BarBooks™ to Level Up Soon

Coming Soon: The next level of the BarBooks™ online library.
The interface will be new, but the award-winning library you are familiar with will remain the same. A generous grant from the Professional Liability Fund made this upgrade possible.

BarBooks™ will be moving soon to a new platform. Watch this blog for the launch date.
Active members and subscribers will have access to the same award-winning content, but with more robust search and navigation features, plus a few new bells and whistles. Users will be able to save all or part of a book as a PDF, print selected sections, add their own annotations and notes to books, and download MS Word forms for books that have forms. Early feedback from beta testers has been positive.

More updating options. OSB Legal Publications will be using the annotations feature of this new platform to provide public notes about statutory changes that affect various books. These updates will be an ongoing project, beginning with Torts (OSB Legal Pubs 2012) and Labor and Employment: Private Sector (OSB Legal Pubs 2011).

If you have questions, don’t hesitate to contact us at [email protected].

Oregon Real Estate Deskbook Wins Award

OSB Legal Publications has once again been recognized for our commitment to publishing quality legal resources. We received an award for a book we released in 2015.

The Association for Continuing Legal Education (ACLEA) has selected Oregon Real Estate Deskbook as the winner of its ACLEA’s Best Award of Outstanding Achievement in Publications. A plaque commemorating the award was presented at ACLEA’s Annual Meeting in Seattle, Washington in August and is on display in the lobby of the OSB Center.

Of course, Legal Pubs couldn’t have created this highly informative and innovative book without the help of our many volunteer editorial board members (in bold) and authors: Thomas E. Bahrman, Dustin R. Klinger, Andrew I. Davis, Dina E. Alexander, Peter R. Jarvis, Lee Aronson, Patricia A. Ihnat, C. Cleveland Abbe, Dean P. Gisvold, Jonathan M. Radmacher, Michael G. Magnus, Michelle D. Da Rosa, Robert W. Wilkinson, Amy Heverly, Damien R. Hall, Mark A. Manulik, Paul B. Barton, John B. Benazzi, Rebecca S. Schwarzkopf, Don G. Carter , Jeffrey S. Davis, Benjamin Leedy, Thomas S. Hillier, Christopher R. Ambrose, John A. Lusky, Jonathon L. Goodling, Valerie Athena Tomasi, Marisol Ricoy McAllister, Eleanor A. DuBay, Cody Hoesly, Steven A. Moore, Barry L. Groce, Bennett H. Goldstein, Brent Summers, Jason Alexander, Mike G. Halligan, Rich Canaday, Ryan Nisle, James M. Walker, Charles M. Greeff, Mike Silvey, Jeremy Bader, Thomas S. Smith, Kimberly McCullough, Richard Bailey, Robert W. Wilkinson, Jacob A. Zahniser, P. Stephen Russell III, Rebecca Biermann Tom, Howard M. Feuerstein , Steven F. Hill, Hong N. Huynh, Jennie Bricker, David E. Filippi, Kirk B. Maag, Jerry R. Fish, Eric L. Martin, Christopher C. Criglow, Greg Fullem, Richard Allan, Phillip E. Grillo, Lauren E. Johnson, Phillip C. Querin, William D. Miner, Kathleen L. Wilde, Clifton Molatore, Jeanne Kallage Sinnott, David W. Hercher, John Casey Mills, Teresa H. Pearson, William H. Caffee, Ann E. McQuesten, Jim L. Guse, Ronald A. Shellan, Jeneé (Gifford) Hilliard, John H. Gadon, Adam C. Kobos, Eric J. Kodesch, William F. (Fritz) Paulus, Edwin C. Perry, Neil N. Olsen, Sean M. Mazorol, Jill S. Gelineau, Marilyn Moylan Wall, Harold D. Gillis, Alexandra E. Sosnkowski, Robert R. Griffith, Alec J. Shebiel, and Michael H. McGean. Thanks to all of you for your hard work and dedication to this volunteer effort.

For many years, the Oregon State Bar published a loosely related series of real estate books, each published at different times, with different editorial boards, and with a different focus. In addition, we published a book titled Foreclosing Security Interests, which included real estate foreclosure topics.

In late 2012, we assembled a new editorial board interested in a complete reorganization of the series into a comprehensive multi-volume deskbook designed to meet the evolving needs of Oregon real estate attorneys. The editorial board represented a cross-section of the varied practice areas within real estate law. The board members reviewed all of the existing chapters of the real estate series as well as the Foreclosing Security Interests chapters. They identified topics that were covered in different ways in multiple chapters of the existing series and combined them; identified several topics that were no longer relevant and eliminated those chapters; determined that there were 11 additional topics not covered before that needed to be added; and logically organized the 66 chapters based on the order in which they would likely be encountered by the practitioner.

Oregon Real Estate Deskbook was designed to support Oregon attorneys in their role as legal counselor in real estate transactions where nonlawyers are increasingly playing a leading role. Whether the attorney is a recent law grad or a seasoned attorney, there is something in here for them. This publication was made possible only through the extra­ordinary dedication and gratuitous contribution of time and talent offered by over 90 Oregon attorneys. The accomplished attorneys who drafted each chapter offered their insights—starting with an over­view of the particular practice area and drilling down into the most relevant details that practicing attorneys are likely to encounter in their practice. The authors included forms and practice tips where appropriate. They also provided references to other resources, which are often helpful springboards when greater depth of understanding in a nuanced area of the law is necessary.

Oregon Real Estate Deskbook is available on BarBooks™ to all Oregon Bar members or for purchase in print at the Bar’s online bookstore.

Damages (2016 Revision): Later, but Better

by Dean Land, Legal Publications Attorney Editor

During our editing process here in the OSB Legal Publications Department, it’s not uncommon for the Oregon appellate courts to issue an opinion that affects the book that we’re working on. Sometimes, the effect is limited to a minor issue in one or two chapters. Other times, the effect is much broader (like when State v. Gaines, 346 Or 160 (2009), came down just as we were finishing Interpreting Oregon Law). Although it may delay publication, we’d much rather have such a case come down during the editing process than after we go to print. That way, instead of having a book that is immediately outdated, we can make the required edits and provide the Bar an up-to-date legal resource.

As we approach our deadline for the 2016 edition of Damages, the Oregon Supreme Court has indulged us once again, this time by issuing its opinion in Horton v. OHSU, 359 Or 168 (May 5, 2016). In a lengthy decision (140 pages in the Advance Sheets, including concurring and dissenting opinions), the court altered its interpretation of two provisions of the Oregon Constitution and, in doing so, overruled two significant prior decisions.

Before Horton, the court’s analysis of the Remedy Clause of Article I, section 10, was governed by Smothers v. Gresham Transfer, Inc., 332 Or 83 (2001). Under Smothers, the court asked whether Oregon common law, as it stood in 1857 (when the Oregon Constitution was drafted), recognized a cause of action for the plaintiff’s alleged injury. If so, then the Remedy Clause required a constitutionally adequate remedy for that injury. Horton overruled Smothers and disavowed the bright-line rule that protected common-law causes of action that existed in 1857 but offered no protection for causes of action that did not exist in 1857. In place of the Smothers methodology, the court created a framework that considers “the extent to which the legislature [in altering a common-law remedy] has departed from the common-law model measured against its reasons for doing so.” Horton, 359 Or at 220.

Horton also changed the analysis of Article I, section 17, which protects the right to a jury trial in civil cases. Under Lakin v. Senco Products, Inc., 329 Or 62, modified, 329 Or 369 (1999), if Oregon common law in 1857 recognized a cause of action, then Article I, section 17, prevented the trial court from reducing a jury verdict. Thus statutory caps on damages, such as those of the Oregon Tort Claims Act, were inapplicable to those causes of action. Horton overruled Lakin, deciding instead that Article I, section 17, guarantees only a procedural right to a jury for causes of action recognized by Oregon common law in 1857. It does not impose any substantive limits on the legislature’s authority to limit damages for a claim.

Horton affected seven chapters in Damages and required a bit of scrambling on our part. Our in-house editors read the opinion, revised the affected chapters, and sent them back to the authors and the editorial review board for approval and any additional changes. (One exasperated author commented that Horton came down just as he was beginning to understand Smothers.) In the end, though, the new edition of Damages will be more helpful to practitioners because it includes the changes wrought by Horton. Thanks to all our authors and the editorial review board for the extra effort!

The Remaking of the Oregon Real Estate Deskbook

The editorial board for the upcoming Oregon Real Estate Deskbook has reorganized the five current real estate series books, combining chapters that covered the same topics and planning the addition of new chapters to touch on topics not addressed before.  The editorial board also determined that four chapters from Foreclosing Security Interests more logically fit within a comprehensive real estate deskbook.  The new five-volume book will be available soon, available to purchase as a complete set or as individual volumes.  Watch for information on preordering a copy of this publication to take advantage of an early discount.  The Oregon Real Estate Deskbook is a work in progress, with chapters being posted online as they become ready.

Taking a Look at the Dreaded Bluebook: Part Two

By Ian Pisarcik, Legal Publications Attorney Editor

For part two of our look at some of the more commonly ignored or misinterpreted rules found in The Bluebook: A Uniform System of Citation, I want to address Internet citations. Perhaps more than any other type of citation, Internet citations seem to give attorneys trouble. Part of this is because the general rule dealing with Internet citations (Rule 18) was revised considerably between the eighteenth and nineteenth edition. Another factor is that the Oregon Appellate Courts Style Manual provides little guidance on the topic. With these things in mind, here are four rules to remember:

  1. Parallel Citations (Rule 18.2.3)

    The phrase “available at” should not be used to introduce all Internet citations. Rather, the phrase should be used only to introduce a parallel citation to an Internet source. A parallel citation to an Internet source is appropriate when the identical source is available in a printed medium, but a parallel citation to the Internet source will significantly improve access.

  2. Omitting the Institutional Author (Rule 18.2.2(a))

    The name of the author, when available, should generally be included in an Internet citation. However, when the author is an institutional author, the name of the institutional author should be omitted if domain ownership is clear from the website’s main title. Let’s look at the following citation: Or Dep’t of Fish and Wildlife, Hunter Reporting, Oregon Department of Fish and Wildlife, http://www.dfw.state.or.us/resources/licenses_regs/ (last visited Dec. 19, 2014). In this example, the domain ownership (Oregon Department of Fish and Wildlife) is clear from the website’s main title (Oregon Department of Fish and Wildlife) and thus the name of the institutional author should be omitted. Therefore, the citation becomes: Hunter Reporting, Oregon Department of Fish and Wildlife, http://www.dfw.state.or.us/resources/licenses_regs/ (last visited Dec. 19, 2014).

  3. Abbreviations (Rule 18.2.2(a), Rule 18.2.2(b)(i), Rule 15.1(d))

    In the previous example, the institutional author was abbreviated as “Or Dep’t of Fish and Wildlife,” yet the website’s main title remained “Oregon Department of Fish and Wildlife.” This is because the name of an institutional author should be abbreviated using tables T6 and T10, whereas main page titles should be abbreviated using table T13.

  4. Date (Rule 18.2.2(c))

    According to a 2002 study of federal appellate opinions, 84.6 percent of Internet citations in cases from 1997 were inaccessible in 2002; moreover, 34 percent of citations in cases from 2001 were already inaccessible by 2002. Because of this, and because websites are frequently being modified, it is important for an attorney to provide the date in an Internet citation. The date should be included after the main page title if the website contains a clear date associated with the cited material. If the website does not contain such a date, the date the website was last visited should be placed in a parenthetical after the URL. For example: Forest Land Protection Program, Oregon Department of Land Conservation and Development, www.oregon.gov/LCD/pages/forlandprot.aspx#Forest_Land_Protection (last visited Dec. 19, 2014).

Taking a Look at the Dreaded Bluebook

By Ian Pisarcik, Legal Publications Attorney Editor

I have a confession to make: I like The Bluebook: A Uniform System of Citation. I actually think it’s well organized for the amount of information it contains, and I think there are good reasons behind many of the rules. Mary Whisner, a reference librarian at the University of Washington School of Law, provides a good example:

Most law reviews are paginated consecutively through a volume, so we can cite an article unambiguously by volume and page: 79 J.Name 36 (2003). But if a journal or magazine starts numbering with page one each issue within a volume, then the rule has to be different. Volume 79 of a given journal might have twelve different articles starting on page 36, so it makes sense instead to cite journals that are not paginated consecutively with the format: J.Name, June 2003, at 36.

I even sort of enjoy thumbing through The Bluebook. But, I realize most attorneys aren’t as nerdy enamored with The Bluebook as I am. I would wager that most attorneys are more likely to recognize the sentiments of Judge Richard Posner:

Needless to say, I have not read the nineteenth edition. I have dipped into it, much as one might dip one’s toes in a pail of freezing water. I am put in mind of Mr. Kurtz’s dying words in Heart of Darkness¾‘The horror! The horror!’¾and am tempted to end there.

Nevertheless, in the interest of making The Bluebook a more familiar (if not a more comfortable) place to visit, I thought I would take the next couple posts to point out a few rules I commonly see ignored or misinterpreted.

  1. Omissions (Rule 5.3)

    Omitting words when using quoted language can be tricky. Thus, attorneys should review Rule 5.3. In particular, attorneys should keep in mind that ellipsis should never be used when individual words are merely altered. Moreover, when omitting the end of a sentence, the punctuation at the end of the sentence must still follow the ellipses. This means that when the sentence ends in a period, the attorney will need to insert a total of four periods (e.g., “If land becomes disqualified on or after July 1, it will be assessed as farmland . . . .”).

  2. Introductory signals (Rule 1.3)

    When using more than one signal in a citation string, signals of the same type¾supportive, comparative, contradictory, or background¾must be strung together within a single citation sentence and separated by semicolons. On the other hand, signals of different types must be grouped in different citation sentences. Here’s an example: See Hope Vill., Inc. v. Dep’t of Revenue, 17 OTR 370 (2004); cf. Polk Cnty. v State Dep’t of Revenue, 14 OTR 566 (1999). See generally Gangle v. Dep’t of Revenue, 13 OTR 343 (1995). But see Catherine’s Residence, Inc. v. Dep’t of Revenue, State of Or, 14 OTR 500, 502 (1998).

  3. Signals as verbs (Rule 2.1(d))

    The word “see” should be italicized when it is being used as a signal, but not when it is part of a sentence (e.g., “For further discussion of special assessments, see chapter 57.”)

More next week . . .

Attorney Fees Provide Fair Access to Courts

Statutory and contractual rules for the award of attorney fees are important provisions that help ensure that parties have fair access to the judicial system. To help lawyers navigate the many rules and regulations related to attorney fees, Legal Publications will be publishing a companion set: Oregon Attorney Fee Codebook and Oregon Attorney Fee Compilation.

This article includes an excerpt of one of the chapters that is excerpted in the Compilation along with the statutes cited in the excerpt as they will appear in the Codebook. For a more thorough discussion of the topic and to read cross-referenced sections, you can check out Oregon Civil Pleading and Practice on BarBooks™ or pre-order the Codebook and Compilation.

Compilation excerpt:

Oregon Civil Pleading and Practice, Chapter 43. Attorney Fees, Cost Bills, and ORCP 17 Sanctions, by Timothy S. DeJong and Keil M. Mueller.

§43.1    ATTORNEY FEES

§43.1-1 Availability of Attorney Fees

In Oregon, the general rule is that attorney fees are available only when expressly authorized by contract or statute. Swett v. Bradbury, 335 Or 378, 381, 67 P3d 391 (2003). But see §43.1-1(f) regarding a court’s “inherent power” to award attorney fees in certain cases.

When preparing a pleading, the lawyer should determine whether any basis for claiming attorney fees exists under contract or in the substantive law. For example, attorney fees are available in civil rights actions under 42 USC §1983 (see 42 USC §1988(b)), unlawful trade practices claims under ORS 646.638(3), and certain landlord-tenant actions under ORS 90.510(8). ORS chapter 20 also provides for the availability of attorney fees in a variety of types of actions.

Some statutes require an award of attorney fees to the prevailing party in certain types of actions. See §43.1-1(a); see also §43.1-2 regarding identifying the prevailing party. Other statutes give the court discretion to award attorney fees in some kinds of actions. See §43.1-1(b). Attorney fees are also recoverable in actions based on a contract that specifically provides for them. See §43.1-1(e).

Practice Tip: The failure to assert a right to attorney fees at the earliest possibility may prevent a party from recovering attorney fees. See §43.1-3(a). Therefore, it is crucial for the lawyer to determine whether attorney fees are available at the outset of every case.

Attorney fees are also allowed when the court finds that the opposing party had “no objectively reasonable basis” for asserting a claim, defense, or ground for appeal. ORS 20.105(1); see §43.1-1(c).

Also, the Uniform Trial Court Rules include provisions relating to attorney fees. See §43.1-1(d).

Note: Pro se litigants typically may not recover attorney fees. Pendell v. Department of Revenue, 315 Or 608, 616, 847 P2d 846 (1993); Parquit Corp. v. Ross, 273 Or 900, 902, 543 P2d 1070 (1975). However, an attorney who represents him- or herself may recover “the reasonable value of the legal services that [the attorney] performed on [his or her] own behalf.” Colby v. Gunson, 349 Or 1, 9, 238 P3d 374 (2010) (interpreting ORS 192.490(3), which provides that any person who prevails in a suit seeking the right to inspect or to receive a copy of a public record is entitled to reasonable attorney fees).

Note: ORS 20.125 provides that the court “shall” assess attorney fees and costs against a lawyer whose “deliberate misconduct” causes a mistrial.  

* * * * *

Codebook excerpt:

Note: All statutes updated through 2014 legislative session.

Ch. 20 Attorney Fees, Costs and Disbursements
PROCEDURE IN CIVIL PROCEEDINGS
ATTORNEY FEES; EXPERT WITNESS FEES

20.105 Attorney fees where party disobeys court order or asserts claim, defense or ground for appeal without objectively reasonable basis. (1) In any civil action, suit or other proceeding in a circuit court or the Oregon Tax Court, or in any civil appeal to or review by the Court of Appeals or Supreme Court, the court shall award reasonable attorney fees to a party against whom a claim, defense or ground for appeal or review is asserted, if that party is a prevailing party in the proceeding and to be paid by the party asserting the claim, defense or ground, upon a finding by the court that the party willfully disobeyed a court order or that there was no objectively reasonable basis for asserting the claim, defense or ground for appeal.

(2) All attorney fees paid to any agency of the state under this section shall be deposited to the credit of the agency’s appropriation or cash account from which the costs and expenses of the proceeding were paid or incurred. If the agency obtained an Emergency Board allocation to pay costs and expenses of the proceeding, to that extent the attorney fees shall be deposited in the General Fund available for general governmental expenses. [1983 c.763 §57; 1995 c.618 §2]

OTHER COSTS

      20.125 Assessment of costs and attorney fees against attorney causing mistrial. In the case of a mistrial in a civil or criminal action, if the court determines that the mistrial was caused by the deliberate misconduct of an attorney, the court, upon motion by the opposing party or upon motion of the court, shall assess against the attorney causing the mistrial costs and disbursements, as defined in ORCP 68, and reasonable attorney fees incurred by the opposing party as a result of the misconduct. [1985 c.556 §1; 1995 c.618 §3]

Chapter 90 — Residential Landlord and Tenant
MANUFACTURED DWELLING AND FLOATING HOME SPACES

      90.510 Statement of policy; rental agreement; rules and regulations; remedies. . . . 
(8) Intentional and deliberate failure of the landlord to comply with subsections (1) to (3) of this section is cause for suit or action to remedy the violation or to recover actual damages. The prevailing party is entitled to reasonable attorney fees and court costs.

Chapter 192 — Records; Public Reports and Meetings
INSPECTION OF PUBLIC RECORDS

192.490 Court authority in reviewing action denying right to inspect public records; docketing; costs and attorney fees. . .
      (3) If a person seeking the right to inspect or to receive a copy of a public record prevails in the suit, the person shall be awarded costs and disbursements and reasonable attorney fees at trial and on appeal. If the person prevails in part, the court may in its discretion award the person costs and disbursements and reasonable attorney fees at trial and on appeal, or an appropriate portion thereof. If the state agency failed to comply with the Attorney General’s order in full and did not issue a notice of intention to institute proceedings pursuant to ORS 192.450 (2) within seven days after issuance of the order, or did not institute the proceedings within seven days after issuance of the notice, the petitioner shall be awarded costs of suit at the trial level and reasonable attorney fees regardless of which party instituted the suit and regardless of which party prevailed therein. [1973 c.794 §9; 1975 c.308 §3; 1981 c.897 §40]

Chapter 646 — Trade Practices and Antitrust Regulation
UNLAWFUL TRADE PRACTICES

      646.638 Civil action by private party; damages; attorney fees; effect of prior injunction; time for commencing action; counterclaim; class actions. . .
(3) The court may award reasonable attorney fees and costs at trial and on appeal to a prevailing plaintiff in an action under this section. The court may award reasonable attorney fees and costs at trial and on appeal to a prevailing defendant only if the court finds that an objectively reasonable basis for bringing the action or asserting the ground for appeal did not exist.

Oregon Statutory Time Limitations Now Available

The fifth edition of Oregon Statutory Time Limitations, published as a joint project of the Professional Liability Fund and OSB Legal Publications, is now available on the BarBooks™ online library. A hard copy will be provided to all PLF-covered attorneys by request. Keep an eye on your email inbox for an email from the PLF with information on how to obtain a copy.

The OSB Professional Liability Fund and OSB Legal Publications gratefully acknowledge the Editorial Review Board for their guidance and oversight in reorganizing, reviewing, and editing this book. Editorial Review Board members are Jeffrey M. Cheyne, Craig Cowley, Hon. Joel DeVore, Bruce C. Hamlin, Richard F. Liebman, Lisa J. Ludwig, Robert J. McGaughey, Alan L. Mitchell, Phillip C. Querin, Janet Schroer, Richard A. Slottee, and Brent G. Summers. We also acknowledge the many authors for their diligence and dedication in researching and writing their individual chapters.

This completely reorganized handbook has been expanded and now includes treatment of the following practice areas:

  1. Alternative Dispute Resolution
  2. Civil Procedure and Litigation
  3. Criminal Law
  4. Family and Juvenile
  5. Appellate Practice and Procedure; Writs
  6. Elder Law; Survival of Actions; Decedents’ Estates; Trusts
  7. Personal Injury and Property Damage
  8. Employment Law and Civil Rights
  9. Business Organizations
  10. Business Litigation
  11. Debtor-Creditor Issues; Unclaimed Property; Secured Transactions; Creditors’ Rights in Bankruptcy
  12. Consumer Law
  13. Residential Trust Deeds and Mortgages; Foreclosure
  14. Issues Arising under Contracts and Articles 2, 3, and 4 of the Uniform Commercial Code
  15. Real Estate and Landlord-Tenant Law
  16. Insurance
  17. Construction Law
  18. Judgments and Liens

The inclusion of a comprehensive index and tables of cases and statutes makes this 2014 edition of Oregon Statutory Time Limitations a useful and accessible handbook.

This handbook is a reference guide to many of the statutes, cases, and procedural rules containing time limitations that are relevant to the practice of law. Although the material in this handbook has been carefully researched and reviewed, it should not be relied on as a substitute for full examination of the statutes and cases on any issue. Readers should conduct their own appropriate legal research and consult original sources of authority.

30 Years of Legal Editing

By Cheryl McCord, Legal Publications Attorney Editor

I am a legal editor. For over 30 years, I have edited legal resources used and relied upon by Oregon lawyers. Over the years, I have seen a lot of mind-boggling changes in the editorial process. Frankly, probably because of my advancing age, it’s difficult for me to remember “the way we were.” I will, however, make a feeble attempt to do so.

The Old Days

When I began my career as a legal editor, we paid law students to check the citations in chapters (e.g., running heads for case names) and to alert us to issues that required further analysis. The clerks came to our office to check out chapters (which the authors had sent to us by Pony Express) and then they went to the law library to work on them. They would have to run around the library to get—and put back—multitudes of volumes of reporters, treatises, statutory compilations, and other resources, and then physically turn pages to check an author’s citations. (They had to be physically fit, like firefighters.) Using red ink pens, they made changes and notes on the manuscript pages. After completing a chapter, the clerk returned the manuscript to a legal editor.

The editor then made editorial changes on that same manuscript using a different-colored ink pen (I preferred purple). The editor looked at Oregon cases and statutes while reviewing the legal accuracy of the author’s statements. Inserts and revisions that were too lengthy to interline on the manuscript were hand-written (often illegibly) on separate pieces of paper and attached to the relevant pages. The resulting dog-eared and wrinkled product became a collage of different colors, arrows, doodles (flowers were my specialty), editorial symbols, and materials (including coffee stains, remnants of what the law clerk had for lunch, and other unknown substances—I’m sure the brown smudges were chocolate).

Then our secretary typed the inserts and the messy pages, and used the cut-and-paste method to put the edited manuscript together. This was a very time-consuming (and sloppy) process. We then photocopied this conglomeration to send it to the author, who reviewed our edits and made additional marks on the pages. The chapter was then ready to be sent to an outside typesetter. When the print version was returned to us, we had to proofread the manuscript carefully, line by line. AARRGGHH!!

One thing I’ve learned over the years is that everything is always evolving into something else. Like everything in life, our editorial process has undergone changes that have been so gradual and imperceptible that we didn’t even know they were occurring (such as our hair color—mine is now white; when did THAT happen?).

The Future Is Here

With the invention of personal computers, we began to type our own inserts, but our word-processing specialist had to incorporate the inserts and hand-written editorial changes into the digital version of the chapter. Then, with the advent of online legal resources, we attorney editors enjoyed great access to many different kinds of legal materials and began doing our own cite-checking online. It was amazing—we could sit at our desks and visit many law libraries without having to jump up and down and run down the aisles between bookshelves! We thought that our editorial lives couldn’t get much better than this. But that evolutionary process kept on truckin’.

And then, lo and behold, we discovered digital editing! (Yep, just like Al Gore invented the Internet.) It was miraculous! (Well, okay, I have to admit that I resisted this change. To begin digital editing in MS Word seemed overwhelming—it was so different and revolutionary and there was so much to learn! It’s harder for my old eyes to read words on a computer screen than words on paper. I even questioned my inner being—was I an attorney editor or a word-processing non-specialist? Woe is me.)

The evolution of our editorial process has given life to a better world of editing. I believe that digital editing, coupled with online legal researching by our attorney editors, have improved the quality and accuracy of our publications. We now even have dual computer monitors to enhance the process (one screen for the chapter we’re editing, and one screen for online legal resources).

Digital editing is also a huge benefit to our volunteer authors. The track-changes feature of digital editing in MS Word enables them to readily see where any changes were made to the chapter. (Deletions are noted in boxes in the left-hand margin and additions are marked in red with a double underline.) Rather than destroying trees in order to mail hard copies of edited chapters to authors, we now e-mail chapters to them. Authors seem to appreciate receiving an electronic version of their chapter with tracked changes; it saves them time in reviewing our work.

Some Things Never Change

Although the manner in which I accomplish the finished product has changed over the years, my essential role as a legal editor has remained the same. Editing a legal manuscript involves not only reviewing the substantive accuracy of the author’s work, but also checking the work for spelling, grammar, consistency, and conformity to an in-house style manual. The legal editor is also the person who reviews the chapter from the reader’s perspective, ensuring that the reader will understand what the author has written. An important part of the legal editor’s job is to determine whether the author has left any unanswered questions in the reader’s mind. The editor serves as a link between the authors (who are usually quite knowledgeable about the subject matter) and the readers (who may not be).

As I said before, everything is always evolving into something else. What will attorney editors be like in the future? (I know I’ll be even older.) What if attorney editors evolve into a new species with computer-like brains so that they can do editing and cite-checking in their own minds? At least that would make it easier to work from home.

Free Speech in Oregon

In celebration of Oregon Constitutional Law receiving the ACLEA Award of Outstanding Achievement in Publications, we decided to share an excerpt from that award-winning book. This excerpt is from chapter 3, Article I, Section 8, Free Speech Writ Large, by Robert M. Atkinson.  For more on this topic you can purchase a copy of Oregon Constitutional Law from the OSB Online Bookstore or log in to BarBooks™.

§3.1 INTRODUCTION

The Oregon Supreme Court’s free-speech jurisprudence under Article I, section 8, of the Oregon Constitution is unique in its analysis. Consequently, federal law of free expression or the law of other jurisdictions on that subject is unlikely to be useful in attempting to apply the Oregon Constitution’s provision. For example, federal law distinguishes among differing kinds of expression based on their content. Thus, commercial speech gets less federal constitutional protection than political expression. Compare Boos v. Barry, 485 US 312, 321, 108 S Ct 1157, 99 L Ed2d 333 (1988) (political speech), with Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 US 557, 562–63, 100 S Ct 2343, 65 L Ed2d 341 (1980) (commercial speech). Under the Oregon Constitution, by contrast, all expression is equal and equally protected. Bank of Oregon v. Indep. News, Inc., 298 Or 434, 439–40, 693 P2d 35 (1985). In general, Oregon’s free speech jurisprudence is uniquely protective of expression of all kinds. Indeed, it is no exaggeration to state that—with very few and limited exceptions, which are discussed in §§ 3.4-1 to 3.4-3—all speech and expressive conduct are constitutionally protected.

The basic outline of the analysis is readily described, even if not always easily applied. But difficult questions—such as what conduct is sufficiently expressive to warrant protection—remain unresolved. This chapter is intended as a doorway into this important area. To avoid excessive length and paralyzing detail, it sticks, for the most part, to the well-traveled roads, leaving some interesting byways unexplored.

§3.2 TEXT

Article I, section 8, of the Oregon Constitution states: “No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”

§ 3.3 BASIC ANALYSIS

The genesis of the modern construction of this provision is found in State v. Robertson, 293 Or 402, 649 P2d 569 (1982). Any lawyer seeking to understand and apply Article I, section 8, must be familiar with that case. The Robertson analysis categorizes laws as falling within one of three levels or categories. Vannatta v. Oregon Gov’t Ethics Comm’n, 347 Or 449, 455–56, 222 P3d 1077 (2009) (Vannatta II); City of Eugene v. Miller, 318 Or 480, 488, 871 P2d 454 (1994); State v. Plowman, 314 Or 157, 164, 838 P2d 558 (1992). Those categories focus on the terms in which the law in question is written and whether those terms refer directly to expression.

§3.3-1 Laws Focusing on the Content of Expression

At the first level of the analysis set forth in State v. Robertson, 293 Or 402, 649 P2d 569 (1982), are laws that focus on the content of speech or writing and are written in terms directed to the substance of any opinion or any subject of communication. City of Eugene v. Miller, 318 Or 480, 488, 871 P2d 454 (1994); State v. Plowman, 314 Or 157, 164, 838 P2d 558 (1992). Laws written in those terms violate Article I, section 8, “on their face” unless the scope of the restraint is confined within one of the few exceptions discussed in §§ 3.4-1 to 3.4-3. Miller, 318 Or at 495.

To illustrate, imagine that the legislature sought to protect the Oregon Supreme Court from having to decide whether a claim of error on appeal was preserved in the trial court. The most direct way to write such a law would be to state: “Do not discuss preservation of error in the Supreme Court.” That hypothetical law is quite obviously directed by its terms at the content of expression—discussions of preservation—because the statute’s text specifies what speech is forbidden. That law would, therefore, be unconstitutional on its face unless it came within one of the exceptions. The same fate would await laws specifying certain disfavored words, rather than—as in the example above—general content, and making it a crime to utter them.

§.3-2 Laws Focusing on Harms or Effects, but Directed by Their Terms at Expression

The second level of analysis set forth in State v. Robertson, 293 Or 402, 649 P2d 569 (1982), consists of laws that focus on forbidden harms or effects but, by their terms, expressly prohibit expression used to achieve those effects. To return to the example in § 3.3-1, a second approach to preventing discussion of preservation might state: “Do not annoy the Oregon Supreme Court by discussing preservation of error.” That hypothetical law is addressed by its terms to a harm or effect—annoying the court. But those terms also specify expression—discussion of preservation—as a means of bringing about that forbidden effect.

Laws in this category are analyzed for overbreadth. In very general terms, a law is overbroad when and to the extent that it purports to prohibit or regulate constitutionally protected expression. For example, a statute that prohibited alarming a person by threatening adverse consequences if the person performs some act focuses on harm—causing alarm—and specifies speech as a means of achieving that harm. That statute is overbroad to the extent that it would prohibit, for example, a physician telling a patient that she will increase her chances of having a heart attack if she does not quit smoking. See State v. Robertson, 293 Or 402, 410, 649 P2d 569 (1982);State v. Garcias, 296 Or 688, 698–99, 699 n 10, 679 P2d 1354 (1984). The decisive question would be whether the speech specified in the statute—returning to the prior example, discussion of preservation—is constitutionally protected. If it is, then the statute is overbroad because, and to the extent that, it seeks to restrain constitutionally protected speech; speech that may not be restrained.

Although the question of whether a law is directed at a harm or effect is generally determined by the law’s text, that is not inevitably the case. Rather, the court will consider the statute’s context to determine whether “the actual focus of the enactment is on an effect or harm that may be proscribed, rather than on the substance of the communication itself.” State v. Stoneman, 323 Or 536, 543, 920 P2d 535 (1996) (emphasis by the court).

§3.3-3 Laws That, Although They Are Not Directed at Expression by Their Terms, May Be Applied to Expression

The third level of the analysis set forth in State v. Robertson, 293 Or 402, 649 P2d 569 (1982), consists of laws that focus on forbidden effects without referring to expression at all. These “speech-neutral” laws cannot be challenged facially. State v. Illig-Renn, 341 Or 228, 234, 142 P3d 62 (2006). Rather, they are analyzed to determine whether the law was applied in the particular circumstances before the court so that it burdened protected expression. Because these challenges are generally based on the application of the law rather than its text, they tend to be addressed to actions of the executive rather than the legislative branch. Thus, the speaker challenging the law would be asserting that, although the law itself may be constitutional as written, the government exceeded the law’s proper scope by applying it to his or her speech. That may occur, for example, if the regulator simply misconstrues the scope of the law or applies it in a manner that is not speech-neutral. See City of Eugene v. Lincoln, 183 Or App 36, 43, 50 P3d 1253 (2002).

Here, our exemplary law (see §§ 3.3-1 to 3.3-2) would simply state: “Do not annoy the Oregon Supreme Court.” A person prosecuted criminally or subjected to civil sanctions for violating this law by addressing preservation of error would have to argue that the statute was unconstitutional as applied to his or her speech because, the person would claim, speech about preservation of error is constitutionally protected in the context of an appeal. If the person is right, the law is unconstitutional as applied to that particular expression. City of Eugene v. Miller, 318 Or 480, 488–90, 871 P2d 454 (1994), illustrates the application and analysis.