Volume 90 · Issue 5

(UN)BOUND BY LAW: KEITH AOKI MEMORIAL SYMPOSIUM

Foreword: Unbound by Law: Keith Aoki as Our Avatar

Ibrahim J. Gassama and Steven W. Bender

90 OR. L. REV. 1189

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Becoming Asian American and the Magic of Historical Accident

Sumi Cho

90 OR. L. REV. 1203

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The Bridge and Playful Thunder of Keith Aoki

Lydia Pallas Loren

90 OR. L. REV. 1217

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The Arc of a Chameleon Bends Toward Justice: Remembering Keith Aoki

Garrett Epps

90 OR. L. REV. 1227

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The Geography of "Moo Ha Ha": A Tribute to Keith Aoki's Role in Developing Critical Legal Geography

Hari M. Osofsky

90 OR. L. REV. 1233

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Law Professor as Artist: Themes and Variations in Keith Aoki's Intellectual Property Scholarship

Margaret Chon

90 OR. L. REV. 1251

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En Paz Descance: Remembering Keith Aoki's Contributions Toward Latina/o Equality

Steven W. Bender

90 OR. L. REV. 1265

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Article

"The Tale of the Tribe and the Company Town": What We Can Learn About the Workings of Whiteness in the Pacific Northwest

John Shuford

90 OR. L. REV. 1273

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This Article relates "the Tale of the Tribe and the Company Town," which is unfolding somewhere in the Inland Northwest within the American Pacific Northwest. Insofar as the tale involves a federally recognized tribe, it is a tale that one might tell with attention to Indian law and policy, tribal sovereignty, and tribal interests and histories. However, this tale also implicates a nexus of historical influences and contemporary phenomena, and this Article presents the tale as an heuristic tool for surfacing and exploring some of these influences and phenomena, including white "amenity" in-migration, "whitopia" communities, company towns, secessionism, xenophobia and hate, racial exclusion and discrimination, domestic terrorism, and contested regionalisms. Some of these influences and phenomena have deep roots; others have unsettling current manifestations in the Inland Northwest region and throughout the Pacific Northwest (or Cascadia, as it is now sometimes called). Having presented the tale, and having worked to surface and explore facets of past factors, present conditions, and future possibilities that it implicates, the Article concludes with five insights and a few hopes.



Essay

Centering the Immigrant in the Inter/National Imagination (Part III): Aoki, Rawls, and Immigration

Robert S. Chang

90 OR. L. REV. 1319

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Fifteen years ago, Keith Aoki and I published "Centering the Immigrant in the Inter/National Imagination" in an early LatCrit symposium. The core idea animating that article is encapsulated in its opening sentence: "How a nation treats the immigrant speaks volumes about the nation." Our notion was that the immigrant, though invoked in phrases such as "We are a nation of immigrants," was more typically placed at the periphery rather than the center. We sought, in that article, to place the immigrant at the center of the analysis. We thought we were at a critical juncture with regard to U.S immigration law and policy, and we felt there was a great need for a critical examination of the "project of national self-definition. . . . [which] includes not only deciding whom to admit and expel, but also providing for each alien's transition from outsider to citizen." We found it odd that "borders [had] become increasingly porous to flows of information and capital" but were "constricting when it [came] to the movement of certain persons." Our article was an attempt to draw attention to this phenomenon and to examine the ways that immigrant identities, immigrant communities, and the nation are constituted.

Fifteen years after "Centering the Immigrant," we find ourselves wrestling with the same questions. We find our nation at another key juncture with regard to the issue of immigration, the rights of immigrants, and what is to be our national self-conception. Instead of books like Arthur M. Schlesinger's The Disuniting of America: Reflections on a Multicultural Society or Peter Brimelow's Alien Nation: Common Sense About America's Immigration Disaster from the 1990s, we have Patrick Buchanan's State of Emergency: The Third World Invasion and the Conquest of America and J.D. Hayworth's Whatever It Takes: Illegal Immigration, Border Security, and the War on Terror. Instead of Proposition 187 in California, we have Arizona's SB 1070 and similar laws in Utah, Indiana, South Carolina, Georgia, and Alabama. One of the things that Keith and I talked about fifteen years ago was the role that political theory might play in helping to think through what appeared to be an intractable political problem. He suggested that I apply our methodology of centering the immigrant to political theory. We had several conversations about social contract theory and how that would apply to immigrants. I started an article, and though Keith encouraged me to complete it, I never did.

I will use the occasion of this Symposium to revisit those conversations with Keith about centering the immigrant in political theory. What follows is a sketch that shows how centering the immigrant exposes the inattention paid to the immigrant and the issue of immigration in social contract theory. It focuses on how the immigrant might be brought into the conversation within John Rawls's notion of the original position and the veil of ignorance. This Essay does not seek to determine the content of the conversation nor what principles might be agreed upon by those in the original position.



Comments

Creating a Future Economic Crisis: Political Failure and the Loopholes of the Volcker Rule

Alison K. Gary

90 OR. L. REV. 1339

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In 2010, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act, one aspect of which was what President Obama called the "Volcker Rule." The Volcker Rule was intended to minimize systemic risk in the financial system by limiting the authority of insured depository institutions to manage hedge funds and to engage in proprietary trading. The legislative process, however, weakened the Volcker Rule. The final version of the rule contains several loopholes and the Act leaves many significant details for a patchwork of regulatory agencies to resolve. This Comment will focus on the Merkley-Levin Amendment to the Act that would have codified the Volcker Rule. The amendment was one of the most controversial aspects of the Act. Focusing on this amendment provides a window into understanding what happened in Congress and why, and how the amendment invested regulatory agencies with immense rulemaking authority.

First, this Comment describes the Volcker Rule and explains why the rule is needed. It walks through the amendment as introduced. Second, the Comment describes the political pressures that influenced the final form of the Act. Third, it walks through the loophole-filled version of the amendment that Congress enacted. Fourth, it discusses the rulemaking process in terms of public choice theory and attempts to convey the immense burden that the Act placed on agencies. Finally, it suggests possible agency solutions to close some of the loopholes in the Volker Rule, focusing in particular on hedge fund regulations.



Cruising Through Traffic Stops: Does Oregon Search & Seizure Law Place a Subject Matter Limitation on Officer Inquiries?

Ben Veralrud

90 OR. L. REV. 1389

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Imagine that you are driving your car at night in Oregon. Suddenly, you notice a police car following you. The police car initiates its siren and lights and pulls you over. The officer walks to your car, shines a flashlight through your window, and asks for your identifying information. The combination of the officer's uniform, badge, holstered gun, and red-and-blue flashing squad car serve as a reminder that this officer possesses tremendous authority over you. Upon handing over your driver's license, registration, and proof of insurance, the officer explains the reason for the stop. Unaware, your license plate light had burnt out. The officer runs a records check and begins questioning you while he awaits the results. The officer asks about your travel destination, whether you have consumed any alcohol, and whether there is anything illegal in your car. You give truthful, non-incriminating responses to each question. Not satisfied, the officer continues. "What do you have in the backpack on the passenger seat?" You assure the officer that the backpack only contains articles of clothing. You wonder why the officer continues to press on matters that seem to have no relation to your broken license plate light. "May I search the backpack?", the officer asks. "Can I think about that for a second?", you respond. There is nothing in your interaction with the officer to give him any suspicion of criminal activity, yet the officer's questioning feels intrusive and unnecessary. Meanwhile, the officer receives word from dispatch that your records check was uneventful and proceeds to write you a ticket for the inoperable light. As the officer returns to your car and hands you the traffic citation, he asks again for consent to search your backpack. The officer's persistence makes you question the legality of the officer's inquiries.

Oregon law has not produced a consistent response as to the legality of the hypothetical officer's intrusive questioning of the motorist. In the past, Oregon law restricted law enforcement from questioning motorists about matters unrelated to the initial reason for the traffic stop unless the officer had a reasonable suspicion of criminal activity afoot. In other words, Oregon law recognized a subject matter limitation to the scope of officer questioning during traffic stops. Support for such a limitation appeared in statutory law as well as in federal and state case law. The purpose of the subject matter limitation was to prevent law enforcement from using routine traffic stops to shoehorn broader criminal investigations.

This Comment will present three possible approaches to addressing the disparity between Oregon's apparent statutory subject matter limitation and Oregon case law that rejects such a limitation. Before discussing those approaches, the Comment first reviews Oregon search and seizure law. Next, the Comment examines the origins of a subject matter limitation in Oregon and summarizes its historical progression in Oregon case and statutory law before the enactment of Oregon's statutory exclusionary rule. The Comment then discusses Oregon's statutory exclusionary rule and how its enactment led Oregon courts to abandon statutory law as a basis for imposing a subject matter limitation and, instead, required courts to analyze whether article I, section 9, of the Oregon Constitution supports such a limitation. The Comment then summarizes recent case law that did not interpret the Oregon Constitution as imposing a subject matter limitation on traffic stops and explores federal cases concerning subject matter limitations and how those cases may have influenced recent Oregon case law. The Comment scrutinizes the rationales underlying the Oregon Court of Appeals decisions and examines some of the apparent shortcomings of those decisions.



Note

Ending Family Trauma Without Compensation: Drafting § 1983 Complaints for Victims of Wrongful Child Abuse Investigations

Nicole Stednitz

90 OR. L. REV. 1423

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In 2007, the U.S. Department of Health and Human Services estimated that Child Protective Services agencies across the country investigated 3.2 million claims of child abuse or neglect involving approximately 5.8 million children during the fiscal year. Yet, only one quarter of these investigations produced sufficient evidence to substantiate the claim of abuse or neglect. Thus, Child Protective Services (CPS) agencies across the nation investigated millions of individuals for suspected child abuse in 2007 only to eventually determine that insufficient evidence existed to substantiate abuse claims. CPS may find insufficient evidence of child abuse during its investigations for several reasons, oftentimes because parents may be wrongfully accused or evidence of abuse may be particularly difficult to obtain. Yet, in the process of conducting these child abuse investigations, well-intentioned CPS caseworkers might cause real and substantial harm to some families when CPS interferes with familial relationships based on unsubstantiated claims of child abuse.

CPS decision making deserves rigorous and focused examination because of the crucial role that CPS serves, which is to protect the nation's children from neglect and abuse. Families have historically been protected from arbitrary governmental interference and should be able to remain physically together absent good reason, such as neglect or abuse. Child abuse investigations operate in a framework that requires the maintenance of a proper balance of protecting the nation's children from neglect and abuse against protecting the constitutional rights of parents and their children. However, CPS officials sometimes engage in severely intrusive conduct in investigating child abuse or removing children from parental care. The impacts of a child abuse investigation on a family can be very traumatic, especially for the children. For example, there is evidence of a "prevalence of heightened PTS [post traumatic stress] symptoms in a nationally representative sample of children for whom a child welfare investigation occurred and who subsequently were placed in out-of-home care." Even children who were permitted to remain in their original home during a child abuse investigation were more likely to exhibit increased PTS symptoms. Similarly, the impacts of a child abuse investigation can be significant for the parents, in part because of the stigma associated with being the subject of a child abuse investigation or receiving services aimed at decreasing child maltreatment.