Oregon Law Review Online
Welcome to the Oregon Law Review Online. Launched in 2011-2012, the Oregon Law Review Online is an online companion to the Oregon Law Review print publication. The Oregon Law Review Online acts as a forum for publishing responses to articles in our print publication, as well as original articles and essays that address issues important to the State of Oregon and the legal field more generally.
We are currently accepting both responses to articles published in the Oregon Law Review, as well as original pieces. For more information on how to submit a response or original piece for publication on the Oregon Law Review Online, contact Karen Westbrook, Online Content Editor at firstname.lastname@example.org. .
A Response to Ann Bartow's Copyright Law and Pornography
91 OR. L. REV. ONLINE 39
In Copyright Law and Pornography, Professor Ann Bartow argues that the Copyright Act should be amended to deny protection to a “narrowly defined band of pornographic works”; specifically, those deemed to be harmful to the individuals depicted. Bartow proposes an amendment that would “make pornography a specific category of copyrightable work with the express stipulation that harmful pornographic works are not eligible for registration or protection.” She contends that this could be accomplished by an “increase in the size and mandate of the Copyright Office,” whose employees “would make the initial, appealable decision about whether a pornographic work qualified as non-progressive and non-useful.” The Copyright Office would then deny copyright protection to pornographic works if the performers were harmed in the making, and a copyright could be invalidated retrospectively if harmfulness is later demonstrated.
While Bartow asserts that such an amendment would reduce the incentive to manufacture child pornography, crush videos, and so-called “revenge porn,” her remedy does not offer any standard or definition by which the Copyright Office could be guided in making a determination as to “pornography that is non-progressive and non- useful.” In addition, it assumes, questionably, that the primary motivation for the creation and distribution of these works is monetary, and it ignores the chilling effect that such a change in the law could have on copyright in general. The following discusses, among other problems, both why such an amendment to the Copyright Act would not succeed in curbing the creation of “harmful” categories of pornography and the potential negative impacts of such a broad amendment.
Spiralling Into Control: Appreciating the Groundbreaking Legal Writing Pedagogy of Professor Mary S. Lawrence
91 OR. L. REV. ONLINE 1
Mary Lawrence, the first director of the University of Oregon School of Law’s Legal Writing Program, created a curriculum that ushered in a new way of thinking about legal writing. Legal writing programs have been in place in law schools since the 1940s, but the limited focus of many of the early programs was on the "product" rather than the "process" of writing. Students were instructed in the forms of legal writing (office memo, brief, client letter, etc.) without any sustained training in the process of writing and the interplay between writing and thinking. Mary, who began teaching legal writing at Oregon in 1978, was an early advocate and leader in the shift from product to process. Mary literally wrote the book on writing as a thinking process. Mary’s method of instruction focused "not on the end product (the completed memorandum or brief), but on the process of composing." It provided "cumulative practice in the cognitive processes that legal writing entails: (1) Imposing order on information; (2) Extrapolating from information; (3) Synthesizing." The process approach to teaching legal writing is now a universal attribute of the legal writing pedagogy. Mary’s seminal scholarship and frequent national presentations on writing as a thinking process were critical in establishing the modern discipline of legal writing.
With this theoretical backdrop, Mary developed a legal writing curriculum notable for several innovations. First, the curriculum fully integrated research, analysis, and writing. Mary emphasized the importance of legal research in the writing and thinking process. A major premise of the course was that "legal research methods, except at the most mechanical level, affect the researcher’s thinking process and written legal analysis." Mary accomplished this integration of research, analysis, and writing by adapting a technique from a composition theory she pioneered called "spiralling." Students were taught core principles of research, analysis, and writing in an interwoven fashion, first with simpler assignments, and then they circled back, or spiralled through similar but more complex legal problems. New concepts, such as the administrative process, were introduced as the students gained confidence in their understanding of the central tenets of the analytical process. Second, Mary’s curriculum emphasized statutes. Mary introduced statutory analysis at the beginning of the course, and statutes were central to every assignment throughout the semester. Third, Mary’s comprehensive course packet was filled with flow charts and grids explaining research and analysis processes. These visual aids addressed different learning styles long before "teaching to the entire class" became popular. Mary’s integrated curriculum made real the theoretical backdrop of the process approach. In these ways, she helped create the discipline of legal writing as we know it now.
Mary retired in 2000. In her twenty-two years in legal writing, she held every office in the Section on Legal Writing, Reasoning, and Research of the American Association of Law Schools. In 1996, Mary received the first "Distinguished Services to the Profession" award from the Section. At the University of Oregon School of Law, Mary was the first recipient of the prestigious Orlando John Hollis Award for Outstanding Teaching. Upon her retirement, the school endowed a scholarship in her honor. In 2000, the Association of Legal Writing Directors presented Mary with the inaugural Rombauer Award. In 2010, Mary received an award from the University of Oregon School of Law for Meritorious Service. Also in 2010, the Legal Writing Institute (LWI) established the Mary S. Lawrence Award for Excellence in Legal Scholarship. When the award was first presented, sixteen of the biggest names in legal writing offered tributes to Mary. The presenters spoke fondly of Mary’s dedication to the field of legal writing, as well as her care and concern for the people teaching legal writing. Susan Brody summarized this sentiment by calling Mary "one of our greatest leaders" and the "quintessential ‘mentor,’ ‘mobilizer,’ and even ‘mother’ so-to-speak" of the legal writing community.
Legal writing is now sufficiently mature as a discipline that one can easily lose sight of the founders who made it a distinct entity. We need to honor the founders, and no founder was more influential than Mary Lawrence. While the touching tributes praise Mary’s leadership and vision, this article will be the first to examine in detail what made Mary’s legal writing curriculum special, and how she became a "superstar in the legal writing academy." The story of the birth of the discipline of legal writing can be told through this examination. Part I describes how Mary developed her process approach to writing and her "spiralling" learning theory in her first career, as a professor of English as a second language, prior to attending law school. Part II explains how Mary adapted these cognitive theories from English composition to revolutionize the pedagogy of legal writing. It will also highlight other unique features of Mary’s curriculum, such as the emphasis on statutes. Part III focuses on Mary’s careful mentoring of the professors in her program and the students she taught. It also recognizes her influence on legal writing professors across the country. Part IV briefly discusses the sudden and sad onset of a debilitating disease that caused Mary to lose her voice. The article concludes with an assessment of the continued vitality and relevance of Mary’s curriculum as the discipline of legal writing moves into an exciting future.
Two Justices at Issue: Goodwin and O’Connell
90 OR. L. REV. ONLINE 1
Alfred T. Goodwin served on the Oregon Supreme Court for almost ten years. He joined the court in 1960 after four years of service on the Circuit Court for Lane County, and he was appointed to the federal district court in 1969. In 1971, he was elevated to the U.S. Court of Appeals for the Ninth Circuit, which he eventually served as Chief Judge. While Justice Goodwin sat on the Oregon Supreme Court, one of his colleagues was Kenneth O’Connell, who had joined the court in 1958, only a short time before Goodwin. O’Connell served twice as long and was the court’s Chief Justice and intellectual leader from 1970 to 1976.
This Article, which stems from the author’s larger project involving Judge Goodwin’s extraordinary career, examines in detail the competing views of Justices Goodwin and O’Connell during their joint tenure on the Oregon Supreme Court. It begins with a brief treatment of Justice O’Connell reviewing Justice Goodwin’s work as a circuit judge in Lane County. Here we can see the two jurists’ opinions compared on matters of criminal, property, and contract, as the two interacted as judicial subordinate and superior just as they had done as professor and student at the University of Oregon School of Law. The Article then proceeds through the cases that the two jurists heard as colleagues on the state’s high court and in which they took competing positions. Through the substantive lenses of economic regulation and administrative law, civil liberties, criminal law and procedure, contracts, and torts, we see the two justices engage with one another to develop important legal doctrine for the State of Oregon.
The views of Goodwin and O’Connell on a number of subjects, whether torts or civil liberties, resulted in not infrequent disagreement. As O’Connell was later to say, “[W]e participated in some very interesting law-making, not infrequently in disagreement, and sometimes accompanied with sharp and heated debate.” The intent of this Article is to explore the disagreements between these two justices. There is much evidence that the student didn’t always follow the teacher. In general, O’Connell, more “adventurous” in breaking new legal ground, was more precise than Goodwin, and he gave more extended treatment to key doctrinal matters. However, their disagreement was professional, not personal. O’Connell later stated that “we left our dueling foils at the conference table, and never let our differences affect our personal relationship.”
The Article’s focus on cases in which Justices Goodwin and O’Connell disagreed, without also reciting those in which they agreed, of course serves to magnify their differences, portraying them as more stark than their overall work together would have been. Yet differences there were—plain from the opinions and reinforced by the justices’ own self-perceptions, as we see from Justice Goodwin’s comments to a law school classmate (then law professor) and interviews with the two justices. On criminal procedure matters, one was generally conservative while the other was more a due process liberal. Interestingly, the criminal justice conservative, Goodwin, focused more on procedural technicality in civil matters than did his colleague O’Connell, who focused more on due process rules in criminal procedure. Perhaps the most striking difference between the two justices was on common law issues, where O’Connell, perhaps still the professor, was more concerned about the development of theory, and where differences in style and approach were quite evident, with O’Connell willing to “move the ball” down the field both further and faster, while Goodwin, no reactionary, was more committed to slow, incremental forward movement and thus to the maintenance of precedent.
What can we draw from this description of the competing views of two justices of a state high court in the decade of the 1960s? We learn more about the history of the Oregon Supreme Court, to which insufficient attention has previously been paid. And most specifically, we learn about two justices who played a key part in development of Oregon’s law at that time and who engaged with each other intellectually as they worked on the issues before them. Most basically and particularly, we see two common law judges working on a range of issues with which a state high court dealt in that time period, many of which would arise in other state high courts. Of especial importance is that as to criminal procedure, the time portrayed was one when cases deriving from the Warren Court’s “criminal procedure revolution” were beginning to have an effect. The tensions between an emphasis on due process and on support for law enforcement, which could be seen then, still can be seen today.