Research Journal Part III: Case Law

The Oregon Revised Statutes Annotated

To research case law related to lemon law in Oregon, I began by looking up the relevant statutes I found in the ORS in West's Annotated set (ORSA). The first thing I discovered was that the 646A.400 statutes were mostly found in a different section, 646.315 et seq., because the date of the ORSA print volumes were not current to this year. I went ahead and searched through the annotations of these outdated statutes in case there was anything relevant. Since the annotations include also references to legal encyclopedias, journal articles, and treatises, I took note of those that coincided with materials I had found in my preliminary analysis. On the other hand, I also found potentially useful references to treatises not owned by our law library. So the annotations help both validate completed research as well as suggest other possibilities for other steps in the research process. This shows that the research steps are interrelated and that the process is not always strictly sequential.

As for relevant case law, I found the following possibilities in the "Notes on Decisions" section: Pavel v. Winnebago Industries, Inc., 1994, 127 Or App 16, repeated throughout this statutory section, and Sweeney v. SMC Corp., 2002, 178 Or App 576, also cited three times.

To update this information, I checked the supplementary pamphlet (current through June 2010) where current 646A.400 et seq statutes were available. Reading through the decision notes, one more case that seemed potentially relevant was Liles v. Damon Corp.. 2008, 345 Or 420. All the others dealt with repair situations that did NOT pertain to new vehicles

West's Oregon Digest 2d

Next, I used West's Oregon Digest 2d to see if there were any more relevant cases. I started with the Descriptive Word Index, using the term "Lemon Laws." This cross referenced to "Automobiles, lemon law" and "Consumer Protection, generally." These index terms led to several possible topic keys, such as Consumer Protection 9, 36, and 1 through 50 in general. However, these turned out to be dead ends, and searching in the pocket parts for the Descriptive Word Index revealed why: "Automobiles, Lemon Laws" now pointed to the topic keys Antitrust 206 and Autos 368; and the index term "Consumer Protection, generally" was now "Unfair Trade Practices, generally" which led to the topic keys Antitrust 192 and Antitrust 195. In other words, the topic volumes were more up to date than some of the Descriptive Word Index, showing how valuable the pocket parts are for keeping up with changes in the topic key system.

Looking up these topic keys and then, of course, updating them in the pocket parts, did not lead to any new relevant cases, but did verify one: the Liles v. Damon case. All the others dealt with repair situations that did NOT pertain to new vehicles or award specifics relevant to motor homes only, which is not our case. The topic key Antitrust 206 is the specific one for lemon law, and two of the three cases I chose have this key as a headnote; two cases came under this key that I did NOT select, one having to do with the definition of "passenger" and the other with whether a particular vehicle was a "consumer product" when only occasionally used for personal reasons; neither of these are at issue in this case.

In the interests of currency, verification, and curiosity, I did a search on the Antitrust 206 key number online in Westlaw. Two of my three cases (Liles v. Damon, Sweeney v. SMC Corp.) appeared plus a third one that I had not selected for reasons listed in the previous paragraph. The Pavel v. Winnebago case did not appear, most likely because the case addresses the outdated statutes, some of which were indexed by West under other Antitrust subtopics. I am unclear why they were not subsequently also indexed under Antitrust 206, since the other two given headnotes expressly mention lemon law statutes. I am unclear as to whether this makes it mandatory authority in the current case, but I decided to include the case in my research anyway.

Selected Cases

I then printed these three cases out and read through them. The Liles v. Damon seemed potentially relevant even though dealing with a new motor home, since at issue was whether written notice of defect was required to be sent to the manufacturer before the manufacturer had opportunity to correct defect, and whether lemon law required that written notification contain information beyond request for settlement. Both points could be relevant to our consumer's course of action in remedying her situation. Pavel v. Winnebago also addressed the need to provide the manufacturer with written notice of defect prior to pursuing remedy under lemon law. The third case, Sweeney v. SMC Corp, had to do with the awarding of triple damages and whether pursuing multiple remedies simultaneously precluded the awarding of damages under the lemon law statutory remedy.

Persuasive Authority

To find possible persuasive authority, I used Westlaw to do topic key search under Antitrust 206 in Washington and California. A list of 8 cases was produced for Washington; 31 for California. One from Washington in particular stood out for my research problem, Chrysler Motors Corp., 116 Wn.2d 208, 803 P.2d 314, 1991. This case would be directly relevant on a point that is not specifically addressed in the Oregon statutes or cases: is a demonstrator vehicle still a "new" motor vehicle? This is an instance where that original generation of terms and listing of facts shows itself to be useful throughout research; the term "demonstrator" caught my eye as a result.

The list of 31 California cases did not really seem illuminating beyond what is already provided for in the Oregon statutes, and appeared to follow a set of lemon laws (the Song-Beverly Consumer Warranty Act) quite distinctive from Oregon's. As a result, I did not pursue any of these cases further.

Shepardizing

To verify that my four cases (I included the Washington one) were still good law, I shepardized them online. All of them were current and had been treated positively with no subsequent appellate history. All had been subsequently cited in other cases.

In total, case law research took about five hours to compile, including the time to read and determine relevance, and about an hour to document the process here.

Research Journal Part II: Statutory Research

The Oregon Revised Statutes Index

Looking under the term "Lemon Law" gives a cross reference to "Motor Vehicles, Warranties, New Vehicles (Lemon Law). Several subtopics are listed under this, but before all the detailed subtopics, "(generally)" is given first and points to statutes 646A.400 et. seq. (which lasts through 646A.418 before turning to "Vehicle Protection Products," which do not apply in this case). While it is possible to research other related terms - "warranties" or "motor vehicles, repairs," for instance, searching on these terms for laws relevant specifically to new motor vehicles consistently leads back to this specific set of laws. In addition, a quick reading of one of these statutes reinforces their sufficiency, as will be discussed below.

The Statutes

It is clear from reading through ORS 646A.400-418 - entitled, "Warranty Regulation and Enforcement (Enforcement of Express Warranties on New Motor Vehicles)" that they are mostly directly applicable to this case, providing for the availability of consumer remedies for vehicles that fail to conform with their express warranties, time limitations, what those remedies entail, settlement procedures, and so forth. This is with the exception of 646A.405, which explains the notices required by sellers for buyers if a vehicle has been purchased back because of a defect; this statute is probably not relevant to the current situation.

One statute - the last one, 646A.418 - makes clear that while other potentially relevant statutes may be used to pursue remedies, but that if these are the statutes to be used for remedy, no others may be, and vice versa. This shows that reading through the statutes as they are located can help provide guidance as to whether pursuing research under other laws is necessary or helpful.

The search for the relevant statutes, then, was relatively straightforward, and maybe took about an hour to research, an hour to read through and determine which sections were relevant, and half an hour to document the process here. Next: researching case law.

Research Journal Part I: Preliminary Analysis (Knowledge Assessment, Background Readings, Secondary Sources)

The last segment of the preliminary analysis was lengthy enough that I decided to give it a separate post. The time spent researching secondary sources and pinpointing their relevant sections took approximately three hours, and another hour to compile and draft. If I were to read all the possible background reading in depth, I estimate several days would be spent doing so. I searched by browsing familiar Oregon practice materials at the Washington County Law Library, consulting corresponding general treatise materials, various legal encyclopedias, and online databases for relevant Oregon journal and law review articles.


Taken from browsing law library's Oregon material shelves:

Oregon State Bar Book "Contracts"

This resource had none of my key terms in the index, and browsing through the table of contents gave me the impression that the information pertained to all kinds of contracts BUT sales contracts. This made even more sense as I found most of the sales contract law in the following practice book.

Oregon State Bar Book "Consumer Law"

Using the index and the term "lemon law," I was led to the index term "new motor vehicle." Other terms were "motor vehicle, material defects and nonconformities" and "warranty, breach of."

Section results to read: Entire chapters of 16 and 17, 4.20

Oregon State Bar Book "Damages"

This bar book's index had many entries under the "sales of goods, contracts for" that seemed relevant to remedying a breach of those contracts. All of these entries pointed to sections in chapter 25, titled "Contracts for the Sale of Goods." There were no entries under "lemon law" or warranties." Entries under "breach of contract" were general entries about all kinds of contracts, with a cross-reference for "sale of goods, etc."

Results to read: chapter 25.

Oregon Uniform Commercial Code (Henry J. Bailey III)

The term "lemon law" was not in the index. I also figured out that each of the three volumes had its own separate index for that volume, and that what I needed was solely in Volume 1, "General Principles, Sales of Goods, and Leases of Goods" and especially in chapter 2. Following is a list of the relevant index topics and subtopics I found and their corresponding sections for reading:

Acceptance of goods, effect on claim for breach: 2.63, 2.68

Breach of warranty, generally: 2.69, 2.153

Consumer sales, Consumer Warranty Act: 2.117, 2.119

Consumer sales, Unlawful Trade Practices Act: 2.120

Consumer sales, Federal Magnuson-Moss Act: 2.118, 2.119

Limitations of actions: 2.124

Limitations, modifications, and substitutions of remedies: 2.107, 2.113, 2.114

Notice of breach of warranty against infringement: 2.92

Products liability, basis of claim: 2.122, 2.123

Repairs, obligation established by course of dealing: 2.106

Remedies, generally: 2.126 - 2.130

Remedies, buyer's remedies, scope after rejection of goals: 2.144

Remedies, buyer's remedies, scope after revocation of acceptance: 2.71

Remedies, buyer's remedies as consumer, cover: 2.151

Remedies, buyer's remedies for breach of contract by seller, generally: 2.144 - 2.160

Resources found from browsing relevant subject call number area in law library's general treatises and self-help:

Products Liability, 6th ed, Nutshell series

This entire book would be useful background reading. From table of contents, all of chapter 4 is dedicated to warranties., and from index, p. 485-486 pertain specifically to motor vehicles.

Everyday Contracts (Random House)

From table of contents, it would appear that chapter 4, "Repairing Your Car," is potentially useful.

Corbin on Contracts, Willitson on Contracts, The Practice of Consumer Law

I did similar searches as above in the indices of all of these books; they all seemed either redundant or much less specific than the Oregon UCC book. My guess is that this is because the relevant law is mostly detailed at the state jurisdiction level, and probably variable.

Resources from online legal research databases, looking for relevant law jounal articles:

Hein Online

In this database I searched the Law Journal Library, but limited my results to Oregon published journals, though it is possible journal articles from other states might be useful. Using various combinations of my key terms - most of which are too broad alone - I found very little in Oregon. I began with a text search for "lemon law" and "lemon laws" and returned no relevant results. I then tried "motor vehicle warranty"- also no relevant results. Another tactic I tried was limiting my searches to the three subject areas "Commercial Law," "Contracts," and "Torts." This narrowed any results lists down to not just irrelevant results, but nearly NO results. After a few more unsuccessful permutations, I entered the search string "motor vehicle" OR "automobile" AND "breach of warranty." This led to two possible relevant results, both of which are not very recent:

Products liability in a nutshell, Oregon Law Review, vol. 37(2), Feb. 1958, p. 119-159.

Private remedy under Oregon's Unlawful Trade Practices Act, Oregon Law Review, v. 56(3), 1977, p. 490-517.

Westlaw (Oregon Journals and Law Reviews database)

These searches were also frustratingly unproductive. "Lemon law" as a term found nothing. "Motor vehicle" alone was too broad, so I then tried "motor vehicles" AND "breach of warranty." This was also unproductive, as the results were completely irrelevant. I finally hit on "motor vehicles" AND "products liability." This produced one result that seemed at least relevant, though I am unsure how useful in my case:

Oregon's products liability law and the problem of economic loss: Willamette Law Review, vol. 28 (565).

Resources from legal encyclopedias using print indexes:

AmJur 2d

Looking up the term "lemon laws" pointed to its location under the index terms "Automobiles and Highway Traffic, Lemon Laws, generally." This pointed to the entry "Consumer Protection (ConsumePro) sections 49-57." A search under "Warranties, breach of warranty" led to "Sales sections 1128-1137." Entries under "Vehicles, actions and remedies, repairs" - the subtopic that would seem relevant - did not relate to lemon law, except where the term "lemon law" is again subordinated, which leads back to the "Consumer Protection" entry above.

Corpus Juris Secundum


In the CJS index, the term "lemon law" led to the subject and section "Credit Agency section 59." The term "vehicles" did not lead to any relevant entries; "automobiles" gave a cross-reference to "motor vehicles." Subordinated under "motor vehicles" was "defects" which referred to "products liability" also subordinated under "motor vehicles." This led to the subject "Motor Vehicles sections 409-430." There was no subordinated entry for "warranty," though there were a large number of subordinated entries under the index term "warranty." Relevant ones included "breach of warranty, products liability," leading to "Product section 208" and "sales, general provisions, damages ("Sales section 310 et seq.") and "sales, general provisions, remedies ("Sales section 278 et seq.") and "sales, general provisions, right of action, defenses, and counterclaims ("Sales section 284 et seq.")

American Law Reviews

In the ALR index, a search under the term "lemon law" gave a subentry for "jury trial," which yielded a section from the following article:

Constitutional right to jury trial in cause of action under state unfair or deceptive trade practices law (54 ALR 5th 631, 4(b))

Also under "lemon law" was the entry "motor vehicles," and an entry for the article:

Validity, construction, and effect of state motor vehicle warranty legislation (88 ALR 5th 301).

Searching under the term "motor vehicles" gave a cross-reference to "Automobiles and highway traffic" which in turn had a subentry for "lemon law!" This in turn had two subentries, "products liability, generally" and "warranties." These led to the following two ALR articles:

New motor vehicle warranty as limiting liability to repair or replacement of defective parts (2 ALR 4th 576)

Construction and effect of standard new motor vehicle warranty (99 ALR 2d 1419)

Research Journal Part I: Preliminary Analysis (Facts, Issues, Key Terms, Jurisdiction)

As part of my study, I am working on a research problem and using this blog as a journal for the steps I take and results I find from my research strategy, which begins with preliminary analysis. The research problem is as follows:

Becky Smith purchased a 2009 Ford Explorer in January 2010 from a Portland area car dealer. The Explorer had been used as a demonstrator and had just over 3,000 miles on the odometer.

When Smith purchased the vehicle it was still under the manufacturer’s warranty. Shortly after she purchased the Explorer she started having difficulties with the power steering. In May 2010, Smith took the car back to the dealership and they “fixed” the problem. Two weeks later, the power steering acted up again. She took the car back in and the problem was again “fixed.” In August 2010, the Explorer’s steering started pulling to the left. She took the car to the dealer. The dealer kept the Explorer for a week and promised to install a brand new steering mechanism. Three days after getting the car back, the power steering failed while Smith was driving to Seattle. At this point, the dealership began to ignore Smith’s complaints. Becky wants us to identify what remedies she might have under Oregon law.

Following is my preliminary analysis, broken down by section.

Preliminary Analysis: Facts

1. Becky Smith purchased a 2009 Ford Explorer in January 2010.


2. Car was purchased at Portland, OR area dealer.


3. Vehicle had been a "demonstrator."


4. Vehicle was under manufacturer's warranty at time of purchase.


5. Shortly after purchase, Smith had problems with the power steering.


6. Smith took vehicle to dealership in May 2010 for repair. Dealership said problem was fixed.


7. Two weeks later, the power steering problems reappeared.


8. Smith took vehicle to dealership again. Dealership said problem was fixed.


9. In August 2010, the vehicle's steering began to pull to the left.


10. Smith again took vehicle to dealership for repair.


11. Dealership kept vehicle for a week.


12. Dealership promised to install a brand new steering mechanism.


13. Three days after getting vehicle back, Smith drove vehicle to Seattle. Power steering failed.


14. Dealership failed at this point to respond to Smith's complaints.

Preliminary Analysis: Issues

1. Power steering failure


2. Warranty coverage and adherence


3. Lemon law


4. Consumer law

Preliminary Analysis: Key terms

• Who: buyer, customer, seller, car dealer, dealership, mechanic, manufacturer


• What: 2009 Ford Explorer, vehicle, car, power steering, warranty, demonstrator, low mileage, malfunction, repair


• Where: Portland, OR, dealership, Seattle


• When: Purchase, January 2010; first trip to dealership, May 2010; second trip, two weeks later; third trip, August 2010; three days after return, final failure


• Why: lemon, malfunction, faulty repair, faulty manufacture


• How: repair, service, manufacture, repeated failure, warranty failure

Terms I added as I went along in my index research: automobile, damage, motor vehicle, product liability, breach of warranty, remedies, recourse

Preliminary Analysis: Jurisdiction

Portland, Oregon; Oregon State law

In the next post: Preliminary Analysis: Knowledge Assessment/Background readings/Secondary sources

A Few Thoughts on the Oregon Constitution

The second chapter of the Rowe text discusses the Oregon Constitution, which is published in the Oregon Revised Statutes. I was not surprised to read that much of it parallels the U.S. Constitution. I was surprised to learn that some of what is covered in the Constitution is very similar to statutory law, and that some later articles cover what seem to me to be rather odd and arbitrary topics - like "Seismic Rehabilitation of Public Education Buildings." I am wondering if this is a result of Oregon's unique initative process whereby Oregon voters can amend the Constitution directly, or if this is common in many states by historical quirks.

I found the section on how the Oregon Supreme Court goes about interpreting the original provisions of the Constitution using "the Priest framework" to be interesting. It hadn't occurred to me before that anything outside the text wording itself could be considered in interpretation, but this does allow for a more nuanced understanding by the courts, especially where the wording might be otherwise vague or confusing. Having done an internship at the Oregon Historical Society, I was also interested to learn about the the three part article written by Professior Claudia Burton about a set of complete documents for each Constitutional article she found there. It just goes to show how present research - or even serendipitous browsing - can dramatically recast our understanding of historical events and documents. It also shows how law and history are intrinsically connected and demonstrates another reason why interpretations of existing law necessarily change over time. In that vein, Rowe also mentions how Oregon courts may look even to the Magna Carta and English law commentary, and how the Oregon Constitution is modeled on Indiana Constitution's Bill of Rights, which may then also be looked to for interpretation. Obviously law is not created in a historical vacuum, and so it makes sense that interpreting it with care may involve that important historical context, even further back than one might at first expect.

Interpreting amendments after 1859 is a bit of a different matter, but still involves careful reading of text, and then historical context, which includes ballot titles, arguments for and against from the voter's pamphlet, and even news articles and editorials of the time of the initiative. It is the intent of the voter that the courts will try to discover. Rowe includes a beginning discussion of the initiative and referenda process in Oregon here, which allows voters to amend the Constitution on their own, bypassing the legislature. She notes that some feel this process allows too much ease in amending the Constitution. More information about the initiative and referendum process can be found the the Oregon Secretary of State's State Initiative and Referendum Manual, as well as the Oregon Blue Book.

While I knew the Oregon Constitution could be found in the Oregon Revised Statutes (as well as WORSA), I did not know that the United States Constitution could be found there as well, and indeed, in every state's published codes. It is, of course, in the United States Code Annotated and in the United States Code Service, but I can imagine research situations covering both state and federal material where having the federal constitution in the state code is quite useful.

Introduction to Oregon Legal Research and Preliminary Analysis Exercise

I have completed the first chapter of Suzanne Rowe's Oregon Legal Research 2d. The chapter covers the basics of types of legal resources, detailing the differences between primary and secondary sources, and mandatory versus persuasive authority. A primary source is a source originating directly from a source of law itself, such as legislation, administrative rules, judicial opinions, and so forth. A secondary source is one that provides commentary on or guides to primary law, including materials such as digests, annotations, treatises, and law journals. Sources that originate directly from the jurisdiction in which a legal issue exists are deemed to have mandatory authority; sources that originate from either neighboring jurisdictions or very similar topics and circumstances are considered to have persuasive authority.

It gives a brief overview of the two major online legal research database providers, LexisNexis and Westlaw, including an introduction to their organization and various search modes, such as searching with terms and connectors, natural language searching, and topic searching. Topic searching and natural language searching have the strength of returning results that can generate a greater number of terms under which your research question might be pursued, and therefore may be useful as a starting point. Terms and connectors, on the other hand, may be more useful once the researcher has generated an exhaustive term list, and has the advantage of being more likely to return a comprehensive and more consistently relevant list of hits. Boolean connectors are also given in a chart. The organization of both databases is touched upon briefly, including how to find and select databases and using search tabs. Finally, this chapter gives an outline for the organization of the rest of the text and appendices.

I also completed my first exercise in preliminary analysis last week. The hypothetical case presented concerned a Portland, Oregon homeowner whose dog bites an intruder into the back yard. Generating all the different possible search terms using the who, what, where, when, and why questions was an exercise that revealed the subjective nature of the research. I used a thesaurus to trigger any terms that weren't forthcoming off the top of my head; and there were definitely a handful of potentially appropriate terms that I would not have generated on my own. Yet I noted that many listed synonyms for a given term were equally inappropriate in their connotation or common usage, and so I made many judgment calls about which terms to select while still being as exhaustive as possible. I noticed that later in the exercise when performing searches on these terms, ultimately only a handful seemed to generate many relevant results. However, some of those in the handful would not have come up if I had not gone through the step of synonym generation; I can see why it is an important step to take.

Looking up the legal term trespass was also eye-opening. Not only were there many specific - and some very obscure - definitions of the word trespass alone, many versions of the term incorporated other terms (some in English, some in Latin!) as well, including the mouthful term that most closely resembled the exercise's research problem: trespass quare clausum fregit. This seems like quite a sophisticated and lengthy term for a relatively commonly understood conception of the word trepass in non-legal terms. When using legal terms, it is obviously very important to make sure the word you are using indicates precisely what you mean from a legal terminology point of view, not just common held (and often imprecisely used) terms.

Objectives and the Activities that Support Them

I have gotten my feet a bit wet with an exercise in preliminary analysis of a legal research problem and reading the introduction to Suzanne Rowe's Oregon Legal Research 2d. Before I discuss the reading and exercise, which I will do in a separate and subsequent post, I want to outline a little more fully the objectives of my independent study, what the coursework will entail, and how the coursework, including this blog, will contribute to those objectives.

In my independent study proposal, five objectives are listed as follows:

a. Identify, categorize, and respond to legal research questions

b. Gain familiarity with and ability to use various legal resources, especially in a reference interview context

c. Gain understanding of and ability to utilize legal research methods

d. Demonstrate ability to teach acquired legal research skills

e. Explore issues surrounding the evaluation of legal reference services; develop potential evaluative methods

I intend to accomplish these objectives through various activities, the first of which is the reading resources relevant to the coursework. The primary text I will use is, as noted above, Suzanne Rowe's Oregon Legal Research 2d. In addition, I will read other resources as relevant and necessary, such as various primary and secondary legal resources or articles covering legal research methods.

Another course activity will be completing research exercises provided by my professor. These exercises are designed both to explore ideas surrounding and practice using legal resources and research methods.

Along with this coursework, I will create and implement a legal research workshop for public librarians, submitting for evaluation a workshop outline, materials, and description. This will strengthen my own understanding of legal research skills while giving me a chance to practice instructional skills that are necessary to law librarianship.

Finally, I have created and will use this blog to document and reflect on my activities and progress. I will make a minimum of one entry per week, and towards the end of my study, I will use these posts to write a summarizing reflection paper that demonstrates knowledge and skills gained and integrates various concepts from course activities.

One activity discussed in the proposal was the writing of a paper that would fulfill objective e.: a paper about evaluating the effectiveness of legal reference. While my instructor and I have agreed that that was too big a project for the scope of this class, I am hoping to still at least find time to conduct a literature review on the subject, should such literature exist. Since I currently work in a law library where I have ample opportunity to practice legal reference skills, exploring potential ways, if any, to evaluate the effectiveness of that reference is a topic of great interest to both me and my work supervisor. I will continue to report here on any progress made in this vein.