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LAW REFORM IN OREGON: NOTES FOR A NEW
GENERATION
HANS A. LINDE*
In a Prologue to this journal’s 1983 review of new Oregon legislation, I observed that typically none of the three branches of government takes ongoing responsibility for the quality of the laws governing everyday private actions and disputes, and I welcomed the thenrecent change of the legislative Law Improvement Committee into an
incipient state law commission.1 It took only fourteen years before a
suggestion by Professor Dom Vetri to a student interning in the Senate President’s office, coupled with the enthusiasm and political skills
of then Dean David Kenagy of Willamette University’s College of
Law, brought this dormant seed to fruition in 1997.2 During its first
decade, the Oregon Law Commission has benefited from an essential
continuity of leadership, exemplified by its chair, Representative Lane
Shetterly, who was reappointed to the Commission and remained its
chair after leaving the legislature, Attorney General Hardy Myers,
serving as chair of the program committee, and David Kenagy, who
became the first Executive Director. Willamette’s Dean Symeon
Symeonides, who joined the faculty in 1999, brought invaluable experience as a member of the Louisiana State Law Institute as well as
with the uses of enacted rather than decisional law.
The following reflections are little more than notes on David
Kenagy’s article on the history of the first decade. 3 What have we
* Professor Hans A. Linde is a Distinguished Scholar in Residence at Willamette University’s College of Law. He served on the Oregon Supreme Court from 1977–1990 and has
served on the Oregon Law Commission since 1997, when it was first created.
1. Hans A. Linde, Law Revision in Oregon, 20 WILLAMETTE L. REV. 211 (1984). The
Law Improvement Committee, partly on the suggestion of Chief Justice Arno Denecke, differed from earlier legislative interim committees in including the Attorney General and the
deans of Oregon’s three law schools and in authorizing its staff attorney to solicit and report
potential subjects for law reform. Id. at 216 & n.6.
An earlier version of a law commission was proposed in the new constitution drafted by the
1961-1962 Commission on Constitutional Revision, reprinted in 67 Or. L. Rev. 195 (1988).
2. 1997 Or. Laws 1760–1762, OR. REV. STAT. §§ 173.315–173.357 (2005).
3. David R. Kenagy, The Oregon Law Commission at Ten: Finding Vision for the Future
463
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learned (or confirmed), and what needs continual attention? How may
the commission make new contributions to Oregon law?
A. THE INSTITUTION
1. Structure
The Oregon Law Commission by statute has thirteen members,
including four selected by the legislature and one by the Governor,
the Chief Justice, the Attorney General, the deans of Oregon’s three
law schools or their representatives, and three appointed by the Oregon State Bar.4 This combination of legislators, judges, academics,
and practicing lawyers has proved basically sound. Much, of course,
depends on who is selected to serve on the Commission and how
much continuous time and effort they choose to give it. This, in turn,
reflects the Commission’s functions. Much also depends on unpredictable changes in the state’s politics.
a. Legislators
Years ago Oregon’s biennial legislative assembly included a
substantial contingent of lawyers from towns throughout the state, but
with longer legislative sessions, frequent special sessions, and stagnant legislative salaries, these numbers shrank. Lawyer legislators
have limited their service to a few sessions or have moved on to fulltime state-wide offices.5
Moreover, because their constituents see law primarily as concerned with crimes, sentencing, law enforcement, and prisons, senior
members of the judiciary committees often choose those high-profile
interim projects over the less visible topics before a law improvement
body. The familiar political response to public concerns about new or
worsening anti-social behavior is to define new offenses and increase
penalties, though without imposing burdens on private parties that
may object.6 Penal law reform is not a likely assignment for the
in the Functions of the Past, 44 WILLAMETTE L. REV. 169 (2007).
4. OR. REV. STAT. § 173.315 (2005).
5. As this is written, two of the six Senators and one of the three Representatives who
have their J.D.s are candidates for election as Secretary of State or Attorney General.
6. Putting new, “tougher” penal or regulatory sanctions on the books stands as a legislative accomplishment, whatever their later use in practice, but civil recovery for persons injured
by the penalized conduct is a different matter. When, after requesting the Commission’s twoyear review, the legislature enacted new standards of government ethics, it declined to deter-
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Commission. Most law reform projects are too painstaking and dull,
and Law Commission membership is deliberately too balanced, to
provide a platform for partisan politics.
For these or other reasons, the legislative appointees have sometimes been lawyers who are not themselves legislators. This can be
very valuable when it allows former legislators like Chair Shetterly to
continue on the Commission, but less so if appointees serve only for a
couple of years and do not gain experience and familiarity with the
Capitol. Service by legislators through several legislative terms provides an essential link with the main addressee of the Commission’s
work. Some legislators indeed may use the position as an opportunity
to advance a favored cause.7 But the legislative members can and
should be ready to explain the substance of the Commission’s proposals to their respective houses, and, at a very practical level, to deal
with predictably recurring suggestions to cut the Commission’s appropriations in favor of other priorities.
b. The Chief Justice and the Attorney General
It was the Oregon Law Commission’s good fortune that at its inception these positions were held by professionally respected former
legislators, who had been active in law reform during their years of
legislative service: Chief Justice Wallace P. Carson Jr., a Republican,
and Attorney General Hardy Myers, a Democrat. The contributions of
these two members ex officio necessarily differ.
Oregon’s Attorney General heads a large Department of Justice
staffed with lawyers who, by statute, are solely responsible for advising and representing all state agencies.8 When an agency confronts
legal problems that require statutory solutions, the agency usually
seeks the necessary legislation directly, but deeper reforms that cut
across agency lines may lend themselves to a Law Commission project.9 The same applies if outside interests propose legislation that afmine what to do about a decision or transaction tainted by an official disqualified for any reason, though this question often is far more important to the parties or to the public than the
penalty. Lawyers may find it hard to agree to clear answers when they cannot predict whether
their public or private clients will seek to affirm or to invalidate a given transaction.
7. Senator Kate Brown, the Commission’s long-time vice chair, chaired a lengthy and
difficult work group to revise Oregon’s juvenile code, an overdue task that would not engage
the major interest groups clamoring for the legislature’s attention but resulted in a substantial
list of new laws.
8. OR. REV. STAT. § 180.220 (2005).
9. Hardy Myers & Philip Schradle, The Oregon Law Commission’s Judicial Review Act
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fects the government’s functions. The Attorney General is not only
free but is expected to advocate the Department’s position on all such
proposals for policy as well as for technical reasons. Attorney General
Myers’s long private and public career made him the obvious and effective chair of the Commission’s work groups both on the judicial
review bill (dating from his legislative years before the Commission’s
creation), and for the later revision of the government ethics laws.
The Chief Justice necessarily is more limited in arguing for or
against a policy on the basis of debatable social or economic consequences, unless the argument relates to a proposal’s significance for
the operations (and the budget) of the state’s courts. This also has
constrained Chief Justice Carson and his successor, Chief Justice Paul
J. DeMuniz, from assuming a leading role in a Commission work
group. A major reason for including the Chief Justice was the hope of
stimulating some system within the judiciary to collect and report instances, whether in statutes, regulations, or common law, where judges find sources of legal guidance more than ordinarily confused, contradictory, or simply lacking. This has not yet happened. Since the
creation of the Oregon Court of Appeals, many problems in resolving
everyday legal questions come before that court without ever reaching
the Oregon Supreme Court. It may well be desirable to add the Chief
Judge of the Court of Appeals to the Law Commission’s membership.10
c. Law Faculties
A similar goal was sought by including the deans of Oregon’s
three law schools: to draw upon full-time faculty members both for a
wide, informed perspective toward their academic subjects in and outside the state, and for the ability to formulate improved legal solutions
without being professionally committed to any clientele. Dean
Symeonides’s and Professor James A. R. Nafziger’s work toward
Project: A Reform Effort Still on the Horizon, 44 WILLAMETTE L. REV. 275 (2007); S.B. 107,
74th Legis. Assemb., Reg. Sess. (2007); see also OR. LAW COMM’N, Violations Legislative
Summary, in BIENNIAL REPORT OF THE OREGON LAW COMMISSION 1997–1999, at 27–28
(1999), available at http://www.willamette.edu/wucl/pdf/olc/1999repor.pdf.
10. The statute also gives the Governor one appointment to the Commission. Since so far
I have been the sole appointee (by Governors Kitzhaber and Kulongoski), I have little comment on that provision. Because it can be used to appoint someone especially interested in the
law reform process, to reappoint a commissioner retiring from another slot, to represent an
under-represented legal concern, or perhaps to pursue some project on a Governor’s reform
agenda, this appointment is flexible enough to serve the Commission in a variety of ways.
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codifying selected areas of the conflict of laws11 shows what can be
accomplished, while promising projects on modernizing Oregon’s
elective share provision and the automobile insurance code were
caught in the crossfire between the client-oriented specialists of the
Oregon State Bar.
The organizational plan called for the Executive Director of Oregon Law Commission to be a tenured faculty member with a halftime teaching load who would devote the remaining time to involving
academicians in identifying useful projects in their fields of expertise
and taking an active role in Commission projects. This type of commitment for the extended period required is not easy to combine with
a scholarly career. Dean Kenagy, not himself an academic, had his
hands full for ten years getting the Commission established, funded,
staffed, and, we may hope, recognized as a valuable fixture in Oregon’s governance. These remain essential tasks for long-term leadership. Eventually, the Law Commission needs both the existing Executive Director and a director of substantive programs. But, for various
reasons, greater involvement of the law faculties will demand further
work. The reasons include shifts in important professional subjects
from the state to the federal or international level, as well as in the
backgrounds of law professors.12 Deans can remind their faculties that
the decentralized American legal system offers academic experts wider, less crowded opportunities at the state than at the federal level improve on the products that emerge episodically from appellate courts,
from legislative reactions to headline events, or from general constituency demands; they also can make clear that creative work on a law
commission project is valued similarly as, for instance, on a project of
the American Law Institute.13
11. Symeon C. Symeonides, Oregon’s Choice-of-Law Codification for Contract Conflicts: An Exegesis, 44 WILLAMETTE L. REV. 205 (2007). See also James A. R. Nafziger, Oregon’s Project to Codify Conflicts Law Applicable to Torts, 12 WILLAMETTE J. OF INT’L L. &
DISP. RESOL. 287 (2004).
12. In recent decades, federal statutes (as well as international transactions) have become increasingly important in law practice, and attention to federal courts, their procedures,
and judicial doctrines dominate teaching materials even where state law continues to apply.
More young faculty members enter teaching to pursue broader theoretical interests, many with
advanced liberal arts degrees, and see the road to academic recognition in addressing other
scholars with the same interests (especially in the “top law reviews” that often count extra toward tenure, promotion, and invitations to visit) while fewer have studied, clerked, or practiced in the same state in which they teach. Depending on their specialties, they have little academic reason to care about the law of that state among many others.
13. All three law schools were invited to submit proposals for housing the Commission,
and University of Oregon President David Frohnmayer, a former professor, legislator, and Or-
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d. Bar Appointees
Unlike salaried public officials and faculty members, the private
practitioners appointed by the Oregon State Bar serve on the Law
Commission and its work groups at substantial cost in valuable working time. Their presence assures the Commission’s indispensable
openness to the knowledge and experience of working professionals,
and they make important contributions to different projects. Again, it
is important that these appointees agree, and are reappointed, to serve
long enough to enhance their own as well as the Commission’s institutional memory of its projects.
Not enough thought may yet have been given to these commissioners’ potential to act as a bridge between the Commission and the
Oregon Bar’s specialized sections, whose members often represent
diverse interests that the commission’s recommendations may affect.
When some of these specialists resist Commission proposals that
would change an existing text and perhaps cast doubt on familiar verbal formulas or precedents,14 the Bar’s appointees could be in the best
position to meet such fears and to explain the underlying reasoning
both within the organized Bar and to legislative or other bodies considering the proposal.
2. The Commission’s Legal Status
A few issues lead to seeking labels for the Commission, its staff,
or its products. For some purposes, the Commission unquestionably is
an entity of state government, but it is not a part of the legislative, the
executive, or the judicial department. Its purely advisory function
saves it from the constitutional strictures against persons in one of
these departments performing functions belonging to another, and
therefore permits its deliberately mixed membership. 15 It does, how-
egon Attorney General, sought to bring it to Eugene, but Willamette University made the most
determined effort to locate and support the Commission in Salem, in a campus building across
the street from the state’s Capitol and convenient to Oregon’s main metropolitan areas. Sharing the two leadership functions would allow academic leadership to come from the most interested law faculty while keeping its executive director, staff, and offices in Salem.
14. Examples of this defensiveness were common in opposition to the bill to clarify judicial review of government actions, on the part of the representatives of the section on administrative law as well as local government lawyers. Myers & Schradle, supra note 9.
15. “. . . [N]o person charged with official duties under one of these departments, shall
exercise any of the functions of another, except as in this Constitution expressly provided.”
OR. CONST. art. III, § 1.
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ever, comply with the open meetings and open records laws.16
3. Commission Processes
a. Selecting Projects
The Oregon Law Commission performs a difficult balancing act.
The Commission was and is needed to identify legal problems and
propose solutions in areas, especially in private law and other areas
that lack organized constituencies, for which no one in government
assumes responsibility but that courts cannot reach on their own. The
Commission’s role is not confined to legislative solutions, yet it was
established and needs funding by legislators who often want it to
serve other priorities. The Commission responded by adopting a policy to take on any project directly requested by legislative leaders or
the governor that the Commission, in its own judgment, could handle
effectively, sometimes contingent on funding for added staff. 17 Another source has been the Legislative Counsel office, which needs an
official client for whom to work on modernizing old statutes that
holds no interest for a legislative committee.18
Private law projects often face the tension between a recognized
need to clarify incomplete, confusing, or outdated law and the risk of
waking sleeping old dogs.19 Often, lawyers seem to prefer known uncertainty to a possibly unfavorable resolution. Public rhetoric, including that of judges, rejects judicial lawmaking, but in practice, lawyers
resist turning to legislators until they learn what judges will do on
16. OR.REV.STAT. §§ 192.610–192.690 (2005).
17. Wendy J. Johnson, Samuel Sears & Daniel Rice, Oregon Government Ethics Reform,
44 WILLAMETTE L. REV. 399 (2007). A governor may ask the Commission to take up proposed legislation in a message vetoing a bill that he considers unsatisfactory, as occurred with
a partial judicial review bill, Press Release, Governor John A. Kitzhaber, Governor Announces
Veto (July 21, 1995), available at http://arcweb.sos.state.or.us/governors/ Kitzhaber/web_pages/governor/press/p950721.htm, and the original government ethics reform bill,
Letter from Ted Kulongoski, Oregon State Governor, to Program Committee, Oregon Law
Commission (Nov. 12, 2003), available at http://www.willamette.edu/wucl/olc/groups/
govt_ethics/Letter%20from%20the%20Governor.pdf.
18. See Violations Legislation Summary, supra note 9. See also OR. LAW COMM’N, Civil
Rights Work Group Report in BIENNIAL REPORT OF THE OREGON LAW COMMISSION 1999–
2001, app. A (2001), available at http://www.willamette.edu/wucl/pdf/olc/2001 report.pdf.
19. In one agency’s project to clean up an existing statute, Oregon’s Labor Commissioner declined to insert a missing time limitation on bringing suit because choosing either one or
more years would trigger opposition from one of the affected interests. See OR. LAW COMM’N,
Civil Rights Statutes Report, in BIENNIAL REPORT OF THE OREGON LAW COMMISSION 1999–
2001, app. A (2001) (report prepared by Michael Hallinan).
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their own; only then does the losing side seek legislation. When the
Commission’s program committee recommended clarification of an
obscure, apparently contradictory section of the automobile insurance
law, lawyers for three otherwise adversary interests conceded the section’s obvious flaws, but they appeared together in atypical unison to
warn the Commission against reopening other battles between the respective interests that had led to the existing patchwork, which would
cost everyone money without reaching any result.20 Yet if the Commission did not take up reforms about which people might disagree
on its own initiative, it would be reduced to serving legislators as an
overqualified interim committee staff.
b. Work Groups
The search for optimal balance of the rationally ideal and the politically attainable also shapes the work groups assembled for each
project, usually composed of knowledgeable practitioners, judges, or
instructors in the subject area and headed by a Commission member.
Their composition allows the flexibility needed to reflect the wide differences among Commission projects. Updating uncontroversial but
obsolescent statutory texts while avoiding even unintentional policy
changes is a tedious but valuable collaboration between legislative
counsel, agency counsel, and a few practitioners or judges who work
in the statute’s domain. Sometimes the work group members share
common substantive goals, as in the administration of family and juvenile law. After such a work group’s consensus bill is reviewed by
the Commission’s members and formally adopted, it is likely to win
enactment by the legislature. Legislative committees could oversee
such projects themselves if they had enough staff, but the Commission’s leaders as well as legislators value them as some quantitative
score of the Commission’s usefulness when its appropriation comes
up.
Other projects must accommodate diverging interests, among real parties or sometimes only among lawyers comfortable with existing
law. Work groups assembled for such projects, along with independent judges and academics, aim to include members familiar with as
many of the diverse points of view as feasible. These members are
expected to bring their expertise to the work group’s discussion but,
20. See Minutes from Meeting of the Oregon Law Commission (Feb. 27, 2004) (Automobile Insurance Work Group proposal for re-submission to Oregon Law Commission),
available at http://www.willamette.edu/wucl/pdf/olc/minutes/2004-02.pdf.
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in a phrase borrowed from the American Law Institute, to “leave their
clients at the door.” Accordingly, the Commission has established an
important distinction between voting members of a work group and
other participants or advisers who may not vote. It would be as improper for a work group member as for a commissioner, aside from
salaries from other employment, to collect a fee for official work on a
Commission project.
c. Commission Consideration
The Commission can expect some interested parties to renew
their objections to the legislature, whatever it may recommend. How
should this affect the Commission’s work? That may depend on
whether the project originated in the government or within the Commission itself. If a topic is already on the legislative agenda, the
Commission seeks a consensus consistent with the project’s overall
goals; failing this, the Commission’s role is to propose and explain a
principled choice on the unresolved issues.
Except for the headline issues and fiscal struggles that divide the
majority and minority parties, however, Oregon’s part-time legislature tends to direct other interested parties to settle their differences
before it enacts the resulting compromise. Legislators rarely presume
nor have time to study, debate, and decide these differences on their
merits. When the Commission initiates a law reform not already on
the legislature’s agenda, no matter how useful it may be, opposition
from any recognized quarter can prevent action on its proposal.
For instance, when the Commission’s proposed statute for resolving conflicts of law in contract disputes—the epitome of a lowprofile, non-political area of private law—reached the moment of its
only consideration by the responsible committee, a lawyer lobbyist
confronted waiting Commission witnesses with a demand to exempt
Washington automobile dealers (across the Columbia River from
Portland) from the bill, claiming that it would conflict with their obligations to follow Washington State rules on financing contracts.
When asked to spell out just how the bill did this, he refused—or perhaps was unable—to do so but said he would demand that the committee postpone sending the bill to a floor vote. Given that a delay
would prevent enactment at least for two years, Commission Chair
Shetterly reluctantly concluded not to resist this demand. Why Oregon legislators should be solicitous of a lobbyist for Washington car
dealers was left to one’s imagination.
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d. Participation in Post-Commission Stages
After the Law Commission has adopted its completed draft and
the accompanying report, these can be changed only by another vote
of the Commission. Individual commissioners or staff members can
explain the Commission’s proposal and defend the reasoning of its
recommendations, but they cannot negotiate or endorse a change on
behalf of the Commission, unless the Commission were to delegate
such discretion to some of its members. Members, the Commission,
and its work groups, however, remain free to express their own views
on any issue, as they long as they make it clear that they are speaking
for themselves and not for the Commission. Their ability to do so is
important, because advocates for special interests as well as legislators, pursuing the customary negotiated lawmaking, are likely to ask
commissioners whether some change in the proposal would be acceptable to the Commission.
Individual commissioners may be helpful even if their views diverge about a particular amendment, deletion, or exemption. But the
Commission is not a stakeholder with whom to negotiate a “compromise.” Once it has made its report, the Commission should resist being drawn into choosing sides among adversary interest groups, which
might only divide the Commission along the same lines, contrary to
its commitment to seeking solutions that are the best available for the
legal regime involved and leaving political disputes to elected politicians. If lawmakers want the Commission’s view of a proposed modification, there is no substitute for allowing enough time to consider
and vote on a response, even at the cost of re-referring the bill for the
next available opportunity.
B. PLANNING FOR THE FUTURE: WHAT CAN BE LEARNED FROM THE
EXPERIENCE OF THE FIRST DECADE?
Systematic law reform in a democracy faces two obstacles that
are likely to continue for the indefinite future.21 Both reflect the legal
profession’s law-school acquired view of courts as primary lawmakers. Any law reform worthy of the name strives for a substantial
measure of clarity, coherence, and consistency. Legislative law-
21. Not surprisingly, most historic codifications were enacted under emperors like Justinian, Napoleon (the French revolution rejected judicial law-making), and their postNapoleonic successors in Germany and Austria, but these examples were not followed in
common-law Britain’s empire or Commonwealth.
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making, on the other hand, often adopts proposals for a narrow, ad
hoc fix to someone’s problem, leaving a patchwork of what earlier
generations might have scorned as “private” or “special” laws,22 and
accepts ambiguous or indeterminate formulations if these will bridge,
or defer, a conflict between opposing interests.
A greater challenge is posed by the inescapable difference of
time frames. A significant statutory reform is a long-term undertaking, while Oregon boasts that its legislators are part-time amateurs,
few of whom now stay for more than three or four sessions. The lawyers among them must deal with a wide range of current legal issues
and can maintain continued attention to only a few long-term projects.
The Commission itself faces continual change. Yet the Commission’s
projects represent too great an investment in time and money to be
shelved unless enacted. How could prospects for their use be improved?
1. Choice of Format
The Oregon Law Commission should continue whenever possible to undertake projects requested by legislative leaders or by the
Governor. These normally are assured of legislative attention, though
to avoid being used as a political waste basket, the Commission might
routinely obtain a statement describing the requesting body’s sustained interest in pursuing the object of the request. Its unique role,
however, is to propose improvements in problematic legal regimes
that do not otherwise engage someone’s political agenda.
The Commission is not restricted to drafting legislation. Many
legal problems can be avoided or resolved by properly written rules
adopted by a responsible public entity within its assigned authority.
Despite some vestigial notion that only legislators should make rules,
whenever agency rules can do the job, agencies should act.23 A more
pragmatic concern is that drafting proper rules, like statutes, requires
lawyers and costs money. The Commission could do the work in areas where the Department of Justice does not, either for a specified use
or as adaptable model rules. The model might be considered for pro-
22. See, e.g., OR. CONST. art. I. § 20, OR. CONST. art. IV, § 23.
23. Recent government ethics legislation in fact adopted a Commission recommendation
encouraging organizations of diverse public entities to draft rules for applying the statutory
standards for particular functions, subject to approval by the state Government Ethics Commission. S.B. 10, 74th Or. Legis. Assemb., Reg. Sess., at § 9(a)(2) (Or. 2007), 2007 Or. Laws
ch. 877, available at http://www.leg.state.or.us/07reg/measpdf/sb0001.dir/sb0010.en.pdf.
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jects like the Commission’s study of agency “background checks,”
which may have quite distinct functions in different contexts. It also
should be considered for offering guidance on constitutional issues
upon which judicial elucidation is rare. One example could be standards guiding law enforcement officers’ compliance with Article I,
Section 13 of Oregon’s Bill of Rights, a section with everyday operational importance but few occasions for judicial application.24
Similarly, legislation is unnecessary if a problem can be solved
by using an existing source of law. Nothing prevents the Commission
from recommending a solution attainable by judicial decision, the preferred recourse of practicing advocates in any event. It could prove
useful in issues of tort law, where opposing sides are likely to derail
almost any proposal for legislation.25 An example may be found in a
recent Oregon case involving the significance of labeling persons injured by some condition on a landowner’s property (the “trichotomy”
of “invitees,” “licensees,” and “trespassers”), which commissioner
Dom Vetri earlier proposed as a potential project, and which Oregon
courts have not reassessed for the relevance of modern decisions on
“duty” and Oregon’s comparative fault statute that may make further
legislation unnecessary.26 Another project could be to formulate a
principled alternative to ad hoc judicial theories whether a law penalizing injurious conduct implies a duty to compensate the anticipated
injured victim.
24. “No person arrested or confined in jail shall be treated with unnecessary rigor.” OR.
CONST. art. I, § 13. See, e.g., Bott v. DeLand, 922 P.2d 732 (Utah 1996).
25. An example of a badly drafted legislative compromise concerned the liability of liquor servers for injuries to their intoxicated patrons. OR. REV. STAT. § 471.410 (2005). See,
e.g., Gattman v. Favro, 757 P.2d 402 (Or. 1988); Chartrand v. Coos Bay Tavern, 696 P.2d 513
(Or. 1985); Sager v. McClenden, 672 P.2d 697 (Or. 1983); Davis v. Billy’s Con-Teena, Inc.,
587 P.2d 75 (Or. 1978); Comment, Review of Oregon Legislation, 16 Willamette L. Rev. 191,
192-193 (1979).
In an unusual counter-example, while products liability law was evolving in a series of
Oregon Supreme Court opinions, apprehensive lawyers for plaintiff and defense interests
agreed on statutory enactment of section 402(a) of the American Law Institute’s Restatement
(Second) of Torts and the accompanying comments a-m. See OR. REV. STAT. § 30.920 (2005);
Dominick Vetri, The Integration of Tort Law Reforms and Liability Insurance Ratemaking in
the New Age, 66 OR. L. REV. 277, 297-298 & n.77 (1987). These ALI formulations remain
Oregon law despite the later elaboration in the Third Restatement. Restatement (Third) of
Torts: Products Liability (1998).
26. Johnson v. Short, 160 P.3d 1004 (Or. App. 2007). See also OR. REV. STAT. § 31.600
(2005) (comparative fault “formula”).
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2. Planning for Follow-Through
Unless it responds to an official request, an embryonic law reform needs pre-natal as well as post-natal care, often for years. In
considering a proposed subject, the program committee should ask the
proponents and itself who can be counted on to lead future efforts to
turn the proposal into legal reality. If, as usual, the proposal calls for
legislation, the Commission should identify at least one legislator,
preferably in each house, who is prepared to press for legislative action, often for more than one session, and should invite these persons
to participate in the work group. The Commission itself does not lobby for its proposals on its own behalf, but without active leadership,
any proposal is vulnerable to even minor opposition or to simple neglect in favor of other items on the legislature’s agenda.
How much a Law Commission product should accommodate the
views of affected interests does not lend itself to a general formula.
The Commission constantly must guard against becoming a mere interim legislative committee; when a project consists only in arbitrating a conflict between opposing interests, it properly is done by the
legislature itself. It should resist being “credited” with legislation that
has been radically changed from the Commission’s proposal. There
is, however, one useful device for dealing with such conflicts that the
Commission has not yet employed in its own projects: it can submit
alternative versions of selected provisions for decision by the eventual
lawmaker, particularly when the conflicting interests argue over quantified elements such as filing deadlines, statutes of limitation, or
amounts of damages.
Completed but not yet enacted projects remain unfinished business unless mooted by the adoption of another solution or by other
events. The Commission should find a way for its major work to appear in a permanently shelved and indexed publication (as long as
these continue to exist). For example, when academic experts prepared studies for the Administrative Conference of the United States,
these often appeared also as signed law review articles.
The Commission should review its completed but unrealized
projects annually and engage their original or successor supporters in
their renewed consideration. Also, groups proposing narrow bills to
address some specific legal concern may be as unaware as the legislators of solutions that have previously been studied and recommended
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by the Oregon Law Commission.27 It would be easy and useful to establish a system of routine cross-checking between designated legislative and commission staffs, and to offer the Commission an opportunity to comment before or at hearings on such bills.
C. CONCLUSION.
The Oregon Law Commission has successfully survived its first
decade—not a sure thing during a time of squeezed public budgets,
sliding confidence in public institutions, and deeper partisan divisions
in Oregon’s legislature. As these obstacles recede, the teenager shows
every sign of becoming a healthy, productive contributor to the state’s
laws and institutions.
The Commission has gained experience with combining two different functions. One is to serve the legislature and other lawmakers
as a separate, non-political overseer of complex or otherwise timeconsuming projects. This task ranges from bringing obsolescent agency statutes up to date to such difficult and controversial substantive
topics as the government ethics laws. Some of these efforts will be
enacted without difficulty, others only in part and with changes, but
each counts towards the Commission’s legislative productivity.
The second function is to originate improvements in Oregon law
on its own initiative or suggested by sources outside the state’s political branches, such as the courts, the professional practice, academic
observers, or organizations such as the American Law Institute, the
Uniform Laws Commission, or more specialized groups. One can debate which task is more important, one that previously and in the future would find its way on the legislative agenda anyway, or one facing neglect and lower odds of enactment precisely because it lacks
political appeal. In fact, both are important, and the Commission’s
structure has proved to be well-designed to maintain both functions.
But, compared to other professions, such as medicine, architecture,
engineering, or any physical science, law surely is among the most
conservative in hoarding its stock of familiar knowledge and formulas
against reexamination and change. To identify and undertake promising subjects for reexamination and reformulation in the years ahead,
27. In 2007, a long-time ACLU lawyer persuaded the legislature to deal with the problem of suits mooted when named public school students graduate by directing courts to adopt a
formula used in federal and most state courts that Oregon courts have repeatedly rejected,
without comparing the more considered solution in the Oregon Law Commission’s proposed
overall revision of judicial review. 2007 Or. Laws ch. 770.
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the Commission will need help.
Some help can come from within the Commission itself. The
Chief Justice or other representatives of the judiciary might designate
a staff attorney systematically to collect examples from judges of cases in which they have found existing sources of law more than usually
obscure, outdated, or simply lacking, and a way to decide which problems to bring to the Commission’s attention.28 Members appointed by
the Oregon State Bar might suggest a similar way to collect, with the
help of the Bar’s staff, topics from its sections or individual members
for Commission consideration, possibly in conjunction with a section’s own ongoing program, and they might in turn keep Bar sections
informed of projects proposed to the Commission. Deans could routinely remind and encourage faculty members in areas of state law to
follow developments in the state, to suggest needed or potential improvements, and to publish articles (not necessarily in highly academic journals) on the most significant of these.
Growth is not without cost, as anyone living with a teenager
knows.29 Any activity beyond what the Commission does today will
increase demands on the time and attention of the commissioners.
Legislative members will need to justify and secure additional staff
assistance. But this will be true of other institutions in step with the
growth of the state’s population, economy, and demands on its legal
system. In time, the legislature itself is likely to develop more professionalism, perhaps as a result of regular annual sessions and higher
legislative salaries. Like Hardy Myers, Lane Shetterly, and Kate
Brown, other experienced lawyer legislators may accept extended appointments to the Commission, and will scrutinize the substance of
Commission proposals with their own professional judgment beyond
convening and presiding over work groups of non-legislative experts,
and will continue to pursue those proposals over the necessary number of sessions.
28. A few representative illustrations are found in Carlson v. Meyers 959 P.2d 31, 38 n.3
(Or. 1998) (ballot title statutes), Hughes v. State 838 P.2d 1018, 1036 n.36 (Or. 1992) (contract
remedies against state pension system), Lloyd Corp. v. Whiffen, 773 P.2d 1294, 1315–1316
(Or. 1989) (Carson, J., dissenting) (political solicitation on shopping center property), Emery
v. State, 688 P.2d 72, 83 (Or. 1984) (Roberts, J ., dissenting) (compensation for police destruction of vehicle searched for evidence), Forman v. Clatsop County, 681 P.2d 786, 788 (Peterson, J., dissenting) (criticizing judicial review system).
29. A possibility worth exploring is financial support for a significant project beyond the
regular budget from a foundation or similar source with no direct stake in the results. If the
current legal status of the Commission’s funding complicates such direct grants, perhaps they
could be channeled through Willamette University or another participating law school.
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This continued attention needs to be secured in some manner.
Legislative committees, too, may come to invite the counsel of professional staff members on matters of substance beyond institutional
memory, committee hearings, and the flow of bills through the legislative process. If the Commission’s staff can extend its working relationship with the legislative counsel’s staff to professionals on substantive committees, this would benefit both institutions. As the
number of past commissioners grows, it would be wise to invite these
alumni, particularly former legislators, to join in appropriate work
groups and otherwise to keep them informed or involved in the
Commission’s continued activities.
Doubtless all this will take time, and political developments may
take a wholly contrary course toward neglect and loss of funding. But,
Oregon’s leadership is given far more to caution than (initiative
measures aside) to sudden political lurches. It should be interesting to
see in another decade how the Oregon Law Commission has developed to full adulthood.