The Lewis & Clark Law Review Online Journal is a companion journal to our print publication.
Volume 24.1, Spring 2020
by Stephen Smith
Disability determinations made by the Social Security Administration’s administrative law judges are subject to judicial review by Article III courts. By statute, these courts apply the “substantial evidence” standard of review on appeal from the agency. The substantial evidence standard is a forgiving one that defers to the findings of the agency. But the Ninth Circuit Court of Appeals has modified this standard. It now reviews certain categories of SSA findings not only for substantial evidence, but for support by “clear and convincing reasons.” This heightened standard of review is facially at odds with the statutorily mandated substantial evidence standard. It also undercuts the principle of deference given to the initial factfinder by the substantial evidence standard of review.
Volume 24.1, Fall 2019
by Brooks Kern
This Article explores the misapplication of Voisine v. United States to the Armed Career Criminal Act (“ACCA”). Under the ACCA, possessing a firearm with three “violent” felonies results in a mandatory sentence enhancement. Courts have faltered, however, by mandating sentence enhancement when the predicate crimes were committed with the mental state of recklessness. Voisine itself had no bearing on the ACCA, but courts have nonetheless extended its reasoning to violent felonies and the ACCA.
As such, this Article argues that reckless offenses should never qualify as predicate offenses under the ACCA because they are not rightly labeled as violent felonies which must be “purposeful, violent, and aggressive.” Public policy and the rule of lenity support the conclusion that sentence enhancements under the ACCA should not be applied when the defendant’s prior convictions were based on reckless conduct. Finally, the ACCA’s sentence enhancement was intended to punish “the very worst offenders with the worst records”— predicate crimes committed with a reckless mens rea are not what Congress had in mind.
Volume 23.4, Fall 2019
by Bruce Lepore
This Article is the second part in a four-part series that examines the scope of rulemaking authority in Oregon’s common interest developments (CIDs). Part I examined the provisions of the Oregon Planned Community Act and the Oregon Condominium Act that govern rulemaking authority. This Article, Part II, examines the methods for determining if a particular rule is within the scope of discretionary authority that a CID’s governing documents confer. This Article attempts to provide an analytical process for determining the validity of such rules by considering the effect of governing document provisions that expressly authorize an association to adopt rules by resolution. Part III will return to a discussion of Oregon’s statutory scheme to explore how its provisions limit that discretionary authority. The fourth and final part of this series will draw upon Parts I, II, and III to make specific, simple, and pragmatic recommendations for best practices that board members in Oregon can employ during the rulemaking process to ensure that their rules are valid.