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90 OR. L. REV. 359
This Article explores the relationship between one typical form of real estate development finance—the securitized mezzanine loan— and one controversial phenomenon—suburban sprawl. It asks foundational questions about the connection between financial transactions and real-world applications of the capital they raise. In this work, sprawl serves as an example of an environmental consequence of applications of capital raised with a common form of transaction. This Article considers the extent to which commercial finance laws release forceful incentives driven by capital markets upon land use decisions, potentially undermining the collective, morally informed determination such decisions require. It rejects the aesthetic aversion to looking beyond transactional structures in the abstract to consider what results as commercial actors use typical deals to fund typical growth patterns. To the extent that standardized forms of financial transactions fund recurring land uses that many find problematic, the terms and structures of the transactions themselves should be a subject of critical inquiry.
90 OR. L. REV. 413
Companies take advantage of favorable business climates all the time. That’s the nature of business. But when a company helps engineer genocide in order to create that favorable business climate, it should be called to account. This is precisely what the Chinese National Petroleum Corporation (CNPC) has done in the Darfur region of Sudan. This Article calls them to account. No company should be able to get away with assisting in the commission of genocide by hiding behind the legal construct that it is not a natural person.
Justice, Employment, and the Psychological Contract
90 OR. L. REV. 449
The United States has some of the most relaxed employment protections in the world. The American employment regime is centered on the long-standing employment-at-will doctrine, which allows employers to discharge employees at any time and for any reason. No notice is required. Even absurd rationales, such as left- handedness, are permissible grounds for discharge. Although a number of exceptions exist, the core principle enabling broad freedom to discharge remains firmly intact. All fifty states adhere to the employment-at-will principle in some form, and exhortations to overthrow the regime altogether have been unsuccessful. Voluminous scholarship exists evaluating the propriety and effectiveness of the employment-at-will doctrine. The doctrine has produced a deep secondary literature displaying a full spectrum of arguments and theories ranging from those advocating a complete overthrow of the doctrine to others advocating strict enforcement without exception.
Employment Retaliation and the Accident of Text
90 OR. L. REV. 525
Employees have enjoyed remarkable success in front of the Supreme Court on statutory retaliation claims in the past few years. At a time when the success rate of employment discrimination plaintiffs has been, at best, mixed, the Court has consistently interpreted statutory prohibitions on employer retaliation in a broad manner. Heading into its 2010 term, the Court had in nearly every case adopted an interpretation of a statutory antiretaliation provision that favors employees. With its decisions in Thompson v. North American Stainless, LP and Kasten v. Saint- Gobain Performance Plastics Corp., the Court kept the winning streak of retaliation plaintiffs intact.
Leveling the Deference Playing Field
90 OR. L. REV. 583
Courts give federal agencies substantial deference in cases challenging agency action. That deference appropriately credits agency expertise. The military, however, tends to get more deference than other agencies, and not only in cases that directly implicate military expertise, but also in administrative law cases raising constitutional, environmental, and employment issues, among others. Given that the Department of Defense is the largest agency in the federal government, the judicial practice of giving the military excessive deference in administrative law cases has a profound effect on the courts’ ability to fulfill their critical function of ensuring that agencies comply with federal law. I argue here that the judicial practice of giving the military more deference than other agencies in administrative law cases should end. All agencies are entitled to the courts’ respect, but there is no ground for insulating the military from searching judicial review any more than other agencies.