2009 ORS? Hold Your Oregon Horses ....

This is the time of year when we start getting questions from people wanting the 2009 Oregon statutes or laws.

This is also the time of year when we explain:

1) The 2009 Oregon Legislature is still in session and unless there is a serious emergency requiring immediate legislative action, no 2009 Oregon legislation will have an effective date (click on Other Information) before July 1, 2009 and likely not before January 1, 2010:

"Effective Date of Legislation: In accordance with ORS 171.022, "Except as otherwise provided in the Act, an Act of the Legislative Assembly takes effect on January 1 of the year after passage of the Act."

2) 2008 Oregon Laws: You can read in print and online the Oregon Laws through the 2008 Special Session.

3) Oregon Revised Statutes (ORS): The Oregon Laws have been codified through 2007 and you can read them in print and online.

4) The 2009 ORS (i.e. the codification of the 2009 Oregon Laws) will not appear online or in print much before February 2010.

Previous Oregon Legal Research blog posts on Oregon law making: here and here and here.

Oregon Consumer Law 2009 Legislation: Lemon Laws and Auto Repair Shops

If you want or need to track Oregon consumer law legislation, here are two recent bills that may be of interest. And, here is the press release: Senate votes to strengthen Oregon’s Lemon Law, another tool for tracking legislation (and part of a law’s legislative history, though who knows if copies of the press releases are always put in the bill files).

SB 515 (html or PDF): “Changes period in which remedy is available to consumer for motor vehicle that does not conform to manufacturer's warranty.”

HB 2268 (html or PDF): “Requires vehicle repair shop to prepare estimate of work that vehicle repair shop proposes to perform on motor vehicle before beginning work. Specifies contents of estimate. Requires vehicle repair shop to obtain separate, specific authorization for certain types of work if work is estimated to cost motor vehicle owner or owner's designee more than $200.”

My previous posts about tracking legislation, here and here and here.

Social Media Policies - and a $70,000 Multnomah County Job

“Social director” used to be viewed as a job for the boss’s wife or a job for paid “social butterfly.” but the 21st century “social media” director has education, imagination, writing skills, and respect. The life of a PIO will never be the same again.

Multnomah County has opened up a job for a “Chair's Office Communication Director/Multnomah County Social Media Coordinator.” It closes on 5/20/09, so don’t dawdle.

“Do you tweet and use Facebook? Are you experienced with building social communities? Can you crank out news releases, editorials, and web content on tight deadlines? Have you been a one-person video crew? Are you a stickler for grammar and punctuation? Do you know your way around web tools, web development and search engine optimization?

Multnomah County is seeking a motivated and experienced communicator, with a passion for writing, blogging, and social media in a fast-paced environment. The successful candidate will have PR and media experience, the ability to jump between creative and analytical skills, solid verbal and written communication expertise, and a marketing perspective. If you think strategically and are skilled at 21st century media technology, this might be the position for you….“ (for full job post, until job ad is pulled)

A recent post on social media policies, Should Your Company have a Social Media Policy?, has opened up the discussion of this subject beyond the desultory, “why don’t we have a policy” questions.

This is not a new subject of discussion, but it seems that management is a little behind the social media, the interactive web, curve - and maybe even very far behind their employees so the policy makers havea lot of catching up to do. Waiting until problems arise before taking action is nothing new, and is quite human despite the fact we could, with a little foresight and planning, do otherwise.

You can Google the words social media policies for a start, but there is more from your professional associations and colleagues.

(See my pevious blog post on public sector blogging and links to the policies at the Multnomah County Library).

Oregon’s Smokefree Workplace Law, What happens when people violate the smoking ban?

The questions about complying with Oregon’s Smokefree Workplace Law (2007 SB 571, 2007 Laws Chap. 602) are thick on the ground, or in the air.

As is true with a lot of new laws, no one is completely sure how this law will all play out in real life. A lot of planning went into its drafting, and now that it has gone into effect, people are still asking those “what if” questions.

If you have a question about the Smokefree Workplace Law:

1) Read the law. You may already have found the website links to the Oregon Smokefree Workplace website, which has the text of the statute and explanatory information. (See link above for the text of the bill and the session law.)

2) Call or email the Smokefree Workplace agency staff. This may be particularly helpful if you have a specific question and don’t find an answer on their website.

3) Read the news stories, and there were many, especially just before the law went into effect (you can Google Oregon Clean Air Act) and now that everyone is trying to comply (or not) there are even more stories.

4) Call you state legislator; they were the ones who wrote this law. They like hearing from people with questions about Oregon state laws. Find your legislators.


Keywords: smoking bans, smoke-free, smoke free, clean air

Positive Law, Codification, and Peanuts (i.e. Linus)

KCLL Klues posted this Positive Law and other U.S. Code Mysteries a little while ago and it reminded me that some of my own readers are new to legal research and also curious about such things. What IS positive law anyway?

No, positive law isn’t law in your favor, but that's not a bad guess. Nor is it law that says, "yup, it's yours, all yours, and you can do what you want as long as you don't scare the horses," rather than those pesky "thou shalt NOT" laws. It's also not the opposite of negative law!

(Just as "legal" isn't really the opposite of "illegal" though we've come to accept it that way. It's all legal on this legal research blog, and it's all lawful too, but not all legal blogs behave lawfully.)

Positive law is a concept that law librarians teach law students and paralegals, and an important one at that, but we have a hard time explaining it to the novice, especially online.

It's one of those legal concepts that is far easier to explain by showing, not telling, especially if one can do so in 4-dimensions (time is an important dimension to take into account when teaching the legislative process). With shelves of books that include bills, session law, and codes, it's easy to show what positive law is. Of course, sweeping gestures work well in a library, but not nearly so well sitting at a computer screen, where all you'll manage to do is to sweep that coffee mug off your desk.

You can find definitions of positive law in Wikipedia and Answers dot com, but you need to know the context of your question or see it applied to understand it truly.

The tougher questions students of the law ask about positive law are more along the lines of, "who cares?" or "why does it matter?"

If you are researching U.S. federal law, you probably should know which titles in the U.S. Code are positive law and which ones aren't (and you should also know what a code is versus what session law is), but for all practical purposes, it won’t kill you, or your case, if you don’t know what positive law is.

Many lawyers live successful legal lives not knowing, let alone remembering, what their law school librarians told them about positive law. I always reminded my students that while I personally didn’t care if they knew, their future clients might care and even be a bit concerned if opposing counsel knew - and that one day it really may matter. If it was your client, or your lawyer, wouldn’t you want to be on the winning side of that one?

As Linus once remarked back in 1962, “Until it is demonstrated, one forgets the really great difference that exists between the merely competent amateur and the very expert professional.”

I’ve blogged about codification many times before, though primarily in the context of the Oregon Revised Statutes (ORS).

From “Legisprudence” to “I Have to Move My Car”

I like looking at new law book catalogs, especially those with the scholarly books I don’t get to see or read much anymore. Some people dream of bigger houses, faster cars, expensive jewelry, extensive travel. I am one of that other group who dream of more time to walk, read, sleep, perchance to eat -- in a nutshell, I dream of a little more leisure time (who doesn't!). (For those of you still laboring under such a delusion, no, librarians do not get to read much on the job.)

I saw these titles in the Hart Publishing catalogue; they will serve a reminder that titles are as important as the literature they cover (as in, you can tell a book (and a comic book) by its cover).

My favorite: “I Have to Move My Car: Tales of Unpersuasive Advocates and Injudicious Judges” by David Pannick, QC. From the publisher’s blurb:

“There are law books about constructive trusts, the Perpetuities and Accumulations Act 1964 and the rule in Foss v Harbottle. This is not one of them. David Pannick QC has always been much more interested in unpersuasive advocates and injudicious judges. In this collection of his fortnightly columns from The Times, David Pannick passes judgement on advocates who tell judges that their closing submissions to the jury will not take long because 'I would like to move my car before 5 o'clock …'”

Others from Hart:

1) “Mistakes in Contract Law”
2) “Legisprudence” (doesn’t have quite the same winking-ring of jurisprurience, but an interesting journal in its own right)
3) “The Change of Position Defence”
4) “Nuclear Law” (this could cover a lot of ground, but it really is about nuclear energy)
5) “Evidence of Bad Character” (who among us couldn’t have written this - it sounds as if it could be interesting commentary on evidence for the criminal bar- and I like the sound of this testimonial: a “valuable little book” - what book couldn’t be improved by hard editing!)
6) “The Bond: an educational novel” (we may have more than enough of these, but then again, can one really have too many novelists?)

Oregon Legislative History: From PGE to Gaines

For a lesson on how Oregon has heretofore interpreted legislative history (and intent) - and how they will do so henceforth:

Oregon v. Gaines (SC S055031), April 30, 2009

“…The question presented -- i.e., whether defendant's conduct, as described, constituted a "means of * * * physical * * * interference or obstacle" within the meaning of ORS 162.235(1) -- poses an issue of statutory interpretation. The methodology that Oregon courts follow in interpreting statutes is a distillation of settled interpretative principles, some of which have been codified in Oregon statutes since early statehood and others of which have been articulated in this court's case law for many years. Mastriano v. Board of Parole, 342 Or 684, 691, 159 P3d 1151 (2007). The methodology, as outlined in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), entails three sequential levels of analysis to determine the legislature's intent. First, the court examines the text and context of the statute. Id. at 610-11. If the legislature's intent is obvious from that first level of analysis, "further inquiry is unnecessary." Id. at 611. "If, but only if," the legislature's intent is not obvious from the text and context inquiry, "the court will then move to the second level, which is to consider legislative history[.]" Id. at 611.(2) If the legislature's intent remains unclear after examining legislative history, "the court may resort to general maxims of statutory construction to aid in resolving the remaining uncertainty." Id. at 612.

…. We therefore conclude that, in light of the 2001 amendments to ORS 174.020, the appropriate methodology for interpreting a statute is as follows…." (read full case).

Oregon Constitutional Convention? Two Opinions

The Oregon State Bar (OSB) May 2009 Bulletin poses the question: “An Oregon Constitutional Convention?”

James Westwood weighs in, YES, we do need a new constitution:

Excerpt: “The Oregon Constitution hardly deserves the name, and not just because it is fouled by scores of items and thousands of words that belong in a statute book, if anywhere. The Oregon Constitution describes a structure of government that proves the Massachusetts Federalists got it right and the Oregon Jacksonians didn’t. The dysfunctional government our narrow founders gave us in 1857 was “cured” a century ago by an even less functional overlay — the popular initiative — that empowers the unthinking and gives political rule to the unaccountable. Oregon deserves better than that....” (read full article)

Charles Hinkle weighs in, NO, we don’t need a new constitution:
Excerpt: “Every now and then someone suggests that Oregon needs a new constitution. In the early 1950s, several legislators concluded that the 1857 constitution was out of date and too long. They argued that several of its sections belonged in the statute books, not in a constitution. In 1959, the legislature referred the question to the voters: Shall a new constitution be drafted? Voters at the 1960 general election approved the proposal, and a 17-member commission was appointed, including many of the leading political, business, legal and academic figures of the day….” (read full article)

Previous post on the Oregon Constitutional Convention (and 2009 HB A 2009 HB 2620) -- (and here too).

Related topic: Oregon Ballot Measure Archive Project, about which I will blog again in the not to distant future.

Oregon Renters / Tenants in Foreclosed Housing: 2009 SB 952

Today’s Oregonian has an editorial by Oregon Senator Bonamici and Portland City Commissioner Nick Fish about Senate Bill: 2009 SB 952 (A-Engrossed) in PDF or HTML:

Excerpt from the editorial: Renters, too, can face the hit of foreclosure:

“Losing a home to foreclosure can be devastating. Typically, homeowners come to mind when we think of foreclosure. But the fact is, many foreclosed properties are places that renters call home, too....
...
The Oregon Legislature is working on Senate Bill 952 to protect tenants whose homes are in danger of foreclosure. This bill would require that in addition to the property owner, tenants be provided with foreclosure notice. Tenants without a lease would receive 30 days notice. Tenants with a lease would receive up to 60 days notice. SB 952 also protects tenants' security deposits, requiring that landlords in foreclosure apply the deposit toward rent. The bill gives tenants time to look for a new home and save money for expenses....” (read full editorial)

2009 SB 952 (A-Engrossed) in PDF or HTML:

Excerpt: "Requires purchaser of foreclosed property to give additional notice to tenants living on property when purchaser intends to take possession of property. Creates different notice procedures for different types of tenancy. Modifies information to be included in notice. Creates other procedures related to taking possession of property.Allows tenant who receives actual notice of foreclosure to apply security deposit or prepaid rent to pay rent obligation…." (read full bill)

What is an engrossed bill? See the Oregon Legislature's Glossary and find these definitions, among others:

Engrossed bill: A measure that is printed with its amendments included. Such a bill will have "A (or B or C, etc.) Engrossed" printed at the top, which is a signal to legislators before a vote that the bill before them has changed from its original version.

Enrolled bill: A final copy of a bill which has passed both houses of the Legislature and has been specially reprinted in preparation for the signatures of the President of the Senate and the Speaker of the House. After these confirmatory signatures, the enrolled bill goes to the Governor.

Oregon Federal Public Defender Wins ABA 2009 Silver Gavel Award

Steve Wax, Oregon’s Chief Federal Public Defender has won the 2009 American Bar Association (ABA) Silver Gavel Award for his book, “Kafka Comes to America: Fighting for Justice in the War on Terror.”

Publisher Confidential: What Librarians Want Publishers to Know

I like this: Publisher Confidential. Writers might find it useful too.

It’s from the creators of Unshelved, who have been talking, and listening, to public librarians for a long time. You can download Publisher Confidential (PDF), free!

Law librarians could probably add a few more pages, but we’re not as restrained as the public librarians featured in Publisher Confidential. Maybe we’ve just been pushed a bit too much and too hard in the past couple of decades and are may be approaching “Fleeting Expletives” territory.

That is to say: U.S. Supreme Court: FCC v. Fox Television Stations, Inc. (No. 07-582), decided: 4/28/09:

“Federal law bans the broadcasting of "any ... indecent ... language," 18 U. S. C. §1464, which includes references to sexual or excretory activity or organs, see FCC v. Pacifica Foundation, 438 U. S. 726. Having first defined the prohibited speech in 1975, the Federal Communications Commission (FCC) took a cautious, but gradually expanding, approach to enforcing the statutory prohibition. In 2004, the FCC's Golden Globes Order declared for the first time that an expletive (nonliteral) use of the F-Word or the S-Word could be actionably indecent, even when the word is used only once.

This case concerns isolated utterances of the F- and S-Words during two live broadcasts aired by Fox Television Stations, Inc. In its order upholding the indecency findings, the FCC, inter alia, stated that the Golden Globes Order eliminated any doubt that fleeting expletives could be actionable; declared that under the new policy, a lack of repetition weighs against a finding of indecency, but is not a safe harbor; and held that both broadcasts met the new test because one involved a literal description of excrement and both invoked the F-Word. The order did not impose sanctions for either broadcast. The Second Circuit set aside the agency action, declining to address the constitutionality of the FCC's action but finding the FCC's reasoning inadequate under the Administrative Procedure Act (APA).

Held: The judgment is reversed, and the case is remanded. 489 F. 3d 444, reversed and remanded.”

Criminal Justice in Oregon: Enhanced Probation Probation

Re: Oregon 2009 HB 3264

Oregon looks at tougher probation for lesser crimes, by Maxine Bernstein, The Oregonian, Sunday May 03, 2009:

Excerpts: ‘Gov. Ted Kulongoski wants to use $13.5 million of Oregon's federal stimulus dollars to create an enhanced probation program for repeat property and drug offenders who might otherwise face prison under Measure 57.

The program would be modeled after the nationally recognized HOPE program in Hawaii, in which high-risk offenders go before a judge for every probation violation and are sanctioned to short jail stays to try to keep them on track.

Hawaii Judge Steven S. Alm created the program 4 1/2 years ago after he was repeatedly asked to revoke offenders' probation for failing numerous drug tests, missing probation appointments, or refusing or failing to attend treatment. Typically, he said, a probation officer would recommend the offender be sentenced to several years in prison.

"I thought, 'This is crazy. This is not any way to change behavior,'" Alm said, testifying recently before a joint session of the Oregon House and Senate Judiciary committees....
…
Oregon's Criminal Justice Commission, which advises the governor, recommended that Oregon adopt a similar model. Craig Prins, the commission's executive director, says the goal is to offer high-risk property offenders a "last chance to succeed" in the community while allowing the state to preserve prison beds for violent offenders….
…
Crime Victims United lobbied for a HOPE-type program before the governor's plan was drafted. The group is pushing House Bill 3264, which would establish a pilot program in Multnomah, Marion or Lane county.

"If we had this kind of program in Oregon going back five or six years, there's a chance we might not have had Measure 57 at all," said Howard Rodstein of Crime Victims United. "We might have had a criminal justice system that had more credibility with offenders and the general public." …’ (link to full article)

Read Oregon 2009 HB 3264, PDF or HTML.

More about the Oregon hearing, including testimony transcripts, Oregon's HOPE Program Hearing, April 10, 2009, from Crime Victims United. And, more about the Hawaii HOPE program and a Pew Center 2008 research study of the program.

ORS 153.058: Citizen Initiated Citations in Oregon

For those of you tracking citizen’s arrest cases:

Oregonian article: Parking-law bulldog drops a case: Citizen citations - Attorney Eric Bryant ticketed officers in prohibited zones, May 02, 2009, Aimee Green:

Excerpt: “An attorney who sparked a widespread debate about whether police officers who aren't responding to emergencies need to follow parking laws has dropped his latest fight.

Eric Bryant, who wrote three citizen-initiated citations last year, asked a judge to dismiss the latest ticket against Portland police Officer Chadd Stensgaard for parking next to Central Precinct in a space marked "Government Vehicles Prohibited." Bryant said he has moved to southern Oregon because he tentatively has been offered a job as a deputy prosecutor.

The case against Stensgaard had been scheduled to go to trial this week. Bryant said he took flak from some in the public who thought he was picking on police. But Bryant said he hopes more citizens use the little-known law, Oregon Revised Statute 153.058, to fight wrongs they see, such as drivers who speed through neighborhoods.…” (read full article)

ORS 153.058 Initiation of violation proceeding by private party reads in part (and see also ORS 153.048): “(1) A person other than an enforcement officer may commence a violation proceeding by filing a complaint with a court that has jurisdiction over the alleged violation. The filing of the complaint is subject to ORS 153.048. The complaint shall be entered by the court in the court record.
(2) A complaint under this section must contain …. "(read full statutes)

Previously blogged about September 3, 2008.

Justice Bedworth Reaches a Certain Age with Definite Misgivings

Justice Bedsworth, of the California Court of Appeals, returns with his, not to be missed, column in the Orange County Lawyer Magazine:

“It’s Alright Ma (I’m Only Bleeding): ‘After 28 years of filling this space, Beds suddenly notices he’s aging,’ by Justice William W. Bedsworth:

I have gone gently into the good night of geezerhood. I’m not sure exactly when it happened. At some point, apparently while my attention was diverted, I went from being “The Kid”(1) to being “Acting PJ.” That’s like going to bed Warren Zevon and waking up The Werewolf of London.

It’s not like the age thing snuck up on me. Two years ago, my birthday breakfast was served under a banner my wife had hung in the kitchen: 59, Gateway to the Wild Embellishment Years….” (read full essay)

Previous Bedsworth tales of woe and law can be found at May it Please the Court.

Love the One You're [Working] With: Solo Practice of Law

I really like this post at MyShingle about how you sometimes can’t know what you are capable of, or what you will like or not like, until you find yourself having to do it. It seems to go without saying, but it doesn’t! We know this is true of food (just taste it, please), sports (just play a little), avocations (mustard of the month, anyone?), but it is also true of work.

Excerpt: “… In my own case, when I started my firm I was a recluse. I never ate lunch with co-workers, preferring the privacy of my closed office. I chafed at the thought of company picnics and social activities where I'd be consigned to idle chit-chat and would never have taken the initiative to call someone up and invite them to lunch. Frequently, I'd grow bored with work and have trouble following through and I was careless with my proofing.

Yet something about starting a firm changed me. Instead of running from company or dreading social or networking activities, I embrace them. I take pride in my work and serving clients in a way that I never felt when I worked for others. I am a completely different person and lawyer (not to mention generally, a far happier one) than the one who reluctantly started a law firm 15 years ago for want of anything better. And it's solo practice that changed me, not the other way around….” (read full post at MyShingle)