Volume 1999Masthead PDF
Castles and Carjackers: Proportionality and the Use of Deadly Force in Defense of Dwellings and Vehicles
Stuart P. Green | 1999 U. Ill. L. Rev.
This article, prompted by the recent proliferation of "Shoot the Burglar," "Make My Day," and "Shoot the Carjacker" laws, offers a detailed analysis of the defense of premises doctrine--under which a defender is privileged to use deadly force against an intruder even when the defender has not been threatened with death or serious bodily injury. Professor Stuart Green asks whether and how the use of deadly force in defense of premises can be reconciled with the traditional requirement in self-defense law that the defender's response be "proportional" to the threat posed. Five possible arguments are considered. First, a deadly threat should be presumed whenever an intruder unlawfully attempts to enter a defender's dwelling. Second, defenders are more vulnerable in the home than elsewhere. Third, defenders have a specially privileged property interest in the home. Fourth, an intrusion into a defender's premises involves a threat to privacy, dignity, and honor analogous to the threat present in crimes such as rape and kidnapping. Fifth, the use of deadly force in defense of premises is justified as a means of deterring unjustified aggression and punishing criminal behavior. Professor Green argues that none of these principles, standing by itself, is sufficient to sustain the defense of premises doctrine--premised as they are on unsupported empirical assumptions about the danger posed by intrusions into the home, an improper conflation of the rules of proportionality and necessity, troubling comparisons between the value of human life and the value of property, and other errors. Professor Green concludes, however, that the requirement of proportionality might nevertheless be satisfied by an aggregation of such interests.
* Assistant Professor of Law, Louisiana State University. B.A. 1983, Tufts University; J.D. 1988, Yale Law School. My thanks to Paul Baier, Paul Robinson, and Lloyd Weinreb for their comments on an earlier draft of this article. Thanks also to my colleagues at LSU who participated in a round-table presentation of some of the issues dealt with here, and to Layna Cook and Sean Donlan for their research assistance.
Better Settle Than Sorry: The Regret Aversion Theory of Litigation Behavior
Chris Guthrie | 1999 U. Ill. L. Rev.
Legal scholars have developed two dominant theories of litigation behavior: the Economic Theory of Suit and Settlement, which is based on expected utility theory, and the Framing Theory of Litigation, which is based on prospect theory. While Professor Guthrie acknowledges the explanatory power of these theories, he argues that they are flawed because they portray litigants as solely calculating creatures. These theories disregard any role emotion might play in litigation decision making.
Guthrie proposes a theory complementary to those above--the Regret Aversion Theory. The proposed Regret Aversion Theory views litigants as both calculating and emotional creatures. With roots in economics, cognitive psychology, and social psychology, the Regret Aversion Theory predicts that individuals will seek to make decisions that minimize the likelihood that they will experience postdecision regret. Because regret is most likely to arise when individuals discover that they would have obtained better outcomes if they had decided differently, the Regret Aversion Theory predicts that people will make decisions that shield them from this knowledge.
Using an experimental survey methodology, Guthrie tests this theory in the litigation context and finds that litigants, when choosing between settlement and trial, systematically prefer settlement because it minimizes the likelihood that they will experience regret. Settling reduces regret by allowing litigants to avoid discovering that trial might have been the better decision; trial offers no such protection. Guthrie concludes by examining the implications of Regret Aversion Theory for lawyers and for the legal system as a whole.
* Associate Professor of Law and Senior Fellow at the Center for the Study of Dispute Resolution, University of Missouri School of Law. B.A. 1989, Stanford; Ed.M. 1991, Harvard; J.D. 1994, Stanford. For their advice and comments on earlier drafts of this article, I am grateful to Tracey George, Brad Joondeph, Russell Korobkin, Don Langevoort, Bob Mnookin, Jeff Rachlinski, Len Riskin, Josh Stulberg, Cass Sunstein, Tom Ulen, and participants in a faculty colloquium at the University of Missouri School of Law. I am also grateful to Erik Edwards for his capable research assistance, Diane Collins for her diligent interlibrary loan assistance, and the University of Missouri Law School Foundation for financial support.
Time and Money: Discovery Leads to Hourly Billing
George B. Shepard & Morgan Cloud | 1999 U. Ill. L. Rev.
It is ironic that many clients and lawyers today condemn hourly billing. Starting in the 1950s, both groups demanded a switch from fixed-fee billing to hourly billing. This article explains why these groups made the switch and also suggests why now some are considering a switch back.
Using an economic model they have developed, Professors Cloud and Shepherd show how societal changes, particularly the expansion of pretrial discovery in the 1938 Federal Rules of Civil Procedure, led inevitably to the switch to hourly billing. Cloud and Shepherd's economic model explains two critical factors affecting the type of contract the client and lawyer will choose: moral hazard and cost uncertainty. Moral hazard is the incentive attorneys have to waste time. Cost uncertainty is the risk involved when a lawyer's costs are unpredictable. The model predicts that if litigation costs are relatively certain, then the efficient contract is a fixed-fee contract. Although such a contract imposes a cost risk on attorneys, the contract reduces moral hazard. If instead cost uncertainty increases greatly, as it did after the 1938 changes in the Federal Rules, and lawyers are more risk averse than their clients, then a switch to hourly billing becomes efficient. Hourly billing will reduce cost risk for the attorney, but will increase her moral hazard. However, if cost uncertainty is large enough, then the savings from risk reapportionment, which the lawyer and the client can share, will more than offset the cost of the waste from moral hazard. Under these conditions, hourly billing both efficiently shifts new risks away from lawyers and makes legal services cheaper for clients than under fixed fee billing.
History confirms these economic predictions. Before 1938, the standard fee arrangement was a fixed fee. Broadened discovery then increased the uncertainty of litigation costs, especially as states adopted the Federal Rules over the next two decades. Starting in the mid-1950s, as Cloud and Shepherd's model predicts, litigators, spurred by their institutional clients, switched to hourly billing. By the late 1960s, society's greater complexity had increased cost uncertainty for transactional lawyers. As the model predicts, the bar soon also shifted to hourly billing for transactional work. Today, fixed fees can be found mainly in cases involving very risk-averse clients. For example, many personal injury cases continue to be litigated under contingency agreements, a form of fixed fee. This is in part because, as the model shows, these clients have fewer resources and thus cannot bear cost uncertainty as easily as other clients.
Cloud and Shepherd also use their model to explain why firms and clients have now begun experimenting with forms of fixed-fee billing. Cloud and Shepherd suggest that the conditions that once made hourly billing efficient may now have changed. Because of these changes, Cloud and Shepherd predict that economic pressures are building for a return to forms of fixed-fee billing.
* Associate Professor of Law, Emory University; B.A. 1982, Yale University; J.D. 1986, Harvard Law School; and completing Ph.D. in economics, expected 1998, Stanford University.
** Professor of Law, Emory University, B.A. 1969, Grinnell College; M.A. 1972, The University of Iowa; J.D. 1977, Cornell Law School.
Congress, Science, and Environmental Policy
Wendy E. Wagner | 1999 U. Ill. L. Rev.
Attempts to legislate solutions to environmental problems have been unsatisfactory in a number of important ways. Most commentators have attributed the environmental laws' poor track record to failures of agencies and the judiciary that frustrate the administration of the laws. In this article, however, Professor Wendy Wagner shifts the focus to those who write the laws establishing environmental policy, the members of Congress. As Professor Wagner explains, the development of effective environmental legislation poses unique scientific challenges to Congress. Rather than failing to appreciate the importance of scientific data to solving environmental problems, however, Congress has put too much emphasis on scientific data--operating under the mistaken belief that science, alone, can provide the solutions to environmental puzzles.
Professor Wagner begins by defining the limited usefulness of scientific findings to the development of effective environmental legislation and by explaining the reasons such limits exist. She then explains the reasons Congress has, to this point, failed to recognize these limits. The author examines the three prevailing models of congressional decisionmaking and explains that under each theory Congress has political reasons to overrely on science.
Professor Wagner explains that Congress's continued dependence on science imposes a variety of costs on society and acts as a significant hindrance to effective environmental legislation. To avoid these problems in the future, she offers two suggestions for reform. The first reform proposal is designed to attack the problem from within Congress by educating legislators as to the existence of scientific uncertainties and the problems created by these knowledge gaps. The second reform, to be pursued concurrently with the first, attempts to lessen the courts' insistence, in review of agency rulemakings, on scientific evidence, especially when such evidence is not available.
* Associate Professor, Case Western Reserve University School of Law. B.A. 1982, Hanover College; M.E.S. 1984, Yale School of Forestry and Environmental Studies; J.D. 1987, Yale Law School.
Putting Reason Back into the Reasonable Efforts Requirement in Child Abuse and Neglect Cases
Cristine H. Kim | 1999 U. Ill. L. Rev.
In 1980, Congress passed the Adoption Assistance and Child Welfare Act (AACWA) to prevent the unnecessary placement of children in foster care. AACWA requires states to make reasonable efforts to prevent the removal of children from their homes and, after removal, make reasonable efforts to reunify the family. Reasonable efforts, however, was left undefined by Congress and, thus, gave no clear guidance to states regarding the quantity or length of efforts to be made before moving abused and neglected children to permanent placements. As a result, AACWA actually increased the number of children in foster care. To clarify the reasonable efforts standard, Congress passed the Adoption and Safe Families Act of 1997 (ASFA).
This note evaluates the likely impact ASFA will have on the application of the reasonable efforts standard. The author begins with an overview of AACWA, including an explanation of the reasonable efforts provision. This is followed by an examination of the treatment of reasonable efforts under federal and state law. Next, the author considers the changes made by ASFA and analyzes their effect on child welfare laws. The author concludes that ASFA will improve the clarity of the reasonable efforts standard.
18 U.S.C. § 924(c): Liability for Both Parties to a Guns-for-Drugs Trade, a Criticism of United States v. Westmoreland
John K. Mehochko | 1999 U. Ill. L. Rev.
Since Congress enacted 18 U.S.C. § 924(c) to criminalize using or carrying a firearm during and in relation to any crime of violence or drug trafficking offense, the courts, including the Supreme Court, have struggled with the definition of "use" under the statute. Even after the Supreme Court addressed the definition of "use" in relation to 18 U.S.C. § 924(c) on two occasions, the courts still are divided regarding whether a gun traded for drugs constitutes "use" of a firearm under the statute for parties on both sides of the transaction.
By reviewing the Supreme Court's opinions, the federal courts' analyses, and public policy considerations, this note evaluates whether 18 U.S.C. § 924(c) assesses criminal liability for "use" of a firearm to both sides of a guns-for-drugs transaction or only to the party offering the gun for barter. The author concludes that to remain consistent with the spirit and language of the statute and to support compelling public policy rationales, the courts should define "use" under 18 U.S.C. § 924(c) broadly and assess liability to parties on both sides of a guns-for-drugs transaction. For prosecutors residing in jurisdictions that utilize a narrow definition of "use" of a firearm, the author provides alternative prosecutorial techniques to circumvent a narrow interpretation of "use" and find the parties criminally liable under 18 U.S.C. § 924(c) for "use" of a firearm on both sides of a guns-for-drugs transaction.
Why Liberals Should Chuck the Exclusionary Rule
Christopher Slobogin | 1999 U. Ill. L. Rev.
In this article, Professor Christopher Slobogin makes a compelling new case against the exclusionary rule from a "liberal" perspective. Moving beyond the inconclusive empirical data on the efficacy of the rule, he uses behavioral and motivational theory to demonstrate why the rule is structurally unable to deter individual police officers from performing most unconstitutional searches and seizures. He also argues, contrary to liberal dogma, that the rule is poor at promoting Fourth Amendment values at the systemic, departmental level. Finally, Professor Slobogin contends that the rule stultifies liberal interpretation of the Fourth Amendment, in large part because of judicial heuristics that grow out of constant exposure to litigants with dirty hands. He also explains why noninstrumental justifications for the rule, even when viewed from a liberal bias, fail to support a broad policy of exclusion.
In place of the exclusionary rule, Professor Slobogin proposes an administrative damages regime in which actions for Fourth Amendment violations would be brought directly against police officers and departments. The proposed regime includes: (1) liquidated damages for all constitutional violations, (2) personal liability for officers who knowingly or recklessly violate the Fourth Amendment, (3) departmental liability for all other violations, (4) state-paid legal assistance for all Fourth Amendment claims, and (5) a judicial decisionmaker. Professor Slobogin demonstrates how this regime would be superior to the exclusionary rule not only in deterring individual Fourth Amendment violations, but also in encouraging use of warrants, invigorating judicial review, diminishing racism on the beat, curbing perjury, improving hiring and training practices, and promoting respect for the system. Why Liberals Should Chuck the Exclusionary Rule adds considerable insight to the Fourth Amendment debate and promises to challenge the way both liberals and conservatives think about the exclusionary rule.
* Stephen C. O'Connell Professor of Law, University of Florida School of Law. A.B., Princeton University; J.D., LL.M., University of Virginia Law School. I would like to thank David Baddley, Jerold Israel, John Jeffries, Rick Matasar, Lars Noah, William Stuntz, and the participants in the University of Florida Levin College of Law faculty workshop series for their help on this article.
Norms, Learning, and Law: Exploring the Influences on Workers' Legal Knowledge
Pauline T. Kim | 1999 U. Ill. L. Rev.
An initial survey of workers in Missouri documented widespread misunderstanding of the default rule of employment at will. This article presents additional data, collected in New York and California, confirming previous findings that workers consistently overestimate their legal rights. Contrary to the assumption commonly made by defenders of the at-will rule, these data indicate that workers do not understand the default presumption, but erroneously believe that the law affords them protection akin to a just cause contract, when, in fact, they can be dismissed at will. The patterns of responses in each of the three states are remarkably similar, despite wide variations in the states' laws. Although the three states differ significantly in their recognized exceptions to the at-will presumption, the state-by-state variations in responses to the survey questions do not appear to correlate with these variations in the law. Multivariate regression analyses further suggest that experiential factors such as past union representation, responsibility for hiring and firing of other employees, the experience of being fired, and length of work force experience do not significantly affect the accuracy of workers' perceptions of their legal protections. Contrary to the predictions of a rational actor model, these findings suggest that workers' erroneous beliefs about the law are not influenced by variations in state law and are resistant to change through experience. This article advances the theory that worker confusion of norms and law best explains the pattern of responses observed in this study. Drawing on theories of the internal labor market, it describes how common employer practices and policies for governing internal employment patterns might give rise to a fairness norm forbidding employee discharges without cause. The results of this study suggest that such a fairness norm strongly shapes worker expectations of their legal rights and that it overshadows the influence of most demographic and experiential factors on those expectations. Thus, it appears that workers do not readily distinguish between informal norms and enforceable legal rights, between what they believe the law should be and what it actually is.
* Associate Professor, Washington University School of Law, St. Louis; A.B., Harvard University; J.D., Harvard Law School. This study was supported by a grant from the Fund for Labor Relations Studies. Jason Mazer, Jeffrey Chod, Jai Khanna, Paul Gennari, and Nelson Mar provided invaluable research assistance. I am indebted to Lauretta Conklin for her assistance with the statistical analysis and to Jane Aiken, Stuart Banner, Robert Ellickson, Kathy Goldwasser, Kent Greenfield, Brad Joondeph, Dan Keating, Ron Levin, and Bob Thompson for their helpful comments. An earlier version of this paper was presented at the 1998 American Law and Economics Association Annual Meeting's panel on Labor, Discrimination and Family Law.
Shareholder Oppression v. Employment at Will in the Close Corporation: The Investment Model Solution
Douglas K. Moll | 1999 U. Ill. L. Rev.
When the employment of a close corporation shareholder is terminated, the possibility of legal redress depends upon two seemingly inconsistent doctrines. The shareholder oppression doctrine of corporate law protects the "reasonable expectations" of a close corporation shareholder, including the expectation of continued employment. The at-will doctrine of employment law, on the other hand, provides virtually no legal protection for the loss of a job. While the shareholder oppression doctrine often grants relief to a discharged close corporation worker, the employment at will doctrine rarely allows recovery. In this article, Professor Douglas Moll explains how courts have applied these doctrines inconsistently and have failed to explain why the employer's traditional discretion to terminate employment for any reason should be constrained in a close corporation setting. Professor Moll responds to these judicial shortcomings by introducing and developing the "investment" model of oppression. Under the investment model, the fair value of the shareholder-employee's investment is legally protected. The fair value of that investment, Professor Moll argues, often includes employment in a close corporation. To the extent that a job and its benefits are part of the shareholder's investment, he concludes, they may be protected by the shareholder oppression doctrine without running afoul of the at-will rule. Professor Moll's proposed model reconciles the results of inconsistent court opinions and sheds light on the oppression doctrine. Moreover, the investment model provides a coherent framework for courts evaluating close corporation employment discharges and for shareholders seeking to make informed business decisions.
* Associate Professor of Law, University of Houston Law Center. B.S. 1991, University of Virginia; J.D. 1994, Harvard Law School. The author wishes to thank Adam Goldberg, Sandra Guerra, Ryan Maierson, Stefanie Moll, Michael Muskat, Tom Oldham, Robert Ragazzo, Irene Rosenberg, and Robert B. Thompson for their insightful comments. The author also wishes to thank Rhonda Vickers for her able research assistance.
Title VII, Mediation, and Collective Action
Michael J. Yelnosky | 1999 U. Ill. L. Rev.
Many commentators have noted that existing Title VII doctrine and its enforcement mechanisms fall short of adequately addressing the concerns of employees experiencing employment discrimination. While most of these commentators suggest legislative changes to Title VII or changes within the legislative system, in this article Professor Michael Yelnosky proposes a different approach. Yelnosky proposes a mediation-centered approach to resolving problems of workplace discrimination, and he demonstrates how that approach responds to many of the inadequacies of the Title VII status quo. Yelnosky recognizes that power imbalances between the employer and employee may have a greater effect on mediated outcomes due to the absence of safeguards available in litigation. He proposes that this power imbalance problem might be minimized by involving employee caucuses--employee groups organized around identity lines--in the mediation process. This article considers the benefits and costs related to caucus participation in workplace governance and, particularly, in mediation of discrimination claims. Finding that the benefits exceed the costs, Yelnosky suggests that changes to Title VII antiretaliation law may be necessary to facilitate the development of such groups.
* Associate Professor, Roger Williams University School of Law. Visiting Scholar, New York University School of Law, Center for Labor and Employment Law (1997-1998). B.S. 1982, University of Vermont; J.D. 1987, University of Pennsylvania. Thanks to Laurie Barron, James Boskey, Samuel Estreicher, Diana Hassel, Alan Hyde, and Jonathan Mintz for their comments on drafts of this article. Several students assisted my research: Kate Backes, David Bagus, Donna Dumas, Linda Mathewson, and Richard Morris. Many thanks to them. I am grateful to Dean John Sexton of the New York University School of Law and Professor Samuel Estreicher, Director of the Center for Labor and Employment Law at NYU, for sharing the law school's resources with me. For Barrie.
David C. Baum Memorial Lectures on Civil Liberties and Civil Rights
Hardwick and Historiography
William N. Eskridge, Jr. | 1999 U. Ill. L. Rev.
In this article, originally presented as a David C. Baum Memorial Lecture on Civil Liberties and Civil Rights at the University of Illinois College of Law, Professor William Eskridge critically examines the holding of the United States Supreme Court in Bowers v. Hardwick, where the Court held, in a 5-4 opinion, that "homosexual sodomy" between consenting adults in the home did not enjoy a constitutional protection of privacy and could be criminalized by state statute. Because the Court's opinion critically relied on an originalist interpretation of the Constitution, Professor Eskridge reconstructs the history and jurisprudence of sodomy laws in the United States until the present day. He argues that the Hardwick ruling rested upon an anachronistic treatment of sodomy regulation at the time of the Fifth (1791) or Fourteenth (1868) Amendments. Specifically, the Framers of those amendments could not have understood sodomy laws as regulating oral intercourse (Michael Hardwick's crime) or as focusing on "homosexual sodomy" (the Court's focus). Moreover, the goal of sodomy regulation before this century was to assure that sexual intimacy occur in the context of procreative marriage, an unconstitutional basis for criminal law under the Court's privacy jurisprudence. In short, Professor Eskridge suggests that the Court's analysis of sodomy laws had virtually no connection with the historical understanding of eighteenth or mid-nineteenth century regulators. Rather, the Court's analysis reflected the Justices' own preoccupation with "homosexual sodomy" and their own nervousness about the right of privacy previous Justices had found in the penumbras of the Constitution. The Supreme Court's problematic historiography deepens the normative problems other scholars have identified for Hardwick and illustrates conceptual difficulties with the "original understanding" methodology the Court sometimes deploys in constitutional cases.
* John A. Garver Professor of Jurisprudence, Yale Law School. B.A. 1973, Davidson College; M.A. 1974, Harvard; J.D. 1978, Yale. Earlier, and shorter, versions of this article were presented as the Baum Lecture at the University of Illinois College of Law and at a faculty workshop at the Georgetown University Law Center. I particularly appreciate comments I have received from Ian Ayres, Carlos Ball, Jennifer Brown, Peter Byrne, Courtney Howland, Jonathan Katz, Neal Katyal, Sarah Light, Mike Seidman, and Mark Tushnet.
This article was originally presented on November 20, 1997, as the first 1997-98 lecture of the David C. Baum Memorial Lectures on Civil Liberties and Civil Rights at the University of Illinois College of Law.
Privacy and Press Foundation: Paparazzi and Other Intruders
Robert M. O'Neil | 1999 U. Ill. L. Rev.
In recent years the modern media have become more aggressive in gathering potentially embarrassing information about private individuals. These intrusive practices have led lawmakers to propose that the press should be held accountable for the invasion of an individual's privacy interest. In this essay, originally delivered as part of the David C. Baum lecture series at the University of Illinois College of Law, Professor O'Neil argues that the embarrassment or distress of an individual does not justify limiting the media's First Amendment freedoms to obtain or disseminate truthful information. Professor O'Neil begins by exploring the ways in which the Constitution protects the privacy of individuals. He then examines how individuals have sought redress in the courts for an invasion of their privacy interests through the disclosure of confidential information or the publication of photographic images. Professor O'Neil concludes by arguing that individuals should be limited to existing claims such as stalking, harassment, and the "false light" doctrine in combating overzealous journalism. Any additional protection for privacy interests would risk undermining First Amendment freedoms that are fundamental to American society.
* Professor of Law, University of Virginia Law School and Director, The Jefferson Center for the Protection of Free Expression. A.B. 1956, A.M. 1957, L.L.B. 1961, Harvard University.
This essay was originally presented on October 1, 1998, as the Fall 1998 lecture of the David C. Baum Memorial Lectures on Civil Liberties and Civil Rights at the University of Illinois College of Law.
The Future of IOLTA: Solutions to Fifth Amendment Takings Challenges Against IOLTA Programs
James D. Anderson | 1999 U. Ill. L. Rev.
Following federal cutbacks in the early 1980s, state legislatures and state bar associations searched for alternative methods to fund legal services for low-income individuals. One creative funding concept that state legislatures and state supreme courts implemented was the Interest On Lawyers' Trust Accounts (IOLTA) program. The IOLTA funding concept permits state foundations that provide legal services for the poor to receive the interest earned from a trust account that is created by attorneys and law firms pooling nominal and short-term client funds. Because the attorney's ethical and fiduciary obligations to the client were satisfied, the IOLTA program gained widespread acceptance in the legal community. Although the program has generated a vast amount of money for indigent legal services, the Supreme Court has jeopardized the viability of the IOLTA program through its recent decision in Phillips v. Washington Legal Foundation. The Phillips Court held that clients have a valid property right in the interest proceeds earned on the funds in an IOLTA account, which may result in the courts concluding that IOLTA programs constitute an unconstitutional taking of private property under the Fifth Amendment. This note examines the legal issues concerning the IOLTA program and introduces solutions for its continued existence in light of the Phillips opinion.
Collective Bargaining Agreements and the Americans with Disabilities Act: A Problematic Limitation on "Reasonable Accommodation" for the Union Employee
Brian P. Kavanaugh | 1999 U. Ill. L. Rev.
Title I of the Americans with Disabilities Act (ADA) prohibits employers from discriminating against disabled workers in their employment practices. The ADA requires employers to "reasonably accommodate" their disabled employees. One type of reasonable accommodation consists of reassignment of the disabled employee to a different vacant position. However, in a unionized workplace, reassignment of the disabled employee could violate the seniority provisions of a collective bargaining agreement between the union and the employer. A majority of courts considering the conflict between the ADA and collective bargaining agreements have established a per se rule that an employer does not have to reassign disabled workers in violation of a collective bargaining agreement. This note argues that the per se rule adopted by a majority of courts undermines the purpose, background, and legislative history of the ADA. The per se rule ensures that more disabled people will remain unemployed, due to the significant number of employees who work under collective bargaining agreements. This note recommends that Congress clearly establish that collective bargaining agreements are not in and of themselves determinative in the reasonable accommodation process.
Financial Products and Sources Basis Taxation: U.S. International Tax Policy at the Crossroads
Jeffrey M. Colón | 1999 U. Ill. L. Rev.
The increasing use of derivatives to manage financial risks raises significant challenges for legislators and tax administrators in forging a coherent U.S. tax regime. Through the creative use of derivatives, taxpayers can transform a highly taxed return into an economically equivalent but lower taxed return. In the cross-border setting, the adroit use of derivatives by foreign investors can transform, for example, a U.S. source dividend taxed at thirty percent into an equivalent swap return taxed at zero percent. Although there are valid arguments to tax synthetic returns similarly as the returns to which they relate, Professor Colón argues that the United States should eschew such an approach with respect to cross-border users of financial products. Given the current exemption for foreign investors for capital gains and interest, any attempt to tax synthetic returns would require rules that would be frightfully complex, may violate tax treaty obligations, and could actually cost the United States tax revenue if other countries followed suit. Instead, Professor Colón suggests that the growth in derivatives may present an opportune time for tax administrators to re-evaluate U.S. international tax policy and consider, at least in the treaty context, the exemption from source basis taxation of all investment returns earned by foreign investors.
* Associate Professor of Law, Fordham University School of Law. B.A. 1983; J.D. 1987, Yale; M.L.T. 1993, Georgetown. I wish to thank Jill Fisch, Alphonse Fletcher, Jr., Alan Levine, Linda Sugin, Steve Thel, and Howard Weiner for their thoughtful comments. I also thank the Fordham University School of Law for its generous support.
Redesigning Successor Liability
Richard L. Cupp Jr. | 1999 U. Ill. L. Rev.
In his article, Professor Cupp takes a critical look at the current state of successor liability in products liability law. For many years, traditional corporate law principles dictated whether a successor corporation would be held responsible for the torts caused by products produced by its predecessor. These principles disallowed successor liability in many cases, even when the successor engaged in the same line of business or sold the same product line as its predecessor. The Restatement (Third) of Torts: Products Liability suggests that this continues to be the trend. Professor Cupp, however, through careful analysis of current case law, demonstrates that although many courts continue to follow the traditional approach, an increasing number of states have followed one of two less restrictive approaches, each resulting in more successor responsibility. Professor Cupp advocates adoption of these less restrictive approaches. The most persuasive rationale for adopting these alternative approaches is that they more effectively channel responsibility for products liability back to the predecessor corporation than does the traditional approach. They do so by forcing successor corporations to consider the projected cost of the predecessor's products liability at the time the successor purchases the predecessor. After analyzing the "channeling back" justification for the alternative approaches, Professor Cupp favorably analogizes courts' application of one of the less restrictive approaches in CERCLA cases to products liability, as well as making fairness and efficiency arguments. Cupp further argues that the courts present a more realistic, appropriate, and logical avenue for the change than do state legislatures. Finally, Professor Cupp considers, in cases where the traditional approach is not abandoned, how the fraud exception to the traditional rule might often be used to achieve the same goals of the two alternative approaches.
* Professor of Law, Pepperdine University School of Law. B.A. 1983, Pepperdine University; J.D. 1987, University of California, Davis. The author is indebted to Professors Michael Green and James Henderson for insights generously provided in discussions and in their writings about successor liability issues; to Professors Anthony McDermott, Daniel Martin, Shelley Saxer, and Mark Scarberry for helpful comments at the author's presentation of his thesis at a Pepperdine University School of Law Scholars' Workshop; and to Patricia Cirucci and Brent Caslin for their outstanding research assistance. In June of 1998 the author presented a short speech addressing the recently adopted Restatement (Third) of Torts: Products Liability's section on successor liability at a conference for judges sponsored by the Law & Organizational Economics Center. His brief comments, along with those of speakers addressing other controversial aspects of the Restatement (Third), were published at 8 KAN. J.L. & PUB. POL'Y 113 (1998).
Dis-Qualified Immunity for Discrimination Against the Disabled
Gary S. Gildin | 1999 U. Ill. L. Rev.
In his article Professor Gildin challenges the applicability of the qualified immunity defense in actions brought under the federal disability statutes. Specifically, he contends that the qualified immunity defense should not be available in actions for damages brought under the Rehabilitation Act, the Americans with Disabilities Act, and the Individuals with Disabilities Education Act. Although these acts are very powerful tools to protect the rights of disabled individuals, lower courts have slowly eviscerated a key enforcement mechanism--the remedy of money damages--by transferring the qualified immunity defense permitted in § 1983 actions to actions brought under these acts. In support of his thesis, Professor Gildin analyzes the text and legislative histories of these acts and argues that neither of these supports the existence of the qualified immunity defense. He also finds that there is no historical linkage between § 1983 and the disability statutes that justifies borrowing qualified immunity from § 1983. Finally Professor Gildin argues that judges should not legislate this defense as Congress at the time it enacted the disability statutes did not intend for this defense to be available.
* Professor of Law, The Dickinson School of Law of the Pennsylvania State University. B.A. 1973, University of Wisconsin; J.D. 1976, Stanford Law School. The author expresses his gratitude to Megan Farrell Lawless, Hannah Greenwald, and Shawn E. Smith for their invaluable research assistance.
Of Hungry Wolves and Horizontal Conflicts: Rethinking the Justifications for Bank Holding Company Liability
Eric J. Gouvin | 1999 U. Ill. L. Rev.
To what extent should bank holding companies bear the costs of bank failure? Current banking law provides a number of ways to impose liability on bank holding companies for bank failure. Those devices, however, have developed haphazardly and sometimes rest on inconsistent theoretical foundations. Professor Gouvin critiques the regulatory justifications that have been offered for holding company liability and offers an alternative justification for imposing liability on holding companies based on the idea that directors of bank subsidiaries suffer from an especially difficult form of horizontal conflict--the situation where the board of directors owe several different duties and choose to serve shareholder interests to the exclusion of all others, including their duty to the bank as an entity. He resolves the horizontal conflict through the application of agency-like principles. The quasi-agency approach would treat subsidiary directors as quasi agents of the parent company and impose responsibility directly on the holding company for any duties that bank managers owe to parties other than the bank holding company (including the duty to act in the best interest of the bank as an entity). Under the quasi-agency approach, the holding company should be liable only to the extent that the directors of its properly capitalized bank failed to discharge duties to nonparent constituents (including any duty to the bank itself as a separate legal entity). The extent of the liability so incurred should be limited to the harm caused by the failure to discharge the duty.
* Professor of Law, Western New England College School of Law. A.B. Cornell University; J.D., L.L.M. Boston University; M.P.A. Harvard University. The author thanks Phillip Blumberg, Deborah DeMott, Donald Korobkin, Geoffrey Miller, Eric Orts, and the participants of the Western New England College School of Law faculty forum for their valuable comments on an earlier draft of this article; of course, all mistakes, misconceptions, and omissions are solely the responsibility of the author. The author also thanks Dean Donald Dunn of the Western New England College School of Law for supporting this project with a research grant.
Defining the Scope of the Privilege Against Self-Incrimination: Should Prearrest Silence Be Admissible as Substantive Evidence of Guilt?
Maria Noelle Berger | 1999 U. Ill. L. Rev.
When a suspect responds to prearrest questioning by government agents with silence, it is unclear whether that silence can later be used against him in court to prove his guilt. Currently, the Fifth and Eleventh Circuits allow prearrest silence to be admitted as substantive evidence of guilt, while the First, Seventh, and Tenth Circuits do not. In this note, the author uses a two-step analysis to interpret the Fifth Amendment privilege against self-incrimination in the prearrest context. First, does prearrest silence come within the scope of the Fifth Amendment privilege? The author examines the history of the Fifth Amendment and finds that under either the traditional view or the newer approaches, prearrest silence is protected. Second, do the goals of the criminal justice system favor admitting or excluding this protected silence? The author concludes that prearrest silence should be excluded because this furthers both the truth-discovery function and independent social goals of the rules of criminal procedure. Thus, the author resolves the question by calling for the exclusion of prearrest silence as substantive evidence of guilt, limited to instances of accusatory questioning.
Do Not Bet on Unilateral Prohibition of Internet Gambling to Eliminate Cyber-Casinos
Michael P. Kailus | 1999 U. Ill. L. Rev.
The personal computer is a staple of the American home, providing millions of Americans access to the Internet. The broad accessibility of the Internet has impacted numerous commercial markets, including the heavily regulated gambling industry. Over the past couple of years, the gaming industry has experienced the introduction of cyber-casinos, Web sites where subscribers play electronic games of chance, and Internet sports betting parlors. Despite dubious legality, the number of gambling Web sites is growing at a meteoric rate. Sensing that Internet gaming is here to stay, federal and state legislatures, courts, and traditional gaming organizations are attempting to address the future of on-line gambling. This note discusses the political, legal, and social ramifications of the on-line gambling market, and addresses whether Congress and state legislatures should adopt an outright ban. After examining the various arguments on both sides of the prohibition debate, the author concludes that the federal government should regulate, rather than unilaterally prohibit, Internet gambling. Further, the author provides a regulatory model that Congress may adopt to implement some control over the rapidly expanding Internet gaming market.
Toward Adding Further Complexity to the Internal Revenue Code: A New Paradigm for the Deductibility of Capital Losses
Michelle Arnopol Cecil | 1999 U. Ill. L. Rev.
Professor Cecil, believing that the current tax treatment of capi-tal losses is fundamentally unfair and economically inefficient, offers a proposal to improve the capital loss limitation provisions of the In-ternal Revenue Code. Three tax concepts provoke the proposal: the progressivity of the current income tax structure, the notion that gains and losses are taxed only after they are realized, and the preferential treatment of capital gains. The present limitations on the deductibility of capital losses are supported in theory by three justifications: parallelism, cherrypicking, and bunching. The author argues, however, that the Code is ill-equipped to meet parallelism concerns and that cherrypicking is not a problem that a capital loss limitation scheme should address. Professor Cecil offers an alternative proposal for capital loss treatment that provides for parallel treatment of capital gains and losses by limiting the tax savings generated by capital losses to the tax rate applicable to capital gains. Professor Cecil argues that her pro-posal is superior to the current treatment of capital losses in light of fundamental fairness, economic efficiency, and political feasibility concerns. Further, the proposal benefits all taxpayers, regardless of income, and its added complexity results in fairness for all.
* Associate Professor of Law, University of Missouri-Columbia School of Law. B.A., J.D., University of Illinois. I would like to thank the Robert Maupin Faculty Research Fellowship and the Webb Gilmore Fac-ulty Research Fellowship for supporting my research for this article. I would also like to thank Molly Blackwell, Erik Edwards, and Carlos Lewis for their invaluable research assistance; Cheryl Poelling for her indispensable secretarial assistance; and Tracey George, Barbara Neilson, and Peter Wiedenbeck for their helpful comments on earlier drafts. Finally, I am grateful to Lynn Ogden, Jo Pasqualucci, and my husband Greg Cecil for their encouragement and support.
Snitching for Dollars: The Economics and Public Policy of Federal Civil Bounty Programs
Marsha J. Ferziger & Daniel G. Currell | 1999 U. Ill. L. Rev.
The federal government routinely pays individuals for tips that facilitate its regulatory and law enforcement efforts. However, in the aftermath of public reaction to Linda Tripp's role in bringing the Clinton-Lewinsky affair to light, combined with recent hostility to-ward IRS informant and collection practices, such bounty programs have fallen out of social and political favor. Indeed, the bounty pro-grams federal agencies offer are vastly inconsistent and devoid of a clear understanding of the incentives facing potential informants. These political and technical shortcomings of bounty programs un-dermine their effectiveness. In this article, Ferziger and Currell examine four federal bounty schemes-the False Claims Act and the schemes created by the SEC, IRS, and U.S. Customs Service-constructing an economic model to aid agencies and legislators alike in the formulation of more efficient and effective bounty programs. The authors first articulate a frame-work through which existing programs can be analyzed, elucidating such factors as informant anonymity, bounty award amounts, ad-ministrative program costs, and program publicity. Upon this frame-work, the authors set forth their comprehensive model of the incen-tives and motives underlying agency-informant interaction throughout the bounty process. Taking into account a host of socio-political concerns, the authors then demonstrate the real-world appli-cability of the economic model they have fashioned.
* Bigelow Fellow and Lecturer in Law, University of Chicago Law School.
** Associate, Winthrop & Weinstine, P.A., Minneapolis, Minnesota. The authors would like to thank James Cox, Sara Tollefson Currell, David Currie, Steven Duf-field, Richard Epstein, Daniel Fischel, Erik Luna, Brian Nagorsky, Douglas Sylvester, Ralph Vartabe-dian, Adrian Vermuele, and Sarah Waldeck for extremely helpful information, comments, and discus-sion. Errors are ours alone, although each of us will probably blame the other.
The Emerging Third Strand in Equal Protection Jurisprudence: Recognizing the Co-Constitutive Nature of Rights and Classes
Julie A. Nice | 1999 U. Ill. L. Rev.
In this article, Professor Nice identifies an emerging third strand in equal protection jurisprudence. She first summarizes the history of equal protection doctrine and the development of its first two strands-suspect classes and fundamental rights. Professor Nice then suggests that the meanings of rights are understood by the classes that do and do not hold them, and classes are understood by the rights they do and do not hold. This approach integrates the concepts of rights and classes, thus enhancing equal protection doctrine. To illustrate the emerging third strand, Professor Nice examines three Supreme Court cases-Romer v. Evans, Plyler v. Doe, and M.L.B. v. S.L.J.-that she terms outlier cases because of the Court's departure from traditional two-strand analysis. Professor Nice con-tends that these cases are better understood as involving the Court's implicit use of a third-strand approach. Professor Nice then analyzes the third-strand approach in light of four prominent theories of constitutional interpretation and sug-gests that her analysis comports with these principles. She concludes that equal protection requires courts to consider, in addition to the suspect classes and fundamental rights strands, a co-constitutive third strand that evaluates the interaction between rights and classes when determining whether heightened scrutiny should apply. This ap-proach, Professor Nice posits, could result in a functional, rather than stagnant, application of the equal protection mandate.
* Visiting Professor, University of Michigan Law School and Associate Professor, University of Denver College of Law. I am grateful for helpful comments from Mary Becker, Alan Chen, Christine Cimini, John Ely, Dan Farber, Jennifer Levi, the participants at Martha Fineman's Feminism and Legal Theory Workshop at Cornell Law School, and especially Martha Ertman.
Postumous Meddling: An Instrumentalist Theory of Testamentary Restraints on Conjugal and Religious choices
Jeffrey G. Sherman | 1999 U. Ill. L. Rev.
In this article, Professor Sherman argues that testamentary con-ditions restricting the personal conduct of legatees should be prohib-ited. He begins the piece with a defense of testation as an institution, exploring the reasons why society permits testation at all. He rejects the economic arguments that the abolition of testation would upset the economic markets by altering property owners' investment decisions and would lead to government ownership of all property. Instead, he argues that since people desire the right to bequeath their property to their progeny, society should help them do so unless there are good reasons opposing the practice. Because it is offensive to aid the dead in controlling the personal choices of the living, Professor Sherman proposes that the law should not enforce testamentary conditions re-stricting conjugal and religious matters. Professor Sherman then compares current law and the results stemming from his theory. Although courts currently examine testa-tors' motives in deciding whether to enforce conditions inducing di-vorce, generally sustain conditions restricting religious choices, and deal with restraints against marriage in a variety of ways, Professor Sherman argues that none of these conditions should be enforced. Fi-nally, he discusses what consequences should follow a court's invali-dation of a condition in a will.
* Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology. A.B. 1968; J.D. 1972, Harvard. In writing this article, I have benefited enormously from the thoughtful advice and challenging suggestions of Kathy Baker, Jesse Dukeminier, Alan Gunn, Sarah Harding, Howard Helsinger, Steven Heyman, Richard McAdams, Sheldon Nahmod, Dale Nance, and Jeffrey Stake, and I am grateful to them for their interest and assistance. I must also thank my diligent and skillful student research assistant, William Brodzinski. I would also like to thank the Marshall D. Ewell Research Fund for providing sup-port for the writing of this article.
"Paying-To-Play" Is the New Rule of the Game: A Practical Implication of the Private Securities Litigation Reform Act of 1995
Samantha M. Cohen | 1999 U. Ill. L. Rev.
In the following note, Samantha Cohen examines the prevalence of "paying-to-play" in securities class action litigation and the impact the Private Securities Litigation Reform Act of 1995 has had on it. Rather than curbing paying-to-play, the Act has exacerbated the in-creasingly prevalent practice whereby lawyers make donations to government officials or candidates with hopes that the grateful politi-cians will later award them profitable legal work. Through paying-to-play, a contribution to the right political campaign often matters more than ability or reputation when the time comes to appoint the lead counsel in a class action litigation. Numer-ous plans have been proposed to end paying-to-play, including an outright ban on contributions, a new ethical rule expressly condemn-ing the practice but stopping short of an outright ban, and a competi-tive bidding process in which the judge in the suit evaluates bids from aspiring firms. The author endorses the last of these proposals. In a competitive bidding process, a firm may still make political contributions, but it must also prove that it can offer the most quali-fied legal representation based on its experience, financial capacity, and fee. According to the author, a competitive bidding process best ensures that neither the interests of the plaintiff nor the honor of the legal profession is sacrificed.
* I would sincerely like to thank Professor Richard Painter who provided me with indispensable guidance from the outset of this note and throughout its many drafts. I am also grateful to Professor Cynthia Williams for her valuable comments.
Accountability and World Leadership: Impugning Sovereign Immunity
Michael P. Davis | 1999 U. Ill. L. Rev.
The arrest of General Augusto Pinochet Ugarte, Chile's former military dictator, shocked the international community. Pinochet, in Great Britain on a diplomatic passport, was detained pursuant to a Spanish extradition warrant in an attempt to force the former head of state to answer for the atrocities that occurred in Chile during his reign. While Pinochet awaits his seemingly inevitable extradition to Spain, the world is left to consider whether the principles of immu-nity-the framework for centuries of international diplomatic rela-tions-are still intact. This note makes use of the events surrounding Pinochet's arrest to consider the evolution of the immunity given to foreign diplomats and heads of state. Although the author specifically addresses potential courses of action to deal with Pinochet's current situation and the consequences and implications of these various ap-proaches, he also discusses more general issues of leadership, ac-countability, and international relations. More pointedly, the author examines the most appropriate and effective means by which the international community should handle leaders like Pinochet, concluding that a centralized global enforce-ment mechanism is the best approach. The author acknowledges the tension that will seemingly always accompany any legal action an-other nation or a group of nations takes against a head of state. He notes, however, that this discussion is necessary because the continued interconnectedness of the global economy and the ever-growing rec-ognition of human rights will lead to a more uniform intolerance for actions like those Pinochet demonstrated.
* The author would like to dedicate this note, in loving memory, to Kimberly J. Suddendorf. Eventus stultorum magister.