Oregon State Bar Bulletin — NOVEMBER 2005


Preventing Pollution
Antonia Giedwoyn’s article on fluoride litigation ("Martin Turns 50," August/September 2005) brings back strong memories. I spent more than two decades litigating the toxic effects of fluorides and other pollutants from aluminum plants and other industrial sources. From the consent decree in Renken v. Harvey Aluminum, 226 F.Supp. 169 (D OR, 1963), to the punitive damage award in Orchard View Farms v. Martin Marietta Aluminum, 500 F.Supp. 984 (D OR, 1980), the claims spanned pollution point sources in Washington, Montana, Ohio, New York, Maryland and Texas, although the claims originated in Oregon. So did the remedies.

It was not necessary to litigate all of the dozens of claims filed or the additional dozens of claims that never needed to be filed after settlements and after imaginative, ground-breaking procedures were devised to prevent the emissions of the toxins, indeed, to recycle them to the benefit of the industrial users. Although the claimants started out as Daniel in the lion’s den, eventually they made common cause, and the lion lay down with the lamb, with none to make them afraid. Then, as now, we came to find that pollution problems were preventable, which is much preferable to punishing the polluter after the victim has suffered. Then, as now, pollution prevention is a cost of doing business — for society.

Arden F. Shenker

Orwell Saw It Coming
Regarding Mr. Adamson’s "Parting Thoughts" column ("Would That Make It So?," October 2005): We have cameras in our cities and taxicabs, "On Star" can monitor conversations in our cars, and black boxes that can reconstruct our driving just before a collision — all are standard equipment. Orwell foresaw this future and tried to warn us. Mr. Adamson and others like him are hoping to lead us to a place where privacy is only a memory. What baffles me is why you would print an article attacking freedom from government surveillance unsupported by anything other than "One can only suppose...."? I, for one, can only suppose that the framers of our Constitution would be shocked to learn that the federal government would someday criminalize what plants you can grow and consume on your own land. See Gonzalez v. Raich. Put that in your Constitutional pipe and smoke it, Mr. Adamson; you might yet see a penumbra.

David C. Degner

Penumbra? Of Course
I read with interest Barry Adamson’s Parting Thoughts column (October 2005). Since Mr. Adamson seems to be a strict constructionist, let’s see whether the words of the Bill of Rights and the 14th Amendment allow for a right of privacy "emanating from the penumbra."

The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." The Third Amendment prohibits the quartering of soldiers "in any house, without the consent of the owner." The First Amendment allows for freedom of speech and the right of the people to peaceably assemble.

The Ninth and 10th amendments guarantee inter alia that the people shall retain all rights not enumerated in the Constitution.

Perhaps it is the Ninth and 10th amendments with their rights retained by the people, which contain these "emanating penumbra" so bothersome to Mr. Adamson.

Finally, the Fifth and 14th amendments guarantee that no person shall be deprived of life, liberty or property without due process of law.

Let’s look at the words encompassed by these amendments: Speech, assembly, secure in their persons, houses, papers and effects, rights retain by the people and liberty.

The definition of all these terms in 1787, to some extent, overlap or encompass the definition of "privacy," and hence, the right of privacy.

There are other "liberty interests" emanating from the "penumbra" of the Constitution, which Mr. Adamsom evidently might not see with his own eyes, as well: take the "liberty interest" known as the right of citizens to travel, for example.

Perhaps if Mr. Adamson were asked if a "liberty interest" guaranteed by the Constitution included the right to travel in this country, his answer might be: "Hmmm…I’ll have to get back to you on that."

Philip F. Schuster II

As my ADHD curse disallows me from breathing and thinking at the same time, I hastily allowed a minor flaw to enter my recent submittal (October 2005): Indeed, the Constitution has 27 (XXVII) amendments, not 26 (XXVI) … and I full well knew it. I just wasn’t sufficiently careful; I allowed that error to creep in. I knew that the states ratified the 27th Amendment in 1992 (actually the second of the 12 proposed amendments that Congress sent to the states in 1789, and one of the two that the states rejected during the ratification process), as I had just finished writing about that precise event in a different project.

But those Roman numerals can be slippery little devils, and my Latin has never been particularly strong.

Barry Adamson
Lake Oswego

No Wonder
I seem to have misunderstood the OSB’s stance on military ads. I had thought that the bar was taking the position that an attraction to members of the same sex does not affect one’s ability to practice law, and that the bar was choosing not to promote employers who feel otherwise. That seemed perfectly reasonable, even admirable, so I was naturally puzzled to see the letter stating that the bar’s "position on homosexuality" was offensive.

But then I saw the next letter, which informed me that the bar actually supports terrorism and wants to "allow a relatively few homosexuals to display their unique sexual prowess on the disturbed military." I must tell you that, if the bar is taking the position that soldiers should be forced to watch live gay sex shows while on duty, it’s no wonder people are so upset (and it’s no wonder that the soldiers are so disturbed). Perhaps the bar should reconsider this position.

Sheila H. Potter

Stand for Diversity
The Bulletin has now printed five letters decrying the Board of Governors’ decision to affirm the bar’s diversity policy. That policy prohibits the bar from discriminating. Surely, members of the bar support efforts against discrimination. One effect of the diversity policy is to prevent the Bulletin from accepting advertisements from organizations that discriminate. There is no question that the military discriminates against gays and lesbians, despite the fact that many gays and lesbians serve honorably in the Oregon National Guard and all of our military services, as do many other members of the bar. We as members of the bar should be proud to take a stand in favor of diversity and against discrimination by even our most hallowed institutions. I am proud that the Board of Governors decided to keep our diversity policy universal. For, as President Kennedy so aptly put it, "If we cannot now end our differences, at least we can help make the world safe for diversity."

Phillip M. Bender

Policy is Extreme
Despite all the good work the OSB does, I find the mandatory sexual orientation policy oppressive and believe it will lead to the OSB’s eventual undoing. Clearly the Board of Governors doesn’t support even a neutral position on homosexuality but mandates it be accepted as right and true.

The board’s decision to ban military advertising is my case in point. It seems it’s not good enough that someone might choose to remain neutral and say, "Whatever. Sexuality is a private matter between consenting adults so just keep it to yourself." Otherwise, the military’s utterly innocuous "Don’t Ask, Don’t Tell" policy would be adequate for the board. Obviously, the board’s social policy agenda is to require that we all accept homosexuality as right and good and true.

Until this policy is changed, I cannot support the OSB or any of its seemingly innocuous activities. Last week my husband promoted the OSB’s Tel-Law program on his weekly radio show. Afterward, I asked him not to do this again because I do not want anyone in our community to think we are endorsing the OSB or its liberal social policy agenda.

I urge the Board of Governors to amend the OSB’s requirement that all members of the OSB (or anyone connected, including advertisers) embrace the OSB’s extreme social policy that homosexuality is right and true and correct. Please, at a minimum, allow for a neutral "keep all sexual matters to yourself" view because it’s really just not appropriate for civilized people in a professional setting to focus on a person’s sexuality or other matters of such private concern anyway. Ever.

Other outstanding work the OSB, its affiliates and staff do is tainted by the board’s extreme position regarding homosexuality. Please, I urge the board to immediately amend it.

Laura Cogdell

Insist on Nondiscrimination
I applaud the Oregon State Bar’s decision to ban military advertising in the Bulletin as a consequence of the military’s discrimination against gays and lesbians. The bar should insist upon strict "no discrimination" with regard to any and all members of our society. The notion that such a policy is antipatriotic or fails to support the troops is unfortunate and misguided.

Jon Friedman

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