the court immense flexibility at the expense of stability and its own legitimacy.

The Horton Decision In Horton, the plaintiff’s six-year-old son underwent surgery at Oregon Health and Sciences University (“OHSU”)—a state corporation—where he suffered damage to the blood vessels sustaining his liver.3 Remedying that mistake required a liver transplant, various surgeries, and lifetime monitoring for further complications.4 The defendant physician—a state employee—and the hospital admitted liability but contested the amount in controversy.5 Following the damages trial, the jury awarded $6 million and $6,071,190.38 in noneconomic and economic dam- ages, respectively.6 Following trial, the defendants moved to cap total damages at $3 million pursuant to the Oregon Tort Claims Act.7 OHSU won, but the doctor lost. The trial court held that “because sovereign immunity applies to OHSU, the legislature constitutionally may limit the damages for which OHSU is liable.”8 The defendant physician argued that he too could seek protection under the umbrella of “discretionary immunity” and “that, because he would not have been liable for any damages in 1857 for his negligence, the Tort Claims Act limit [could] be applied constitutionally to him.”9 The trial court, relying on Smothers v. Gresham Transfer, Inc., a 2001 Oregon Supreme Court opinion, rejected that argument, holding instead that the $3 million Oregon Tort Claims Act cap, as applied to the physician defendant, would have violated not only the remedy clause of the Oregon Constitution, but also both jury trial Stare Decisis at the Oregon clauses—Article I, section 17, and Article VII (Amended), section 3.10 Accordingly, OHSU’s exposure was capped at $3 million; Supreme Court a limited judgment for the full amount of the jury’s award was 11 By Michael Willes entered against the physician defendant. Tonkon Torp LLP On direct appeal, the Oregon Supreme Court held that “the remedy clause does not protect only those causes of action Litigators throughout the state have that pre-existed 1857, nor does it preclude the legislature from taken interest in Horton v. Oregon Health and altering either common-law duties or the remedies available 12 Sciences University. The decision reshaped for a breach of those duties.” The court expressly disavowed the legal landscape of damages limitations Smothers, because the case lacked “support in the text and history and the right to have a jury resolve issues of of Article I, section 10”; was “at odds” with another clause of fact in civil cases. In the wake of the court’s the Oregon Constitution; conflicted with prior cases interpret- opinion in Bagley v. Mt. Bachelor, Inc., I wrote ing Article I, section 10; and was “of a relatively recent vintage” a pair of articles criticizing the court’s imple- and therefore had not been relied on by too many subsequent mentation of a totality-of-the circumstances decisions—all while admitting that plain language and history Michael Willes balancing test for determining the uncon- of the remedy clause did not have a “clear answer regarding 13 scionability of contracts.1 H. L. A. Hart the clause’s meaning.” This attack on prior precedent seems has noted that this type of discretion has “no clear principles to violate the court’s “assum[ption] that fully considered prior or rules determining the relative importance of . . . constituent values or, where they conflict, how compromise should be made between them.”2 To some extent, the Horton decision continued 3 Horton v. Oregon Health & Sci. Univ., 359 Or. 168, 171 (2016). the Oregon Supreme Court’s embrace of subjective—perhaps 4 Id. 5 Id. unguided—analysis, with respect to its treatment of the remedy 6 Id. clause and its own power to overrule constitutional precedent. 7 Id. “Balancing” one undefined set of factors against another affords 8 Id. at 171–72 (citing Clarke v. Or. Health Scis. Univ., 343 Or. 581, 600 (2007)). 1 See Caveat Venditor: The Consequences of Bagley v. Mt. Bachelor, Inc. for 9 Horton, 359 Or. at 172. Negligence Releases and Other Contractual Provisions, 34 Or. St. Bar Litig. 10 Id. J. 12 (2015); A Foil for Fazzolari: Recent Negligence Case Law Weakens 11 Id. Duty Limitations, 94 Or. L. Rev. Online 1 (2016). 12 Id. at 219. 2 Discretion, 127 Harv. L. Rev. 652, 659 (2013). 13 Id. at 198.

LITIGATION JOURNAL FALL 2018 • VOL. 37 NO. 3 15 cases were correctly decided.”14 Robert S. Peck and Dean Erwin to dependable statements of law, it also undermines the court’s Chemerinsky wrote that overruling Smothers was a “breathtaking legitimacy. pirouette, essentially expressing disagreement unanchored to new understandings or deeper inquiry [that] provides extraor- Stare Decisis No Longer dinarily weak grounds for overruling a recent and maturely Methodological and factual errors were once the focus when decided case.”15 the Oregon Supreme Court considered overruling prior con- To make sense of prior case law, Horton outlines three general stitutional pronouncements. In Stranahan v. Fred Meyer, Inc., categories of legislation subject to remedy-clause constraints. The a decision from 2000, the court overturned a 1993 decision, first category is where the legislature recognizes a duty but either Lloyd Corp. v. Wiffen, that addressed the geographic scope of provides no remedy or an “insubstantial” one.16 Second, if as a the right to gather petition signatures. Respect for stability, the part of a “larger statutory scheme” the legislature grants benefits court asserted, “applies with particular force in the arena of to some while limiting remedies to others, a “‘substantial’” but constitutional rights and responsibilities, because the Oregon limited remedy may be acceptable under the remedy clause.17 Constitution is the fundamental document of this state and, This is the “quid pro quo” exception allowing for the limitation as such, should be stable and reliable. On the other hand, 18 the law has a similarly important need to be able to correct of remedies such as the workers’ compensation system. Third, 25 upon considering “whether the common-law cause of action that past errors.” In overruling its prior precedent, the court paid was modified continues to protect core interests against injury to “particular attention to arguments that either present new persons, property, or reputation or whether, in light of changed information as to the meaning of the constitutional provision at conditions, the legislature permissibly could conclude that those issue or that demonstrate some failure on the part of this court interests no longer require the protection formerly afforded at the time of the earlier decision to follow its usual paradigm 19 for considering and construing the meaning of the provision in them,” the legislature may impose remedy limitations. When 26 discussing this third category, Judge David Schuman quipped, question.” “I believe that’s a fancy way of talking about ad hoc balanc- State v. Ciancanelli, a 2005 case, contains perhaps the most ing—what was the state’s interest, what is the degree of harm rigid recitation of the procedure for overturning constitutional inflicted upon the individual. Horton discarded the 1857 bright- precedent. The challenging party first had to persuade the line rule.”20 In other words, the court has acknowledged—or, court that the established rule was founded on an erroneous maybe more appropriately, assumed—the power to determine the “paradigm.”27 Second, the challenging party “still ha[d] before it shelf-life of common-law remedies, despite incorporation into the more difficult task of persuading this court that application Article I, section 10. The opinion offers no guidance on when it of the appropriate paradigm establishes that the challenged con- is appropriate for the court to assume that policy-making role, a stitutional rule is incorrect.”28 The final step required proving remarkable feat for a majority opinion that runs more than 83 that unwinding the accumulated precedents built on the errone- pages. ous constitutional pronouncement would not “unduly cloud or 29 Prior and subsequent opinions from the Oregon Supreme complicate the law.” Court show a fondness for balancing tests. The court has favored In its 2011 opinion in Farmers Insurance Co. of Oregon v. them for deciding whether a contract is unconscionable,21 Mowry, the court acknowledged its whether police had obtained voluntary consent to conduct a obligation when interpreting constitutional and statu- search,22 and what bounds are applicable to a voluntary search tory provisions and when formulating the common law of the contents of a person’s belongings.23 In the latter context, is to reach what we determine to be the correct result the court has twice rejected attempts to establish rules that in each case. If a party can demonstrate that we failed “would undermine . . . a full-throated consideration of the in that obligation and erred in deciding a case, because totality of the circumstances bearing on the scope of the defen- we were not presented with an important argument dant’s consent.”24 Horton has followed suit with respect to the or failed to apply our usual framework for decision or remedy clause and, perhaps more importantly, by abandoning adequately analyze the controlling issue, we are willing any formal approach to stare decisis. Not only does this present to reconsider the earlier case.30 a conundrum for parties who want to conform their activities As of the Mowry decision, the court’s focus—at least nomi- 14 Farmers Ins. Co. v. Mowry, 350 Or. 686, 700 (2011) (citing State v. nally—had not strayed from a search for errors. Nevertheless, Ciancanelli, 339 Or. 282, 290 (2005)). in Couey v. Atkins, a decision from 2015, the court invoked a 15 The Right to Trial by Jury as a Fundamental and Substantive Right and Other Civil-Trial Constitutional Protections, 96 Or. L. Rev. 489, 540 (2018). variation on an old balancing-test refrain to chip away at its stare 16 Horton, 359 Or. at 219. decisis constraints: “Precisely what constitutes an ‘error’ sufficient 17 Id. to warrant reconsideration of a constitutional precedent cannot 18 Id. at 221. 19 Id. at 219–20. 20 David Schuman, Setting the Stage, 96 Or. L. Rev. 673, 676 (2018). 25 Stranahan v. Fred Meyer, Inc., 331 Or. 38, 53, 11 P.3d 228, 237 (2000). 21 See Bagley v. Mt. Bachelor, Inc., 356 Or. 543, 560 (2014). 26 Id. 22 See State v. Unger, 356 Or. 59, 72 (2014). 27 339 Or. 282, 291. 23 State v. Blair, 361 Or. 527, 539 (2017). 28 Id. 24 See State v. Winn, 361 Or. 636, 641 (2017); Blair, 361 Or. at 539 (reject- 29 Id. In Stranahan the court took the first opportunity available to correct ing State’s proposed corollary that all contents within a container for its faulty constitutional analysis in Lloyd Corp. v. Whiffen, 315 Or. 500 which consent to conduct a search has been received would allow search (1993). See Ciancanelli, 339 Or. at 290. of closed but unlocked containers within). 30 Mowry, 350 Or. at 698 (citing Stranahan, 331 Or. at 54, 11 P.3d 228).