Volume 1997Masthead PDF
Environmental Disclosure and Evidentiary Privilege
Eric W. Orts & Paula C. Murray | 1997 U. Ill. L. Rev.
The proper treatment of voluntary environmental audits has generated a considerable amount of debate at many levels. On one side of the argument, industry has sought a privilege for voluntary internal environmental audits, arguing that this information allows a business to comply with environmental laws and improve their environmental performance. On the other hand, other groups, including many environmentalists and the Environmental Protection Agency (EPA), oppose protection for this information because they believe polluters will be able to withhold evidence of environmental violations.
In this article, Professors Orts and Murray wrestle with these concerns in search of an acceptable resolution for both sides. By examining the development of the self-evaluative privilege, they are able to evaluate the applicability of this mechanism to environmental audits. Most notably they point out that self-evaluative practices are better seen as remedial measures rather than a privilege based on confidentiality. Founded on this insight, Professors Orts and Murray then offer a compelling resolution to this difficult dilemma: an evidentiary self-evaluative privilege that is available only to those businesses conducting their audits under a structured EPA-supervised system.
* Visiting Professor of Law, University of Michigan Law School; Associate Professor of Legal Studies, The Wharton School, University of Pennsylvania. B.A. 1982, Oberlin College; M.A. 1985, New School for Social Research; J.D. 1988, University of Michigan; J.S.D. 1994, Columbia University.
I thank the Wharton School's summer research fund for junior faculty for support. Jody Freeman and Ken Graham at UCLA gave very helpful comments. Richard Friedman and Aidan Synott provided useful thoughts and suggestions.
** Visiting Associate Professor, The Wharton School, University of Pennsylvania; Associate Professor, Graduate School of Business, University of Texas at Austin. B.A. 1977, Baylor University; J.D. 1980, University of Texas.
Section 10(b) and the Vagaries of Federal Common Law: The Merits of Codifying the Private Cause of Action Under a Structuralist Approach
Edward A. Fallone | 1997 U. Ill. L. Rev.
Few issues in the field of securities law have proved as controversial as the legitimacy and proper application of the implied private cause of action for securities fraud under Section 10(b) of the Securities Exchange Act of 1934 and its regulatory counterpart, Rule 10b-5. The Private Securities Litigation Reform Act of 1995 was expected by many observers to bring about sweeping changes in the implied private cause of action, which critics charge has been abused by overzealous litigants bringing frivolous lawsuits. In his timely article, Professor Fallone argues that most of the Private Securities Litigation Reform Act's changes to the implied private cause of action are merely procedural in nature and fail to address the real problem: the scope of liability for securities fraud under Section 10(b) has been rendered incomprehensible by conflicting court decisions and is no longer consistent with the overall goals of the federal securities laws. The author calls for Congress to reassert control over the content of the implied private cause of action under Section 10(b) by codifying it.
Professor Fallone begins with an overview of the most recent securities legislation and an explanation of why it does little to resolve the ambiguities surrounding the implied private cause of action. He then chronicles the history of the cause of action, describing its elements as they currently exist and how they have evolved over the years. The author then points out specific problems arising from the elements of the cause of action having been left up to the courts, and how the common-law process has resulted in an interpretation of the cause of action that is inconsistent with the overall goals of the federal securities laws. Finally, Professor Fallone recommends that Congress codify the cause of action employing a structuralist approach, a method of statutory construction which emphasizes consistency with the operating principles of a statutory scheme.
* Assistant Professor of Law, Marquette University Law School. B.A. & J.D. 1988, Boston University. Support for this article was provided by a research grant from Marquette University Law School.
The Buck Does Not Stop Here: Supervisory Liability in Section 1983 Cases
Kit Kinports | 1997 U. Ill. L. Rev.
The appropriate standard for supervisory liability in Section 1983 cases has been a source of considerable disagreement among federal courts of appeals. In the absence of established Supreme Court authority on the subject, courts have rejected vicarious and negligence liability in favor of a higher culpability requirement, but they have not agreed on precisely what form this higher standard should take. In this article, Professor Kinports addresses the need for a uniform standard consistent with the statute's twin goals of compensating the victims of constitutional violations and deterring constitutional infractions.
Professor Kinports notes at the outset that lower courts have unjustifiably relied on Supreme Court opinions discussing state-of-mind requirements for particular constitutional violations and cases addressing municipal liability in Section 1983 suits in formulating the requirements for supervisory liability. She then identifies five factors considered by courts in determining whether supervisory liability should be imposed on the facts of particular cases: (1) the existence of prior similar incidents; (2) the supervisor's response to such incidents; (3) the supervisor's response to the specific incident involved in the suit; (4) the extent to which the supervisor caused the violation; and (5) the supervisor's awareness of the constitutional wrongdoing. Application of these factors has led to inconsistent results in similar cases, the author argues. She further contends that courts in general have too readily ruled in favor of supervisory officials.
As a substantive matter, Professor Kinports asserts, the standard of supervisory liability should be a national one. In addition, the author advocates a meaningful standard of culpability, which she concludes is best satisfied by a negligence standard. Liability for supervisory negligence is consistent with Supreme Court precedent as well as Section 1983's causation requirement, and concerns about protecting blameless supervisors are already assuaged by the qualified immunity defense available to executive branch officials, which the author suggests should shield supervisors if a reasonable public official in their position would not have realized that the plaintiff's constitutional rights were being violated. Professor Kinports thus concludes that it makes sense to hold supervisory officials accountable for constitutional violations caused by their negligence in supervising, training, or disciplining their subordinates.
* Professor, University of Illinois College of Law. A.B. 1976, Brown University; J.D. 1980, University of Pennsylvania. I am greatly indebted to Steve Ross for his helpful comments on earlier drafts of this article, and to Aylon Schulte, Maria Dunn, and Nicole d'Arcambal for their excellent research assistance. I also gratefully acknowledge the research support of the David C. Baum Research Fund.
Is Legal Theory Good for Anything?
Steven Lubet | 1997 U. Ill. L. Rev.
The role of legal theory in legal education has been a source of sharp disagreement among educators and others. In this essay Professor Lubet questions one commentator's recommendation that interdisciplinary legal theory become the centerpiece of the law school curriculum. The author cautions against excessive emphasis on theory to the exclusion of other aspects of legal pedagogy, advocating a more balanced approach to training America's future lawyers.
* Professor of Law, Northwestern University. B.A. 1970, Northwestern University; J.D. 1975, University of California, Berkeley.
Rethinking Schneckloth v. Bustamonte: Incorporating Obedience Theory into the Supreme Court's Conception of Voluntary Consent
Adrian J. Barrio | 1997 U. Ill. L. Rev.
The Fourth Amendment's twin probable cause and warrant requirements prohibit police officers from conducting arbitrary searches of a person's home, vehicle, or belongings. Due in part to the amendment's literal language, however, the Supreme Court has recognized various exceptions to these procedural safeguards. One of these exceptions, the consent search, has received a considerable amount of scholarly attention. Although few commentators have questioned the desirability of allowing a citizen to forsake important Fourth Amendment protections, many have challenged the Supreme Court's notion of voluntary consent and the legal fiction that it gives rise to--that the reasonable person feels comfortable declining police requests. The intractable reality, opponents assert, is that the vast majority of people are simply unaware that they may lawfully refuse these requests.
In this note, the author reassesses the Supreme Court's conception of voluntariness in light of modern psychological findings on authority and obedience. What currently passes as voluntary consent, he finds, may actually be the product of an extensively documented but rarely discussed social phenomenon--the tendency of most people to reflexively obey authority figures. To preserve the individual's autonomy in exercising Fourth Amendment rights, therefore, the author proposes that police officers be required to inform suspects of their right to withhold consent upon requesting their permission to search.
* Many thanks to Professors Kit Kinports and Andrew Leipold, who provided invaluable commentary on earlier drafts of this piece.
Reasonable Attorney's Fees Under the Social Security Act: The Case for Contingency Agreements
M. Wade Baughman | 1997 U. Ill. L. Rev.
After successfully adjudicating a claimant's rights to Social Security benefits, an attorney may ask the court to direct payment of his or her fee directly out of the past-due benefits awarded to the claimant. The federal circuit courts have split over the proper method for courts to use in determining the amount of this fee when the claimant and the attorney have entered into a contingency fee arrangement. Some circuits treat the contingency agreement as presumptively reasonable and adjust the fee only in limited situations. Other circuits determine the fee through independent calculation using the lodestar method. This note sets forth criticisms of both methods and argues that a modified contingency method is the best answer. The author seeks to allay the criticism of the contingency method by providing a more concrete and formal inquiry into the contingency agreement.
Fair Housing in the United States: A Legal Response to Municipal Intransigence
J. Mark Powell | 1997 U. Ill. L. Rev.
Despite the passage of the Fair Housing Act in 1968, rising housing costs and enduring racism continue to limit the availability of affordable housing to minority families. Commentators agree that thus far both judicial and legislative approaches to the problem have proven ineffective. Legal challenges to discriminatory government action, whether based on the Equal Protection Clause or Title VIII itself, have rarely been upheld, due in large part to the difficulty of proving official discrimination. Meanwhile, state initiatives designed to ensure the construction of affordable housing, although promising in some respects, have virtually ignored the central underpinning of the affordable housing shortage--racial discrimination.
After pointing to the inadequacy of existing avenues of relief, the author critiques two major proposals offered by commentators to remedy the affordable housing shortage: federal fair share legislation and mobility grants. Finding that the former proposal unnecessarily constrains local autonomy and that the latter ineffectively challenges municipal intransigence, the author concludes that a "middle ground" approach would most effectively resolve the affordable housing problem. He thus recommends increased federal oversight of the development and implementation of state and local affordable housing efforts, with significant discretion left to state and local governments in setting affordable housing targets and allocating corresponding housing quotas to municipalities. Additionally, to ease the burden of proving official discrimination on fair housing claimants, the author proposes relaxing the pattern or practice requirement of Title VIII suits.
Sexuality, Rape, and Mental Retardation
Deborah W. Denno | 1997 U. Ill. L. Rev.
In this article, Professor Denno addresses the question of when sexual relations with a mentally retarded individual should be considered nonconsensual and therefore criminal. The article first explores the early treatment of mentally retarded individuals, concluding that throughout history society has viewed mentally retarded persons as either asexual and childlike or hypersexual and at risk of producing offspring "as defective as themselves." Professor Denno then demonstrates how these stereotypes influence the moralism inherent in modern conceptions of consent in rape determinations. Illustrating the point with reference to the Glen Ridge rape case, the article shows how courts applying contemporary rape statutes typically hold mentally retarded individuals to a higher standard of consent than nonretarded individuals. Such a standard is so strict that it can preclude consensual sex with mentally retarded persons under any circumstances. As a result, courts are hurting the very people they are supposed to protect and failing to respect those people's dignity. To remedy this incongruity, Professor Denno proposes that courts making consent determinations apply a contextual approach, which incorporates among other things modern knowledge about the adaptive capabilities of mentally retarded individuals as well as information about the situational context of the sexual conduct.
Finally, Professor Denno discusses the regulation of sexual relations in the context of institutions and residential homes for mentally retarded individuals. This issue is important for two reasons. Such regulation demonstrates the maximum extent to which legal standards can infringe upon the rights of mentally retarded individuals, and it illustrates the most complicated dimensions of the contextual approach. In light of this discussion, this article concludes that most mentally retarded individuals have the capacity to consent to sexual relations, they have the right to do so, and unnecessarily broad and moralistic restrictions infringe upon that right.
* Associate Professor of Law, Fordham University School of Law. B.A. 1974, University of Virginia; M.A. 1975, University of Toronto; Ph.D. 1982, J.D. 1989, University of Pennsylvania. Portions of this article were presented at the 1994 Annual Meeting of the Law & Society Association in Phoenix, Arizona, where I benefitted from questions and suggestions.
Forfeiture of Unimproved Land in the Early Republic
John F. Hart | 1997 U. Ill. L. Rev.
In his second revealing look at the historical assumptions underlying the broad application of the Takings Clause to the regulation of private land, Professor Hart examines two important but overlooked moments in land use regulation: the Virginia-Kentucky compact of 1789 and the Kentucky case of Gaines v. Buford. Although both concern the forfeiture of unimproved land--an issue that is unlikely to arise again in the United States--Professor Hart argues that each still has important ramifications for land use jurisprudence. He concludes that these events demonstrate the survival of a seventeenth century concept of property after the adoption of state and federal constitutions, and the two distinct forms of nineteenth century constitutionalism represented in Gaines v. Buford have very different implications for modern land use regulation.
* Associate Professor, Valparaiso University School of Law. B.A. 1997, Reed College; J.D. 1980, Yale University. I thank Eric Freyfogle for comments and suggestions.
The Discriminatory Application of Substantive Due Process: A Tale of Two Vehicles
Susan R. Klein | 1997 U. Ill. L. Rev.
Substantive due process review has largely waned, according to many commentators. However, the Supreme Court relied on the doctrine in BMW v. Gore to overturn what it concluded was a grossly excessive punitive damage award against a large corporation. Not two months before this decision, the Court, in Bennis v. Michigan, upheld the ruling that due process was not offended by the confiscation under Michigan's forfeiture statute of an automobile that was jointly owned by a married couple for the criminal misdeeds of the husband. In this essay, Professor Susan R. Klein confronts the irreconcilable outcomes of these two cases, rejecting along the way a number of conceivable justifications for the difference in the decisions. Among the rationales for upholding forfeiture of jointly owned property that the author weighs are vicarious liability, liability for negligent bailment, and the availability of marital property to creditors to satisfy debts incurred by one spouse. The author concludes that the Bennis decision is unjustified and that the Court pieced together a variety of limited doctrines to reach the remarkable result of punishing an innocent property owner.
In particular, Professor Klein argues that reliance on the tort doctrine of respondeat superior liability is misplaced. Spouses do not, the author notes, share vicarious liability for the acts of one another. Even if the doctrine applied to spouses, John Bennis would certainly be deemed under the theory to have been on a "frolic and detour" when he committed the underlying offense. The author similarly concludes that liability for negligent bailment must fail because Mr. Bennis's crime was not foreseeable to Tina Bennis, and she did not have the opportunity to withhold her consent to his use of the jointly owned car. Moreover, the author argues that, although the policy of encouraging financial responsibility may justify joint spousal liability for debts incurred by one spouse, the same rationale does not support holding spouses jointly liable for the criminal acts of one spouse. Finally, Professor Klein contends that any fear on the part of the Court of the impact of overturning the forfeiture statute on the constitutionality of strict liability crimes and corporate criminal liability is unwarranted. The author concludes that the two cases stand as stark examples of the Court's continuing inability to agree on the existence and contours of substantive due process, to develop a test which distinguishes between remedial and punitive sanctions, and to apply substantive due process rigorously to legislation in the criminal law area.
* Assistant Professor of Law, University of Texas at Austin. A.B. 1983, Wellesley College; J.D. 1989, University of California at Berkeley (Boalt Hall). My thanks to Lynn Baker, Sarah Cleveland, Mark Friedman, Douglas Laycock, John Robertson, and William Powers for their insights. I am also grateful to U.T. student Katherine Chiarello for her valuable research assistance.
Paul M. Van Arsdell, Jr. Memorial Lecture: The Beam in Thine Eye: Judicial Attitudes Toward "Early Offer" Tort Reform
Jeffrey O'Connell & Ralph M. Muoio | 1997 U. Ill. L. Rev.
Professor O'Connell has recently drafted a statute that would allow a defendant in a personal injury tort suit to make an early settlement offer to pay an injured's economic damages. Under his proposal, a defendant need not make such an offer and if no offer is made, normal common-law tort principles apply. However, if an offer is made and a claimant does not accept the offer, the claimant will face a higher burden of proof at trial and the defendant will be held to a lower standard of care. In this article, originally delivered as a lecture at the University of Illinois College of Law, Professor O'Connell and Mr. Muoio respond to one of the possible stumbling blocks this proposal faces: the possible resistance of the judiciary to such reform. They begin their response by illustrating the irony of such a stance given the broad immunity afforded the judiciary. They then contrast this immunity with the expansion of liability for other professionals largely propelled by that same judiciary. Finally, the authors conclude that, given the unfairness often involved in second-guessing professional decisions, the early offer approach is a better solution to dealing with tort liability: The judiciary therefore should be receptive to it.
This paper was delivered as part of the Paul M. Van Arsdell, Jr., Memorial Lecture Series on Litigation and the Legal Profession at the University of Illinois College of Law, on November 7, 1996; its language, format and flavor reflect that origin. (Who was it who once said 'A lecture is meant to offend the specialist'?)
* Samuel H. McCoy, II & Class of 1948 Research Professor of Law, University of Virginia. B.A. 1951, Dartmouth College; J.D. 1954, Harvard University.
** Clerk to the Hon. Albert V. Bryan, Jr., U.S. District Court for the Eastern District of Virginia. B.A. 1991, Columbia University; J.D. 1996, University of Virginia.
The Misunderstood Alliance Between Sports Fan, Players, and the Antitrust Laws
Stephen F. Ross | 1997 U. Ill. L. Rev.
The baseball strike and the ongoing hostilities between the players' association and owners have evoked criticism and frustration among fans and others. Although the players successfully defeated the owners' most recent attempts to reduce major league competition, the threat of future imposition of competitive restraints by the owners remains. In this article, Professor Stephen F. Ross argues that blanket restraints on the market for players affirmatively inhibit on-the-field competition and consequently offend the Sherman Act.
The article begins with the proposition that monopsony--price-fixing behavior by buyers', rather than sellers', cartels--implicates the Sherman Act. Restraints on competition for players' services are thus not exempt from the antitrust laws. As the author notes, restraints of trade imposed by sports leagues are subject to antitrust scrutiny under a rule of reason: under the standard set forth in NCAA v. Board of Regents, such restraints are permissible where reasonably tailored to promote competitive balance.
Professor Ross then applies the NCAA standard to blanket restraints imposed by sports leagues. He first demonstrates that the waiver rule employed by some leagues is tailored to promote league competition, because it allows inferior teams with large payrolls to rapidly improve in the standings by acquiring superior players. To counter the owners' arguments that restraints such as salary caps are necessary to maintain league competition, Professor Ross relies on empirical evidence of the effect of these restraints on competitive balance and demonstrates that, in addition to not promoting competition, blanket restraints affirmatively harm competitive balance. Salary caps, the author argues, not only transfer wealth from players to owners, but facilitate bland, uninteresting seasons in which the same teams have consistently good or bad win-loss records.
The article includes a discussion of less restrictive means of promoting competitive balance, including revenue sharing and progressive salary caps, which might pass antitrust muster. Professor Ross concludes that free competition in the player market protects the interests of both fans and players, such that an alliance of consumers and players might be an effective way to combat the threat to baseball which blanket restraints may pose in the future.
* Professor of Law, University of Illinois. B.A. 1976, J.D. 1979, University of California (Berkeley). Subject to the usual disclaimers, the author thanks Lee Goldman, Kit Kinports, Bob Lucke, Roger Noll, Tom Ross, Jack Sidorov, and Andrew Zimbalist for helpful comments.
The Standard of Proof at Sentencing Hearings Under the Federal Sentencing Guidelines: Why the Preponderance of the Evidence Standard Is Constitutionally Inadequate
Stephanie C. Slatkin | 1997 U. Ill. L. Rev.
In 1984 Congress, responding to public dissatisfaction with the perceived arbitrariness of existing sentencing schemes, vested in the U.S. Sentencing Commission the authority to devise stringent federal sentencing guidelines. As part of the effort to divest federal judges of discretion in sentencing, the Sentencing Guidelines created a bifurcated system of fact-finding that allows a prosecutor to allege and the judge to find certain facts at the sentencing phase of a criminal prosecution. If these facts constitute "relevant conduct" or "aggravating circumstances" as defined by the Sentencing Guidelines, the presiding judge may depart upwards from the sentencing range prescribed by the guidelines. Perhaps more importantly, proof of these collateral facts by a mere preponderance of the evidence is sufficient to warrant departure.
In this note the author challenges the constitutionality of applying the preponderance standard to the sentencing phase of a criminal proceeding. Arguing that the Sentencing Guidelines impermissibly evade due process requirements by reclassifying elements of charged offenses as sentencing factors, the author recommends a return to the beyond a reasonable doubt standard for proof of sentencing factors that are, in actuality, uncharged offenses or elements of the underlying offense. Additionally, for traditional sentencing factors that are in fact collateral, the author advocates use of the clear and convincing evidentiary standard.
Money for Nothing — Or Dire Straits? Public Funds and the Derivatives Market
Charles D. Thompson II | 1997 U. Ill. L. Rev.
Since the heavily publicized bankruptcy of Orange County, California, derivative markets have been the subject of public and legislative debate. Much of the publicity has incorrectly painted derivative instruments as the cause of recent public investment fund losses. Some legislatures have responded by entirely prohibiting the investment of public funds in derivative markets. Derivatives are complex financial tools, but when properly understood and utilized, they can be a key component of a municipality's portfolio. This note proposes a regulatory framework that will allow investment in derivatives by those municipalities equipped to handle the sophisticated tools, while limiting such investment by those municipalities unable to adequately protect themselves.
Cancerphobia Damages in Medical Malpractive Claims
Jay E. Znaniecki | 1997 U. Ill. L. Rev.
In many medical malpractice claims, plaintiffs seek damages for mental distress and anguish due to fear of cancer resulting from the alleged negligence. These claims are gaining wide acceptance by courts, and many courts have dispensed with or severely stretched the traditional requirement of a physical injury or manifestation in order for a plaintiff to recover for mental distress. This note advocates the complete elimination of these requirements. This note suggests that courts instead use a strict reasonableness standard to prevent unfair damage awards.
Harry D. Krause
A Tribute to Harry D. Krause: Educator, Scholar, Law Reformer
Thomas M. Mengler | 1997 U. Ill. L. Rev. 9997
I first met Harry Krause in 1985 after I had joined the Illinois law faculty as an Assistant Professor. Illinois then, as now, was known for a strong and productive faculty. Its faculty fulfilled admirably the three missions of a law school: teaching, scholarship, and public service. We were (and still are) renowned for our dedication to teaching and pedagogy, particularly through our authorship of casebooks, treatises, and hornbooks. The scholarly output (and there always was a great deal of it) was integrally linked to the important issues of law, the legal profession, and society. And our faculty then (and now) followed up those gems of insight contained in books, treatises, and articles with substantial participation in significant international, national, and state law reform projects. This simple recipe for excellence in legal education--of faculty working to pass on their scholarly insights to students in the classroom, in law school textbooks, as well as in treatises and articles, and through active participation in law reform projects--is one that few other national law schools have taken as seriously as did the Illinois law faculty that I joined in 1985.
And few law faculty, whether at Illinois or elsewhere, have fulfilled that tripartite mission as well as Harry Krause has. Harry Krause's thirty-year engagement to family law has benefited thousands of students who either have taken Harry's classes, learned from his casebooks, hornbooks, and treatises, or, in many cases, done both. Krause's scholarship has revolutionized our thoughts about illegitimacy through his ground-breaking work, Illegitimacy: Law and Social Policy, concerning child support through his highly regarded book, Child Support in America: The Legal Perspective, as well as regarding a whole host of other family and child law issues. Through his eighteen books and more than fifty articles, reviews, and essays, Harry Krause's writing covers virtually every significant family law issue.
Most significantly, the wisdom of his insights has been recognized, and it has mattered. Harry Krause can rightfully claim credit for a significant hand in most of the important child support enforcement and welfare legislation of the past twenty-five years. Between 1968 and 1972, for example, Krause served on the Advisory Board for the National Council on Illegitimacy. In 1973, Harry served as Consultant to the Senate Finance Committee on child support enforcement legislation and welfare law reform. Between 1984 and 1987, he served as a Member of the National Advisory Panel on New Models for Establishing Child Support Levels, a panel established by the U.S. Department of Health and Human Services. Krause has advised a number of special task forces on family law for the ABA, he has served as advisor to the American Law Institute on its Principles of Family Law project, and, since 1991, he has been an Illinois Commissioner of the National Conference of Commissioners on Uniform State Laws. Federal or state legislation resulted from most of those efforts.
Harry's influence has not been limited to national and state projects. In 1990, the Department of State selected Harry as U.S. Delegate to the Hague Conference on Private International Law, and he has been selected to work on a number of other international commissions.
I mention these service activities (and they are only the tip of the iceberg) to try to provide some picture of the enormous impact Harry Krause has had on law reform in the family law arena. No ivory-tower scholar here, Harry Krause's long love affair with family law, although undertaken in the remote regions of Urbana-Champaign, has touched every city and town in America, and most parts of the world too. It is a career of teaching, scholarship, and service that few of us can match, and all of us should admire.
It has been twelve years since I first met Harry Krause. During that time, law schools and law faculty have come under greater scrutiny for their relevance to the legal profession. Questions are being asked about whether we adequately prepare our students for the practice of law; whether our scholarship contributes to development of the law and improvement of our society; and whether our efforts at outreach are meaningful and fruitful. As I and the other Illinois law faculty assess ourselves and ask whether we are delivering on our obligations to educate students to become leaders among the bar and bench and to provide significant service to the profession and to society, I am pleased and grateful that Harry Krause has shown and continues to show us the way.
* Dean, University of Illinois College of Law. B.A. 1975, Carleton College; M.A. 1977; J.D. 1981, University of Texas.
Harry D. Krause
University of Illinois Law Review | 1997 U. Ill. L. Rev.
Lining the hallway outside the deans' offices of the University of Illinois College of Law are portraits of the great scholars who have taught at Illinois over the years: Cleary, Cribbet, LaFave, Benfield, Hay, and others. One portrait stands out from all the rest--that of Professor Harry Krause. Where others are pictured holding a copy of their casebook or treatise, Professor Krause holds the travel section of the New York Times. Where others are wearing conservative ties, his is a bold and colorful nautical design. Where others look stern, or at least serious, Harry Krause shows the unmistakable traces of a smile.
On many a morning, promptly at 8:30, Professor Krause enters the classroom with the Times in hand, ready to share with his students the latest bit of news as it relates to the family--the story of the last living Confederate widow, a case of international parental kidnapping, or a witty cartoon. His love of travel and of sailing are as apparent in class as they are in the portrait. And the smile reveals a wicked sense of humor and a willingness to advance a provocative position to engage the students in a debate about policy.
That portrait is included in this tribute issue dedicated to Professor Krause, along with personal remembrances by his colleagues, friends, and former students, a review of one of his books, and articles on important family law issues by some of the most highly regarded scholars in the field.
As a recent student of Professor Krause's, having taken Family Law in the fall of 1996, I was not fully aware of his stature, nationally and internationally, until work began on this issue of the Law Review. The response to our requests for contributions to this issue was so overwhelmingly positive that I began to appreciate my great good fortune to be his student. But even if he were not the author of ground-breaking scholarship, the drafter of influential legislation, and the spokesperson for the rights of the vulnerable that he is, he is a wonderful teacher and deserving of such a tribute.
If I have one impression of Professor Krause that will stay with me long after I leave law school it is of his love of words and his gift of using language so beautifully and effectively. Professor Turner's book review talks about his "style and panache." As a lover of words myself, I recall a conversation with Professor Krause about my correspondence with the writers who contributed the tributes for this issue. I referred to him, in jest, as the "tributee." He rose from his chair, lifted a well-worn copy of the Oxford English Dictionary from the shelf above the desk, and informed me that there is indeed such a word.
Professor Krause has increased my vocabulary, challenged my assumptions about gender and family, influenced my choice of career path, and extended me the courtesy of treating me as a colleague even as I prepare for my final set of exams. I take this opportunity to extend my personal thanks to him with the knowledge that I speak for the many who have been similarly touched by his teaching since his arrival at Illinois in 1963.
The editors and members are pleased to dedicate this issue of the University of Illinois Law Review, with gratitude and admiration, to Professor Harry Krause.
Harry Krause was born in Germany in 1932 and grew up in war-torn Berlin, witness to bombing and strafing and the street battle in 1945 that marked the Soviet conquest and the Fourth of July fireworks that initiated the American liberation of West Berlin. Involved with a new liberal and social democratic youth organization, he quit when the movement was taken over by communists. In 1948, he and his classmates were flown out of Berlin to hold school in Frankfurt, as the Berlin schools were closed for lack of heating fuel resulting from the Soviet blockade. He was arrested in 1949 by Soviet guards while legally seeking to cross the East German border and escaped after three days in custody. The following year, after having changed schools more than a dozen times in twelve war and post-war years, he completed the gymnasium in Berlin-Wannsee with honors.
Professor Krause's university career began with the study of economics at the Free University of Berlin, a new institution which had been established in response to the Communist takeover of the university in the Soviet sector of Berlin. The completion of his B.A. degree at the University of Michigan in 1954 was the result of an invitation to join his mother's brother in Ann Arbor. Professor Krause recalls that it was an easy decision to make. Kindly occupation soldiers had already introduced him to Hershey bars, ice cream, and doughnuts. And teenage idealism, a sense of adventure, and a total disillusionment with the post-war revelations of Germany's horrid Nazi experience prompted him to accept the invitation. To young Krause, the United States was a functioning democratic country that had liberated West Berlin from Soviet occupation in 1945, had saved it by means of the airlift in 1948, and had become home to his uncle and grandfather.
Upon his graduation, he was drafted in to the U.S. Army where he learned how to climb telephone poles, send and receive Morse code, and drive military trucks. He then came full circle from "occupee" to "occupant" when he was sent back to Germany to run a division artillery headquarters operations office in Frankfurt. That year, 1955, was noteworthy for his receipt of the U.S. Army's World War II German Occupation Medal, still his favorite decoration, and his introduction to his future wife, Eva, then a student at Frankfurt University.
Like many returning veterans, he took advantage of the educational opportunities then available and entered the University of Michigan Law School. He graduated in 1958, having served on the law review, been elected to the Order of the Coif, and ranking third in his class. Once sure of a job after graduation, he returned to Germany to marry Eva.
From 1958-60, he was an associate at the Washington, D.C., law firm of Covington & Burling, specializing in corporate tax law. In 1960, he joined Ford International. When he decided to enter academics, there were a number of schools eager to hire a young man with such impressive credentials. It is Illinois's good fortune that the Krauses saw Champaign-Urbana as the ideal place to raise a family as well as home to a great law school.
The family that the Krauses planned to raise here consisted of three sons--Philip, Thomas, and Peter. The eldest, Philip, was born in Washington, D.C., and is now a physician doing virology research with the FDA. Second son, Thomas, was born during his father's employment with Ford in Michigan, and is now a patent and government lawyer with Covington & Burling. Peter, the youngest, was born in Urbana and is a computer consultant in Chicago. All three sons are married with children of their own. The Krause grandchildren, Benjamin, Joseph, Aiesha, and Elizabeth, are pictured on the dedication page of their grandfather's latest edition of his Family Law Nutshell. More recently grandson Austin Trey joined the crew.
Professor Krause was first published as a student in the Michigan Law Review--three times! He has been similarly prolific in the years that followed. A complete bibliography follows this biography. His casebook, Family Law: Cases, Comments, Questions, will shortly appear in its fourth edition, the first with coauthors--J. Thomas Oldham and Linda D. Elrod, contributors to this tribute issue. The student's friend, Family Law in a Nutshell, was recently published in its third edition, which has been as well received abroad as it has in the United States. A recent book review which first appeared in the Monash (Australia) University Law Review is reprinted in this issue.
Professor Krause is as active an editor as he is an author. He has served on the board of editors of Family Law Quarterly (1971-present), the Journal of Legal Education (1988-91), the American Journal of Comparative Law (1991-present), and other publications.
Not content to merely advocate law reform in his scholarly writings, Professor Krause has been an influential voice in law reform, nationally and internationally. He served as Illinois Commissioner to the National Conference of Commissioners on Uniform State Laws from 1991-97. He served as Reporter for the Uniform Parentage Act (1969-73), the Uniform Law Commissioners' Adoption Committee (1979-84), and the Uniform Putative Fathers Act (1985). He also he drafted the Uniform Parentage Act which has been adopted in nineteen states, including Illinois, and influenced many others. Elected to the American Law Institute in 1977, he now serves as advisor to an ambitious project on dissolution of marriage, a portion of which is the subject of Professor Oldham's article in this issue. Professor Ira Ellman, chief reporter for the ALI project, and Professor Margo Melli, the original reporter, are also contributors to this issue.
Internationally, Professor Krause was a member of the U.S. Delegation to the Hague Conference on Private International Law from 1990-93, which drafted a treaty governing international adoptions. He is a member of the International Academy of Comparative Law and was U.S. reporter at Congresses in Uppsala (1966), Teheran (1974), Budapest (1978), Caracas (1983), Sydney (1986), and general reporter at Athens (1994).
Other professional activities have included the American Bar Association, the Illinois Bar Association, the American Association for the Comparative Study of Law, of which he has been a Director since 1980, and the International Society of Family Law, where he was Vice President from 1973-77 and a member of the Executive Council since. Professor Lynn Wardle, whose article on gay parenting appears in this issue, was recently named Secretary General of ISFL.
While his German Occupation Medal may be his favorite decoration, he has a long list of honors of which he can be very proud: Guggenheim Fellow (1969-70), Associate, University of Illinois Center for Advanced Study (1970, 1979), German Marshall Fund U.S. Fellow (1977-78), Hewlett Fellow, Australia (1984), German Academic Exchange Service Fellow (1984), and, most recently, the Alexander von Humboldt Foundation Research Prize in recognition of his outstanding accomplishments in research (1992).
As a teacher, Professor Krause found time to visit an interesting variety of institutions: Fulbright Professor at the University of Bonn (1976-77), Visiting Professor, University of Michigan (1981), Visiting Fellow, Wolfson College, Oxford University (1984), Visiting Professor, University of Miami (1987), and Culverhouse Professor, Stetson University (1991). While at home at Illinois, Krause served as Alumni Distinguished Professor of Law from 1982-89 and Max L. Rowe Professor of Law from 1989-94.
In 1994, unwilling to actually retire but motivated to take advantage of the University's quirky retirement option, Krause took emeritus status but was quickly "rehired" to teach in the fall semester of each year. The new arrangement gives Professor Krause time to devote to writing and other professional activities but also allows him to enjoy his hobby--ocean sailing. After exploring the Florida keys in the aptly named "Nutshell," he has recently purchased a new sailboat, the "Lizzie K.," named for his granddaughter. Qualified by the U.S. Coast Guard as a charter captain, he is capable of taking paying passengers offshore in boats up to sixty-five feet.
As this issue goes to press, Professor Krause is looking forward to a summer filled with lectures and seminars at German universities and academic congresses and professional meetings in Germany, Switzerland, and South Africa. In the fall, he will be back at his post at the University of Illinois, teaching family law and family policy.
A Tribute to Harry D. Krause: Teacher
Nancy Rink Carter & Robert L. Carter | 1997 U. Ill. L. Rev.
Returning to law school in the fall of 1971 after having worked for the State of Illinois (in Springfield) and Uncle Sam (in Vietnam), in the case of one of us, and for a U.S. Representative and later an agency lobbying Congress for quality standards for day care in the other's case, was quite a change of lifestyles. Many of our fellow law students had not yet experienced the worlds of work or war. Several faculty members at the law school were our age or younger and just beginning their careers.
Our initial encounter with Professor Krause was in first-year torts class. He had joined the law school faculty in 1963 and was already recognized as an authority in the field of family law by 1971. He conducted that first-year torts class with his characteristic thoroughness and dry wit. While working through the Restatement of Torts, we were exposed on many occasions to hypotheticals which combined Professor Krause's knowledge of the subject matter with this subtle sense of humor and heightened sense of irony.
By great good luck, as we were seeking part-time employment in the summer before our second year of law school, Professor Krause was seeking assistants to do legal research. Thus began a two-year association, both professional and personal, with Harry and Eva Krause and their three young sons. Our friendship with the Krause family greatly enhanced our law school experiences and, indeed, our lives at that time. Working closely with Professor Krause gave us a first-hand knowledge of his immense research and organizational skills as well as of his sound scholarship and strong command of his subject matter. Our boss was indefatigable as he went about his duties of teaching, researching, writing, and securing grants to continue his work in the areas of family, social welfare, and comparative law.
Many of the problems which Professor Krause addressed in the early 1970s represent some of the most critical concerns which our society is facing today. Under his direction we researched issues related to illegitimacy, paternity, welfare, social security, and the problems of the aging population. Thinking back to our discussions in and out of class with Professor Krause in those years, the matters which he raised as "purely hypothetical problems" dominate many of the legal debates in the United States in the 1990s. The thoughtful discussions we had then have served us well in our legal careers and as citizens in a changing society.
We were privileged to join a seminar which Professor Krause conducted on comparative law for graduate law students after our first year of law school. In that seminar, we met and shared information with law school graduates from many countries. With Professor Krause's guidance we examined and evaluated the various approaches and assumptions made in different cultures when addressing similar legal issues. During that same time, it was not uncommon for Harry and Eva to welcome the seminar participants into their home for evenings of good conversation and sociability with them and other faculty members and their spouses.
Thanks to the opportunities which the Krauses provided the seminar participants to meet and share ideas and experiences amidst their young family of three charming sons, many international friendships developed. Harry and Eva were the catalysts for our long-standing friendships with Sophia University Professor of Law Minoru Ishikawa and his wife, Seiko, of Tokyo, Japan, and Kevin O'Connor, the first Commissioner of Privacy for the Commonwealth of Australia, and his wife, Bernadette, of Sydney and Melbourne, Australia. We have been privileged to share a number of evenings of lively conversation and good fellowship with the Ishikawas and the O'Connors and their children in our home in Ottawa, Illinois, over the past twenty or so years. These enduring friendships began in Professor Krause's comparative law seminar and developed in the warm atmosphere of Harry and Eva's home in Urbana, something for which we will always be grateful.
Professor Krause embodies the characteristics of sound scholarship, strength of character, conviction and principle, an appreciation for family values, and a concern for the betterment of society. We feel fortunate to have been taught by him and to have worked for him during our law school days. We are privileged to join this tribute to him. Describing our personal reminiscences has rekindled many good memories of our former association. It is with great joy that we wish both Harry and Eva many happy years of "semi-retirement" with time to enjoy their family, their friends, and their intellectual pursuits.
* Staff Attorney, State's Attorneys Appellate Prosecutor, Third Judicial District, in Ottawa, Illinois. J.D. 1974, University of Illinois College of Law.
** Chief Circuit Judge of the Thirteenth Judicial Circuit, State of Illinois, LaSalle, Bureau, and Grundy Counties and past president of the Illinois Judges Association. J.D. 1974, University of Illinois College of Law.
A Tribute to Harry D. Krause: Colleague and Friend
John E. Cribbet | 1997 U. Ill. L. Rev.
It is a privilege for me to be able to write a short tribute to my good friend, Harry D. Krause, Max L. Rowe Professor Emeritus at the University of Illinois College of Law. Harry has been a colleague of mine since 1963 when he joined the law faculty at Illinois. I would be proud to say that I recruited him while I was Dean of the College but that honor goes to the late Dean Russell N. Sullivan who spotted Harry as a rising young star, fresh from a stint as an associate with Covington & Burling and as an international lawyer with Ford Motor Company. We knew that he would bring strength to our comparative and international law programs, but I doubt if anyone, including Harry, could have foreseen that he would become one of the preeminent family law scholars in the world. It is a long step from Ford Motor Company to a deep involvement in one of the important social problems of our times--the role of the family in contemporary life!
When I was in law school, at the end of World War II, the family law course went by the quaint title, Persons, and was viewed as one of the "cats and dogs" of the curriculum to be assigned to an unsuspecting young faculty member as a "filler" but not as an area of serious research.
Although this was true in Anglo-American law, the Romano-Germanic legal systems had treated family law as an essential link between law and culture and as one of the most demanding fields of law. Harry, with his comparative law background and interests, came naturally to a broad view of the importance of family law. How well he succeeded is summed up by Harvard Professor Mary Ann Glendon in an elegant tribute--Harry D. Krause: Scholar for All Seasons--published in The Journal of Contemporary Health Law and Policy1 and reprinted here as one of the tributes to Professor Krause. I would like to incorporate Professor Glendon's remarks by reference since they capture so well the essence of Professor Krause the scholar.
True scholarship, in any field, is a lonely business. It requires intellectual discipline and a willingness to resist the lure of immediate satisfactions in an effort to cast some light on the more deep-seated problems of a given area of the law. It involves a serious attempt to see the "Big Picture" and to share one's own perspective with other scholars in the field. It is one reason why scholars strive for the "immortality of a footnote" because even small references indicate that the result of one's research is not simply an offer lanced into the void. In this sense, Professor Krause is one of the immortals who has seen the broad pattern of a significant area of the law and succeeded in passing on that vision to others who have chosen to labor in the same vineyard.
Although Harry is a true scholar--one of the best it has been my privilege to know--he has never been a scholar purely for scholarship's sake. His myriad books, articles, and reports carry a common theme of involvement between the academy and the profession. As a member of the American Law Institute, the National Conference of Commissioners on Uniform State Laws, the American Bar Association's various committees on Family Law, etc., Harry has put his ideas and scholarship into direct use in seeking a more rational system of family law in all of its many manifestations. As mentioned earlier, it is quite fortunate that Harry has played a role in European law as well as in American law, and this has meant the enrichment of both legal systems. He has been a Guggenheim Fellow, a Fulbright Scholar, a Fellow of the German Marshall Fund of the U.S., and has lectured on a nearly regular basis to a large variety of American, English, and European universities. Truly, in Professor Glendon's fine phrase, he has been a "Scholar for All Seasons."
I am always dissatisfied with my tributes to retiring colleagues because the skeleton of achievements, contributions, etc. so lacks the warmth of the vital dynamic person being honored. How does one convey the countless discussions about life, law, and other things that matter and are so much a part of the collegiate atmosphere? Harry was always a prime participant in these discussions, and his dislike of cant and pomposity kept many a discussion moored to reality. He saw law with the blinkers off and helped others to do the same. Or how does one catch the full favor of the social life of the college to which Eva, as well as Harry, contributed so much? Suffice it to say that Harry and Eva have been a vital part of this college of law since 1963, and it would take volumes to describe their material contributions to us all--faculty, staff, students, and alumni. Fortunately, they are only quasi-retiring so we will have them with us at least one semester each year for the indefinite future. Meanwhile, they will enjoy international travel, their Florida home, and the boats that are so much a part of their lives. Good sailing, Harry and Eva!
* Corman Professor of Law Emeritus, University of Illinois College of Law. A.B. 1940, Illinois Wesleyan; J.D. 1947, University of Illinois; LL.D. 1971, Illinois Wesleyan.
A Tribute to Harry D. Krause: International Scholar
Dieter Giesen | 1997 U. Ill. L. Rev.
If Professor Harry D. Krause and I had not met each other in Birmingham, England, for the first time, our first encounter might well have been in Germany. Professor Krause's visits there are frequent, and his relations to the country in which he was born in 1932 are close, a fact easily attainable from a number of publications and lectures in German as well as from various visiting fellowships, e.g., as a Fulbright Senior Research Professor in Bonn (1976-1977) or as a Fellow for the German Academic Exchange Service (Deutscher Akademischer Austauschdienst) in 1985. In 1992 he became Alexander von Humboldt Prize Winner and, as such, a member of one of his native country's most distinguished worlds of learning and scholarship in quest of excellence in his fields of expertise.
Our meeting in Birmingham in 1973 resulted from one of our mutual interests in the wide field of law studies: the family law. Harry Krause--who is to be numbered among the most highly regarded and influential family law experts in the U.S.A.--ardently supported the project to found the International Society on Family Law, the function of which he himself so aptly described as going "on to build bridges between continents."1 He served as the Society's Vice President from 1973 to 1977; since then he has acted as a Member of the Executive Council.
His dedication to "building bridges" constitutes one of the main columns on which the body of Harry Krause's academic work rests (a second one being family law), and he continues to build bridges for scholars all over the world by way of comparative law. The great legal scholar Max Rheinstein, who had fled to the United States from a Germany in the grip of Nazi rule, entrusted the young Harry Krause, still in the early stages of his university career at the University of Illinois, with the task of delivering a book-length chapter on "Kinship Relations" for the International Encyclopedia of Comparative Law.
Harry Krause adheres to the conviction that the knowledge of the ways foreign law systems handle the problems common to any civilized society sharpens the scholar's eye for defects and shortcomings of home-grown solutions. In promotion of this, he freely shares his insights and abundant experience on family matters with anyone seeking his advice--and many do. I will return to this point. Harry Krause adds to his common-law education a civil-law approach that makes his work in comparative law all the richer. The civil-law background may also have influenced his tendency to family law, because in civil-law systems family law has always ranked as an important feature linking law with society, whereas the common-law countries only more recently have abandoned their traditional reluctance to regulate the field of family relations.
This special background combined with his personal closeness to Germany serves to explain the rather uncommon event of an U.S.-American professor being invited as an "expert" by the Parliamentary Enquiry Commission "Frau und Gesellschaft" (Woman and Society) of the Federal Republic of Germany, as happened to Harry Krause in 1979. Harry Krause most willingly dedicated his time to enlighten the Commission on the American law and social progress toward equality for women.
Besides his work in comparative law, the study and enhancement of America's family law is the field Harry Krause pursues with never-ending zest and enthusiasm. His earlier writings comprise the issues of business and torts law; welfare law and medical law also have been in the focus of his attention. Once he presented me, aware of my deep involvement in medical law, with a gracious gift of all U.S.-American medical law handbooks. This has been of particular help to my own research in this field. Still, family law is the topic where Harry Krause's heart and mind feel most at home. His particular interest lies with the protection of the weakest players in the court of law: the children. He started early to champion those children who were labeled with the stigmatizing tag of illegitimacy. As early as 1966, in a time when family law in the U.S. legal community was still thought to be quintessentially private and hardly worth scholarly discussion, he stepped out into the open with a proposal for a "Uniform Act on Legitimacy" and invoked the U.S. Constitution Equal Protection Clause on behalf of nonmarital children. By doing so he indicated which way he thought--and thinks up to now--family law should develop: away from something private and local to a matter of public concern, wide parts of which are to be governed by federal regulations. His first academic appearance in this area seems to breathe a prophetic life: it describes well in advance how, in the years to come, family law in the United States would change its course to become one of the most highly debated matters, in fact, "a major battleground in contemporary culture struggles."2
Harry Krause did his best to influence the development of family law. Not only is his list of publications rich with articles and books dealing brilliantly and highly originally with (among others) questions of child welfare and support, he also supplied amicus curiae briefs to important cases, such as Levy v. Louisiana,3 the first court decision on equal protection and illegitimacy. When that Court finally decided to apply the equal protection concept to the situation of children born out of wedlock, Harry Krause had achieved one first major victory. For him it was a victory of "rationality." As he still says, "fortunately--and not accidentally--the equal protection test is 'rationality.'"4 But it would not have been like him to pause and rest, now that an important issue was settled. With studies in Scandinavia and Germany, he enriched the discussion in the United States of blood testing as a means to establish paternity. Keeping in pace with family law development, Harry Krause entered the national debate on evasion of child support, a topic that still receives his attention today.
All the while taking a firm stand and expressing a well-founded personal view in his writings, Harry Krause nevertheless is meticulously fair and nuanced in whatever he produces. As Mary Ann Glendon put it recently, his aim is to gain "knowledge rather than popularity."5 It is not above him to point out potential misuse of the rights he promulgates; his essays give a balanced survey on whatever topic is treated. This fairness may explain why I found his name on the Internet, on a news page from an organization called Friends of Choice for Men,6 the aims of which could not be in steeper contradiction to Harry Krause, a stout defender of the duty of any father to support his child. Yet, even this rather dubious organization refers its members to Krause's book Family Law7 for all questions of paternity, rightly calling it an excellent guide on what the law is.
It would mean doing Harry Krause a great wrong to title him a colorless academic--moreover it would be a lie. Prominent among his work is his commitment to public service. Besides influencing the major debates in family law by scholarly activity and amicus briefs, Harry Krause has devoted uncountable hours of work to participation in law reform projects. He acted as a reporter and draftsman for the Uniform Parentage Act (1969-73) as well as a reporter for the Study Committee to Revise the Uniform Adoption Act (1975-85) and for the Committee to Draft the Uniform Putative Fathers Act in 1985, even before he became a Commissioner on Uniform Laws and a Member of the Council, Section on Family Law. Regarding this immense investment of time, it is a sign of Harry Krause's unrelenting energy that he also took part in diverse committees of the American Bar Association, the American Law Institute, and a number of other regional and national conventions, all covering topics of special interest for him, such as determination of paternity, child support, and family dissolution.
Probably as a result of his comparative law studies, his involvement in those matters did not stop at the national border. As I mentioned above, he actively supports the International Society on Family Law; moreover, he reported on diverse occasions on various American law topics for the International Academy of Comparative Law (of which he is a member), and he represented the U.S. Department of State during the Hague Conference on Private International Law, when a multilateral treaty to govern international adoption was negotiated. Not to forget are the visits he paid to Oxford University, England, or the stay as Hewlett Fellow in Australia. To give a full and detailed account of his international activities would lead to a mind-numbing list. Bearing in mind the little section I have presented here, it should not have come as a surprise to me when I ran into him in Sydney, Australia, completely unaware of his being in town or on that continent. To use a phrase coined for the former German foreign secretary, Mr. Hans Dietrich Genscher, it would not have come as a surprise if he had run into himself!
This is not to say that he took his university duties lightly. His teaching subjects mirror his main interests: family law and comparison of law. Especially his lectures on comparative law, embedded quite often in family cases, must be an intellectual experience for students. It is here that Harry Krause's foremost qualities, an inquiring, razor-sharp mind combined with his winning personality, surface most clearly and are likely to win more and more believers to what might be called the High Altar of comparative law. And when I recall him telling the story of how one of his students, after a visiting lecture of mine at Illinois, proposed to keep me and send Harry Krause back to Germany, this may well have been a try to reward the German students with a glimpse at one of the sharpest minds in comparative family law.
His inclination to teaching shines through in some of his main books on family law. Family Law: Cases, Comments, and Questions, now in its third edition, is a magnificent opus directed at the student learner as well as the teacher. Harry Krause provides the reader with a splendid and up-to-date handbook on family law, an achievement so much more laudable because the rapid development of the subject forces the author to exchange considerable parts (up to seventy percent of the contents!) for each new edition. Besides the work of selecting and editing from the amorphous mass of literature and cases exactly the material necessary to enlighten the relevant parts of the law, Harry Krause's own additions make this book such a treasure. His stimulating critical questions and notes probe deeply into the fascinating layers of family law in an inspiring and uplifting way. They give evidence of an analytic and didactic approach that has yet to find its equal in the field of family law. The reader follows them in awe and is always anxious to get to know the author's answers to the questions he put up beforehand.
Harry Krause's Family Law in the Black Letter Series, available now in a second edition, is again a book concentrated on providing the student with the necessary knowledge of what is in his own words "the most exciting course in the curriculum, with the broadest social relevance."8 And this is from someone who is sure to know, and who takes interest in his students: the preface to the second edition offers some short but encouraging advice on how to handle exams--"'law' should be perceived by you as fun, and examinations as competitive games."9
But it is Harry Krause's Family Law in a Nutshell that seems to be the closest to the author's heart. This book addresses itself not only to the legally educated, but strives to provide "any intelligent reader" with "an understandable and accurate description of law."10 A devoted family man himself (the third edition is dedicated to his four sweet grandchildren), Harry Krause wants to open the "closed book" of family law to all parties concerned--a self-imposed exercise that is once again solved brilliantly.
I will abstain from probing any deeper into the writings of Harry D. Krause. His scholarly output is way above what could be expected even from a gifted scholar. The range of subjects covered by him is exceptional: Harry D. Krause never contented himself with one subject. The reader is referred to his impressive bibliography.11
How Harry Krause manages besides all these time-consuming tasks to fulfill the office of editor for several journals, not the least of which are the Family Law Quarterly, the American Journal of Comparative Law, and the Journal of Contemporary Health Law and Policy, will stay his secret. In addition to this, he undertook the enormous task to edit three volumes of the International Library of Essays in Law and Legal Theory on family law in the common-law world. Here he proved once again his comprehensive knowledge of the new trends in family law and literature; his delicate selection of essays out of the limitless mass of contributions to this topic deserves special mention. I strongly suspect Harry Krause to have a secret and unseen power supply somewhere under his house's roof or basement--or perhaps it is his ability to relax when with friends and family, at Berlin, Champaign, or Oxford, and a few other select places where good fortune caused us to meet in years of happy memories. I recall many evenings shared with a good drink (mostly delicate German White or French Claret12), excellent food, and splendid conversation. It is an honor and a pleasure to be able to count Harry Krause among my friends. I greatly appreciate the possibility given by this essay to mirror some of the affection and admiration I hold for this eminent scholar: long may he live, ad multos felices annos.
* Dr.iur. (Bonn), M.A. status (Oxon.); Professor of Private and Comparative Law, Director, Institute of Private and Comparative Law, Head, Working Centre for Studies in German & International Medical Malpractice Law, The Free University of Berlin, Germany.
A Tribute to Harry D. Krause: Scholar for all Seasons
Mary Ann Glendon | 1997 U. Ill. L. Rev.
When work began on the International Encyclopedia of Comparative Law in the 1960s, the organizers of that ambitious project scoured the world to find just the right author for each chapter. The standards set by the general editors at Hamburg's Max-Planck-Institute were exacting: every contributor had not only to be eminent in his field, but capable of presenting the major approaches taken by the world's legal systems for each assigned topic. Most of the writers selected were already at the summit of their academic careers. For the book-length chapter on "Kinship Relations" in the Family Law Volume, however, the editors turned to a young American named Harry Krause. The work of the University of Illinois assistant professor had already attracted the attention of the editor-in-chief of the Family Law Volume, Max Rheinstein, one of the great legal scholars who fled to the United States from Germany in the 1930s.
It was from Max Rheinstein, with whom I was working in the late 1960s, that I first heard of Harry. Today, nearly three decades later, I count Harry as a kind of kinsman--related to me and many others in an extended family founded by Rheinstein, the teacher who encouraged and inspired so many of us to follow him into comparative legal scholarship. So if this dedicatory essay sounds as though it were written by an admiring cousin, that is because I have followed Harry's career with "familial" as well as collegial interest. And what a career it has been!
When Harry began working in family law, the field was, as he has written, "near the bottom of the curricular totem pole," often just "a subsidiary course in conflicts and jurisdiction."1 Over a turbulent thirty years during which American family behavior underwent dramatic changes, family law has probably been altered more than any other area of the law school curriculum. Once regarded by lawyers as quintessentially private and local, the field has seen some of its territory merge with public law, and other parts come under federal regulation. Once characterized by relatively stable norms, it has become a major battleground in contemporary culture struggles. At the same time, family law has been invigorated by a remarkable flowering of scholarship to which Harry has been a prolific, brilliant, and highly original contributor.
Indeed, the rising prestige of the field, both in and out of the academy, owes a great deal to the work for which Harry is being honored in this issue. His pioneering studies of what used to be called illegitimacy, as well as the amicus curiae briefs he authored in leading cases, were influential in bringing about the demise of laws discriminating against children born outside legal marriage. The decisions in which the United States Supreme Court applied the concept of equal protection to the situation of nonmarital children were among the first signs that family law was about to be extensively constitutionalized. Later, when the evasion of child support became a national issue, Harry's work, again, played a major role in shaping the terms of the debate, as well as the form of congressional intervention. Harry was also quick to see the implications for family law of many technological and scientific advances.
Of all the features that life Harry's work out of the ordinary, four deserve to be specifically recognized and honored on this occasion. First, as his lifelong advocacy on behalf of children testifies, he has been a champion of the most vulnerable and least advantaged members of our society. Second, as his nuanced writings on child support demonstrate, commitment to a particular reform has not blinded him to its possible abuses, excesses, or unintended side effects. Third, his deft use of comparative law, especially in his family law casebooks, has been a model for law teachers in all fields, demonstrating how the experiences of other countries can assist us in understanding problems within our own country. Finally, Harry seems to possess complete immunity to the temptations of intellectual fads and fancies. In and out of season, he has bent his efforts towards gaining knowledge rather than popularity. Though he often writes as an advocate, he does so candidly, thereby avoiding the genre in which partisanship masquerades as scholarship. This is admirable self-discipline from one who has written so extensively about so many "cutting edge" issues.
His devotion to the cause of knowledge for its own sake helps to explain why Harry's early work holds up so well while more recent efforts by many other scholars already look dated. Harry is a rare combination--a scholar's scholar and an academic who strives to be useful to the legal profession, to the persons affected by family law, and to the polity. When one contemplates his lengthy bibliography and considers the long hours he has devoted to public service, one can only stand in awe of his energy and achievements. Few of his contemporaries can match his record of influential writings plus his participation in law reform activities, including those of the American Law Institute and the National Conference of Commissioners on Uniform State Laws. He has given freely of his time and advice to state, federal, and foreign governments.
Like Max Rheinstein, Harry Krause combines many of the strengths of the civil law scholar with those of the common law lawyer. The Romano-Germanic legal systems have traditionally treated family law as an essential link between law and culture, one of the noblest and most demanding fields of civil law. And that is how Harry has consistently approached his main subject--with a sense of high calling and a razor-sharp intellect. At the same time, he has brought to family law the common sense and reforming zeal that are more characteristic of the American legal profession. Added to that dual inheritance and shining through in everything he does are Harry's own inimitable qualities--an inquiring mind, a generous spirit, and a kind heart. May he continue to enrich the practice and study of American law with his unique gifts for many years to come!
* Learned Hand Professor of Law, Harvard University.
This article is reprinted by permission of The Journal of Contemporary Health Law and Policy, a publication of The Catholic University School of Law, which published it as "Harry D. Krause: Scholar for All Seasons," in Volume 12, Issue #2, pages xi-xii (1996).
A Tribute to Harry D. Krause: Mentor
Michael H. Hoeflich | 1997 U. Ill. L. Rev.
A law school achieves greatness not because of its building or its technology but because of the people who form its community. When I arrived at the University of Illinois in January of 1981, my first emotion was that of intimidation. As I looked at the faculty directory, I thought that I was reading from the list of casebooks and hornbooks I had used just a few years earlier as a law student: LaFave, Landers, Maggs, Rotunda, Nowak, Benfield, and, of course, Krause. My sense of fear and intimidation was not ameliorated when I discovered that these august figures made it a habit to arrive at the law school around 5:30 a.m. for coffee and discussion so that they could be at their desks at work by 7:00. Yet I rapidly discovered that there could be no better place for a young would-be academic than Illinois in those days, for though they rose in the morning at what seemed an ungodly hour and they all seemed to have an infinite capacity for hard work and painstaking scholarship, the fact was that these were truly wonderful colleagues and people. I look back on my early days at Illinois with both nostalgia and gratitude, for my colleagues of those days taught me how to be a law teacher and law scholar. One of the most important to me personally was Harry Krause.
When I think about Harry, I am immediately drawn to several scenes. The first is Harry in the faculty lounge upstairs in the early morning. There was a regular crew up there: Wayne LaFave, Ron Rotunda, and Harry. What was astonishing to me in those morning sessions was not only that these folks were awake, but that they actually carried on high-level discussions about the law. I will never forget one morning at about 6:30 a.m. when I walked into the lounge, and there was Harry discussing in great detail the legal ramifcations of an Australian case involving frozen semen and postmortem impregnation. At a time when lesser mortals can barely ask for the Cheerios, Harry was already into the higher reaches of jurisprudence and cryotechnology.
A second image of Harry that stays with me is of him in his office, surrounded by books and papers, working furiously to finish a new book or article. I cannot remember a time when Harry was not working on at least three scholarly projects, usually in family law and comparative law. And I cannot remember a project he did not finish. I can say now, with nine years of law school deaning under my belt, that the level of scholarly productivity maintained by Harry Krause during his career is unbelievable and enviable. Of course, on the Illinois faculty in those days, nobody seemed to realize how remarkably productive the senior members were.
I do not want, however, to paint a false picture of Harry Krause. And it would be false if I spoke only of his scholarship, as superb as that was. For Harry is truly a man of parts. How many law professors can claim to have ridden motorcycles, built steel sculptures for their gardens, sailed on numerous lakes and rivers, and finally, managed to get their charter captain’s license from the Coast Guard?
And Harry and Eva were the best of folks. I can remember many nights sitting at their dining room table having a splendid meal, always accompanied by good wines and conversation. Harry played host to junior and senior faculty alike, as well as to the many foreign visitors who came to Champaign-Urbana to the law school. I particularly remember those dinners when the weather was fair and Harry cooked steaks on his gas grill. Never before coming to Illinois and to the Krauses' for dinner had I understood the true beauty of corn-fed midwestern beef.
I would be remiss if I did not also record here how valuable a mentor Harry Krause was to me and countless other young faculty and graduate and foreign law students through the years. Though he was always occupied with his own scholarly work, he also always had time to counsel, to read and edit, and to discuss others' work. I always knew that I could ask him to read and correct a new draft of something I was working on. He never refused; indeed, he always made me feel welcome to come and see him and to seek his aid and advice.
There is always a tendency to think of our youth as a "golden age" and to allow nostalgia to cloud our backward vision. But I think it is truly fair to say that there was a golden age at the U. of I. when Krause, LaFave, Cribbet, Benfield, Rotunda, Morgan, Nowak, Maggs, Landers, et al. were on the faculty. It was a moment in the life of a great school. There were other such moments before, and there will be more to come. But it was a moment that I was permitted to share and thus is particularly important to me. And it was a moment made possible in part by the involvement of Harry Krause. He was and is a superb scholar and a marvelous colleague and friend. He enriched the law school for decades with his kindness, his incisive intelligence, and his rigorous scholarship. It is a great pleasure to be able to pay him tribute in this issue of the Law Review.
* Dean, University of Kansas School of Law. B.A. & M.A. 1973, Haverford College; M.A. 1976, Clare College, Cambridge; J.D. 1979, Yale.
Child Support Reassessed: Federalization of Enforcement Nears Completion
Linda D. Elrod | 1997 U. Ill. L. Rev.
Of the many areas of recent interest in family law, few have attracted so much attention as efforts to reform the law of child support. In this essay, Professor Elrod considers the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which represents the most recent effort by Congress to federalize the enforcement of child support. Professor Elrod begins by outlining some of the pre-1996 efforts to enforce child support obligations. These efforts were federalized with the passage of the Family Support Act of 1988, which created the U.S. Commission on Interstate Child Support to propose ways to improve the interstate establishment and enforcement of child support awards. After studying the issue, the Commission made 120 specific recommendations to Congress for reforming state child support systems and for establishing and enforcing interstate awards. Professor Elrod then discusses some of the major legislative initiatives that resulted from the Commission's recommendations, including the Uniform Interstate Family Support Act, the Child Support Recovery Act of 1992, the Omnibus Budget Reconciliation Act of 1993, and the Full Faith and Credit for Child Support Orders Act of 1994. Professor Elrod then turns to the PRWORA, which is the final piece of legislation included in the Commission's recommendations. She explains how the PRWORA will increase federal enforcement of child support by, among other things, creating registries for support orders and by streamlining procedures for the establishment of paternity. Professor Elrod concludes by offering some comments on these new developments, which have privatized and centralized the support of children. She offers a number of questions for policy makers to ponder, including the possibility of a return to more public responsibility for children.
* Distinguished Professor of Law, Washburn University School of Law; editor of the ABA Family Law Quarterly, for the Family Law Section of the American Bar Association. B.A. 1969; J.D. 1971, Washburn University. I would like to thank Harry Krause for his many scholarly contributions to the development of family law, for his beautiful use of the English language, for being a mentor to so many, and for giving me the opportunity to follow in his footsteps.
Working with a Code: Is There a Difference Between Civil-Law and Common-Law People?
Wolfgang Oehler | 1997 U. Ill. L. Rev.
In this very personal and thought-provoking essay, Professor Oehler, a former student of Professor Krause's, reflects on his teacher's scholarly work in the field of comparative law. The author suggests that the perceived difference between common-law and civil-law approaches--that one is bound by case precedent and the other wedded to an unyielding code--is, in the modern world, more apparent than real. After exploring how the two systems affect notions of law and legal order, styles of legislation, approaches to the teaching and learing of law, judicial decision making, and statutory interpretation, the author concludes that the two systems are drawing closer over time. The emergence of a unified Europe will, according to Professor Oehler, accelerate the pace. In the end, the author reminds us of the enduring contribution of Harry Krause to the fields of family law and comparative law as he offers Krause's family law case books a s a model for the melding of constitutional, statutory, and case law.
* Professor of Law, University of Bielefeld. M.C.L. 1975, University of Illinois. I am grateful to Renate Karl, LL.M. 1994, University of Illinois, for valuable help in preparation of this essay.
Marriage as Contract, Opportunistic Violence, and Other Bad Arguments for Fault Divorce
Ira Mark Ellman & Sharon Lohr | 1997 U. Ill. L. Rev.
The concept of no-fault divorce, which has gained acceptance in one form or another in all states today, recently has come under attack by scholars and legislators who blame no-fault divorce for various societal ills. One study, published by Professors Brinig and Crafton in 1994, actually links the advent of no-fault divorce to an increase in spousal violence. Professors Ellman and Lohr respond in this article to the recent barrage of no-fault criticism, with particular emphasis on their disagreement with the findings of Brinig and Crafton.
The authors begin with an overview of the various arguments made against no-fault divorce and why these arguments are unpersuasive. The authors then critique the marriage-as-contract theory on which Brinig and Crafton's study is based, refuting Brinig and Crafton's hypothesis that reintroducing fault into divorce will help improve marital conduct. The focus of the article then shifts to the empirical findings of Brinig and Crafton, which purport to show that no-fault divorce has caused an increase in domestic violence. Professors Ellman and Lohr analyze the methodology and conclusions of Brinig and Crafton's study, arguing that the analysis is flawed and the results meaningless.
Professors Ellman and Lohr conclude that although reducing the incidence of divorce and domestic violence in our society are both laudable goals, abandoning no-fault divorce is not an effective means of achieving them.
* Professor, College of Law, Arizona State University. B.A. 1967, Reed College; M.A. 1969, University of Illinois; J.D. 1973, University of California (Berkeley). Professor Ellman is Chief Reporter for the American Law Institute's project Principles of the Law of Family Dissolution: Analysis and Recommendations.
I would like to express my pleasure at being able to participate in this symposium in honor of Harry Krause. When I first began teaching and was asked by my new school to undertake family law, I asked a friend experienced in that field what book I should use. She unhesitatingly recommend Krause's Cases and Materials on Family Law, then in its first edition. I adopted it and before my first class made several calls to Harry to seek his help, which he graciously provided although he hardly knew who I was. So Harry was, quite literally, my family law mentor. But the greatest favor Harry did me was yet to come. After using his book for several years, I found I had developed some extensive supplemental materials, as well as a different way of organizing the chapters. I boldly sent the material and my syllabus to Harry, in the hope that he would like my ideas and take me on in preparation of the second edition. But always the iconoclast, Harry of course turned me down, observing, when I tried to suggest the virtues of my reorganization, that such differing views were, of course, the problem with taking on a coauthor. Harry proceeded to the preparation of his second, and later, third, editions, entirely on his own, and of course they continue to own an important slice of the field. But emboldened by the experience, I eventually went on to turn that syllabus and those materials into my own family law casebook. Thus, although Harry never become my coauthor, there is a sense in which he was the godfather of my own casebook.
** Associate Professor of Statistics, Department of Mathematics, Arizona State University. B.S. 1982, Calvin College; Ph.D. 1987, University of Wisconsin-Madison.
Both authors would like to express their appreciation to Margaret Brinig, whose cooperation in providing us with explanations of her methodology and copies of her data, was a model of professional courtesy and responsibility. Our strong disagreement with her conclusions and our doubts about the validity of her empirical claims are of course offered only with the purpose of furthering the analysis of important policy issues in divorce law, a goal which we know Professor Brinig shares and to which her work has contributed. We benefitted in this work from Ira Ellman's conversations with Frank Zimring and from William Nelson's invaluable help in providing us with the data on spousal murder presented in part II--neither of which would have occurred but for the summer hospitality repeatedly extended to Ira Ellman by Boalt Hall and by the Earl Warren Institute of which Professor Zimring is Director. The authors are also grateful for the comments received on earlier drafts provided by Scott Altman, Susan Appleton, David Kaye, and Steve Sugarman, and for the research assistance of Jenny Clevinger. Ira Ellman wishes to acknowledge the summer research support provided by the Arizona State University College of Law.
ALI Principles of Family Dissolution: Some Comments
J. Thomas Oldham | 1997 U. Ill. L. Rev.
The American Law Institute's recent promulgation of a model statute governing the principles of family dissolution has prompted renewed dialogue surrounding the economic consequences of marriage breakdown. In this article, Professor Oldham reviews some of the various proposals contained in the ALI's model statute. Professor Oldham focuses on two distinct but related sections of the ALI's proposals, one of which is aimed at addressing the problems associated with current rules for the division of property and the other which deals with spousal support. He begins this discussion by explaining the specific proposals contained in these sections of the ALI draft. He then offers a critique of these sections that is aimed at highlighting what he believes to be the strengths and weaknesses of the ALI model statute as well as some suggestions for improving it.
* John H. Freeman Professor of Law, University of Houston Law Center. B.A. 1970, Denison University; J.D. 1974, U.C.L.A. The author would like to thank Harriet Richman and Bethany Smith of the University of Houston library staff for obtaining many of the sources discussed below. The author would like to thank Marsha Garrison, Allen Parkman, and Steve Sugarman for commenting on an earlier draft of this manuscript. This article is dedicated to the memory of Pauline Drake Oldham (1920-96).
The Potential Impact of Homosexual Parenting on Children
Lynn D. Wardle | 1997 U. Ill. L. Rev.
The legalization of gay marriage has been a contentious issue since the Hawaii Supreme Court struck down a Hawaii law prohibiting such marriages. Many commentators have addressed the related, and similarly divisive, issue of same-sex parenting. In this article, Professor Lynn D. Wardle argues that the legal academic and social science communities have come to the defense of gay marriage and parenting too hastily, without considering the effects of both on children. In particular, Professor Wardle asserts that law review articles supporting homosexual parenting have relied on methodologically flawed and inadequate social science studies comparing the effects of same-sex and opposite-sex childrearing. The author suggests that these studies have ignored significant potential effects of gay childrearing on children, including increased development of homosexual orientation in children, emotional and cognitive disadvantages caused by the absence of opposite-sex parents, and economic security.
The author also examines judicial responses to homosexual parenting in adoption, custody, and visitation cases. He contends that judicial reaction has run the gamut from outright disapproval to open acceptance of gay parenting. But he notes that more recent case law reflects an approach which treats same-sex and opposite-sex childrearing as equivalent. To underscore the connection between gay marriage and parenting, Professor Wardle discusses and critiques the landmark Hawaii decision overturning a law restricting marriage to heterosexual couples. In particular, he argues that the Hawaii attorney general failed to argue forcefully that the state has a compelling interest in protecting children from the effects of gay marriage, and that the trial judge trivialized the state's expert testimony on that issue. The author concludes that same-sex marriage and parenting issues do not belong in the courts; he approvingly points to Scandinavian laws which are permissive in extending marriage benefits to gay couples, but which are restrictive in denying such couples adoption and custody privileges.
Professor Wardle's answer to the judicial morass is a rebuttable presumption in custody cases relating to proof of extramarital sexual activity. He proposes that such a presumption apply to both heterosexual and homosexual extramarital behavior, take account of the degree of actual harm caused by the extramarital affair, and run in favor of the party who was faithful to the marriage. According to the author, such a presumption, if reasonably applied, would ensure that the interests of children are accorded proper consideration in societal decisions about same-sex marriage and parenting.
* Professor of Law, J. Reuben Clark Law School, Brigham Young University. B.A. 1971, Brigham Young University; J.D. 1974, Duke University. An earlier version of this article was presented as a paper at the International Society of Family Law's North America Regional Conference on Parent and Child in North American Family Law, in Quebec City, Quebec, June 13-15, 1996. I am indebted to Eric Andersen, A. Dean Byrd, David Coolidge, Sanford Katz, Terry Kogan, Jane Marquardt, Camille Williams, Richard Williams, and others who have reacted to my paper, presentation, parts of this article, or ideas that went into writing it, and to William Duncan, Troy Smith, Mike Connell, and Joy Pearson who provided valuable research assistance.
Family Law in a Nutshell by Harry D. Krause
J. Neville Turner | 1997 U. Ill. L. Rev.
It is both the fascination and frustration of American law that one can find authority, from one or the other of its 53 jurisdictions, to support any proposition under the sun.
This is particularly true of an area so volatile as Family Law.
Harry Krause's great quality is the ability to provide a balanced synthesis of the extraordinarily diverse approaches which have gained credence. He does more. He examines trends, he forecasts developments, and he queries conventional wisdom. Above all, his style is so trenchant and witty that he is hard to put down. Concise this book may be. Superficial it certainly is not.
Krause's treatment of Marriage Regulation (chapters 3, 4 and 5) is typically provocative. American laws of marriage are stricter than those of Australia--which, in fact, are the most liberal in the world. But Krause argues for even more state control over the conditions of entering into marriage. He debunks fashionable notions of homosexual marriages and suggestions that non-marital cohabitation should have the same consequences as marriage. He examines the policy behind consanguinity and incest, and finds current prohibitions (and non-prohibitions) wanting on both eugenic and social grounds. He examines health prerequisites for entry into marriage--which again are far more stringent than those in Australia, which are non-existent. An Australian reader must surely find it hard to justify this country's failure to test potential spouses for VD and AIDS. But should we emulate the prescriptions of some American States for testing for TB, German measles, drug addiction or Rh compatibility?
What Goethe said about language is true about law. "A person who does not know foreign languages knows nothing of his own."
The value of reading a "panoramic" book such as Krause (and I know of none of such intensive brevity) is that it forces one to query laws which we Australians have taken for granted. For instance, "openness" is now translated into the adoption laws of every Australian state. But the USA Uniform Adoption Act recommends anonymous adoption. Indeed it would permit release only of non-identifying information--that is to say, information of a genetic nature.
Drawing on the experience of the several states influenced by their Hispanic, Mexican or French pedigree, Krause convincingly argues that a regime of community property for spouses is in no way the panacea that some Australian commentators, unfamiliar with European systems, would suppose. His animadversions on the artificial creation of children (especially on surrogate motherhood) deserve careful consideration--especially as Krause is widely regarded as being the most influential American reformer of laws improving the status of children born outside of marriage.
This is a stimulating and literate work of a scholar who can be classified as neither a conservative nor a radical. He deserves, rather, what might be the highest compliment payable to a scholar--that of being a balanced commentator who examines the pros and cons of each issue without doctrinal tendentiousness.
On reflection, he deserves an even greater accolade--he is a writer of style and panache.
* Senior Lecturer in Law, Monash University, Clayton, Victoria, Australia.
This book review is reprinted by permission of Monash University Law Review, which published it in Volume 22, #1 (1996), and the author.
No Longer Following the Rule of Thumb — What to Do with Domestic Torts and Divorce Claims
Kristyn J. Krohse | 1997 U. Ill. L. Rev.
Since the abrogation of interspousal tort immunity, courts and legislatures across the nation are recognizing causes of action for a growing number of torts between spouses. Though much of the tortious conduct occurs during the marriage, due to the nature of the situation, many spouses are not able to bring claims until the marriage is over and divorce proceedings are underway. By analyzing the special problems of joining these two suits--arising out of the same set of circumstances that with very different goals--this note discusses whether joinder should be permitted, required, or prohibited.
Bankruptcy Injunctions and Complex Litigation: A Critical Reappraisal of Non-Debtor Releases in Chapter 11 Reorganizations
Ralph Brubaker | 1997 U. Ill. L. Rev.
Bankruptcy courts are increasingly faced with resolving complex litigation in the context of Chapter 11 business reorganizations. Meanwhile, the judicial practice of discharging creditor actions against non-debtors in these proceedings is growing. In this definitive and insightful article, Professor Brubaker asserts that such non-debtor releases are a wholly inappropriate use of bankruptcy courts' injunctive powers.
Professor Brubaker begins with an overview of the nature and types of bankruptcy injunctions. He then carefully explores the various bankruptcy policy rationales that have been offered to justify non-debtor releases and critiques each in turn. Next, he searches for a legitimate jurisdictional foundation for non-debtor releases and finds none. Professor Brubaker concludes that the use of non-debtor releases in bankruptcy lacks theoretical merit and is outside the scope of judicial authority without express legislative approval.
* Assistant Professor of Law, Emory University School of Law. B.S. 1985, M.B.A. 1989, J.D. 1989, University of Illinois at Urbana-Champaign. I am indebted to Cynthia Baker, Bill Buzbee, Bill Carney, Morgan Cloud, David Epstein, Marjorie Girth, Bill Mayton, Chris Meyer, Jeff Pennell, Robert Schapiro, and the late Barry Zaretsky for helpful comments on earlier drafts of this article. I am grateful for summer research support provided by Emory Law School and the research assistance of Jai Agrawal, Melissa Glasband, and Mark Hebbeln. Special thanks go to Charles Tabb for support and encouragement, numerous constructive conversations, and inspiration for a title. See Charles J. Tabb, A Critical Reappraisal of Cross-Collateralization in Bankruptcy, 60 S. Cal. L. Rev. 109 (1986).
Illinois Life: An Environmental Testament
Eric T. Freyfogle | 1997 U. Ill. L. Rev.
This essay was prepared at the request of the Illinois Environmental Council (IEC), an organization that serves as the central voice in the Illinois state capital for state-based environmental groups. Now a quarter-century old, the IEC advocates for informed and forward-looking decision making by government. It calls for public policies that give due weight to the land community, as well as for greater involvement by citizens in matters affecting their natural environment. One of the educational aims of the IEC is to help Illinois citizens better understand what environmentalism is all about. This essay, a part of that educational effort, surveys for diverse audiences more or less the whole field of environmental thought in the United States, with a particular focus on issues facing Midwestern farm states like Illinois. The assignment was an ambitious one, overly so really, given the breadth, diversity, and dynamism that characterizes the environmental movement. Inevitably, the synthesis reflects the personal interpretations of the author, Professor Eric T. Freyfogle.
* Max L. Rowe Professor of Law, University of Illinois, and Chair of the Policy and Legislation Committee of the Illinois Environmental Council (IEC)
Although prepared on behalf of and for use by IEC, this essay represents the personal synthesis of the author; it is not an official IEC policy statement. Members of the IEC Board contributed valuable ideas and comments that improved this essay. Comments were also offered by Donna Becker, Clark Bullard, John Gilpin, Bruce Hannon, and Greg McIsaac. Without their help this essay would have been less accurate and otherwise weaker, and I thank them for their help. None of them is responsible for what is written here, and--indicative of the variation in environmental thought--probably none would agree with everything said.
"Choice Auto Insurance": Do Theories of Justice Require Linkage Between Injuries and the Injured?
Jeffrey O'Connell & Christopher J. Robinette | 1997 U. Ill. L. Rev.
Two Hats, One Head: Reconciling Disability Benefits and the American with Disabilities Act of 1990
Jorge M. Leon | 1997 U. Ill. L. Rev.
In 1990, Congress passed the Americans with Disabilities Act to help disabled individuals gain the same employment opportunities as people without disabilities. Thirty-four years previously, the SSDI program was created to provide financial assistance to disabled individuals when disability made the possibility of employment unlikely. With the availability of the ADA and the SSDI program, a disabled individual who makes an employment claim under the ADA also may have made or be making claims for SSDI benefits or private disability insurance. The author of this note argues that when a disabled individual claims total disability in order to receive benefits, she should be judicially estopped or prevented as a matter of law from pursuing an employment claim under the ADA. The author examines the definitions of “disability” under the ADA and the SSDI program to show the contradiction in making assertions under both. He then evaluates how various courts have handled the interplay of the ADA and disability benefits in employment cases. By analyzing the policies and purposes behind the ADA and SSDI, the author demonstrates the logical inconsistency of allowing a claimant to receive benefits while making employment discrimination claims. Finally, the author raises concerns about the ability of the SSDI program to absorb claimants who might first be able to seek the financial benefit and employment protection of the ADA.
"1-800-rippoffs.com": Internet Domain Names Are the Telephone Numbers of Cyberspace
J. Theodore Smith | 1997 U. Ill. L. Rev.
Since the Internet's inception, registration of domain names has been on a first-come, first-served basis. Because of first-come, first-served registration, many companies expanding onto the Internet discover that the most desirable domain names, for example, names utilizing the company's trademark, have been registered by unrelated third parties. These companies further discover that the trademark actions of infringement and dilution may not be viable in the Internet domain name context. It has become popular to assert that domain names incorporating trademarked words carry inherent trademark protection. This note analogizes domain names to mnemonic 800 telephone numbers. It argues that the trademark law established for mnemonic telephone numbers should be applied to domain names.
Governing Physcician-Associated Risk Disclosure by Adopting the ADA "Direct Threat" Approach: Doctors, Pack Up Your Stethoscopes and Get Out Your Checkbooks
Rebecca Walker | 1997 U. Ill. L. Rev.
As today's patients become more savvy health care consumers, less willing to place their health in the hands of a stranger without research and investigation, physicians may find themselves on the hot seat. The pressing question, what and how much background and personal information must a physician provide, presents no easy answers. Although disclosure facilitates informed consumer decisions allowing prospective patients to evaluate the risks associated with prospective physicians, a governing mechanism is clearly necessary to provide parameters.
This note evaluates the proposal that the "serious threat" four-factor test from ADA cases could be utilized to determine which physician-associated risk factors should be disclosed. The author predicts that applying the ADA four-factor test to these risks factors would follow the same unhelpful trend as recent ADA cases applying the test in cases involving doctors and hospitals; any risk equals a significant risk. Predisposed to err on the cautious side, this analysis would deem all factors a significant risk warranting disclosure.