Tonkon Torp litigator Michael Willes authored an article inspired by the recent decision in Horton v. Oregon Health and Sciences University for the Fall 2018 issue of the Oregon State Bar Litigation Journal:
Litigators throughout the state have taken interest in Horton v. Oregon Health and Sciences University. The decision reshaped the legal landscape of damages limitations and the right to have a jury resolve issues of fact in civil cases. In the wake of the court’s opinion in Bagley v. Mt. Bachelor, Inc., I wrote a pair of articles criticizing the court’s implementation of a totality-of-the circumstances balancing test for determining the unconscionability of contracts. H. L. A. Hart has noted that this type of discretion has “no clear principles or rules determining the relative importance of . . . constituent values or, where they conflict, how compromise should be made between them.” To some extent, the Horton decision continued the Oregon Supreme Court’s embrace of subjective—perhaps unguided—analysis, with respect to its treatment of the remedy clause and its own power to overrule constitutional precedent. “Balancing” one undefined set of factors against another affords the court immense flexibility at the expense of stability and its own legitimacy.
To read Michael's full discussion of Stare Decisis at the Oregon Supreme Court, download the pdf below.
