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Lewis & Clark Law Review

The Lewis & Clark Law Review Online Journal is a companion journal to our print publication.

 

Summer 2019

THE DEAD HAND OF THE PAST IN OREGON CHOICE OF LAW

by John T. Parry

This Essay considers the reception of Oregon’s choice-of-law statutes in Oregon state and federal court.

First, this Essay discusses the reception of the choice-of-law-statutes for torts and contracts. For many years, federal courts ignored these statutes and continued to apply superseded common law choice-of-law doctrine. Published state court opinions typically misapply the statutes, perhaps on the assumption that they simply codified the common law, when in fact the statutes are a deliberate departure from the common law. To make matters worse, several state and federal court decisions explicitly use common law doctrines as default rules when applying the statutes, even though the statutes reject the common law approach entirely.

Next, this Essay examines Oregon’s difficult relationship with the Uniform Conflict of Laws-Limitations Act (UCLLA). Most state and federal court decisions that apply Oregon’s version of the UCLLA do so badly, with little or no understanding of how the statute is supposed to work.

The central argument of this Essay is that Oregon’s state and federal courts should pay better attention to the statutes that they are applying. Courts should be applying these statutes in a manner that is faithful to their text and purpose. Proper application of the statutes will require judges to depart from older and ingrained habits of choice-of-law thinking and to give up the freewheeling discretion associated with those habits.

RECORD LABEL AS MANAGER: AN UNINTENDED AGENCY

by Kellen Brockman

At the turn of the 21st century, the online file sharing service Napster shook the foundation of the recorded music industry by providing music for free over the Internet. In order to survive, Record Labels had to find new sources of revenue to replace the loss of revenue from physical music sales. One of those new sources affected how Labels earned revenue by expanding Labels’ contractual relationships with their artists. Standard Label agreements now give Labels an active or passive interest in nearly every aspect of an artist’s career instead of only in their sound recordings.

This new relationship transforms the role of a Label in an artist’s career into something similar to the traditional relationship between a personal manager and artist. This Article examines whether this relationship could be one of agency, which includes a fiduciary relationship. If a court were to find that such a relationship exists, this Article argues that it should give deference to the terms to which the parties agreed, including the shaping or disclaiming of any fiduciary duties. Additionally, a court should follow the cases that have evaluated a potential breach of a fiduciary duty through the lens of the unique nature of the music industry and its customs, which serve to benefit the artist,Label, and music listeners. 

Lewis & Clark Law Review

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