Volume 2000Masthead PDF
Symposium: Innovations in Environmental Policy
The Most Creative Moments in the History of Environmental Law: "The Whats"
William H. Rodgers, Jr. | 2000 U. Ill. L. Rev.
In preparation for this symposium piece, Professor Rodgers asked a number of his colleagues active in the field of environmental law to identify what they considered to be the most creative moments in the history of environmental law. He gave no specific instructions with his request other than providing a definition of what he consid-ered to be a creative moment: "A legal initiative that advances envi-ronmental law with a new level of analysis, new structure, or new in-stitutional bridge."
This article is a compilation of the numerous responses the author received. The responses formulate a detailed and informative description of many aspects of the history and development of envi-ronmental law. To organize the piece, Professor Rodgers separates the creative moments into nine categories. He then concludes the arti-cle with a list of the ten most creative moments in the history of envi-ronmental law.
* Stimson Bullitt Professor of Environmental Law, University of Washington School of Law. A companion article, entitled "The Most Creative Moments in the History of Environmental Law: The 'Whys,'" appears in the Washburn Law Journal, 39 WASHBURN L.J. 1 (1999). Appreciation is ex-pressed to Katherine Drews, Class of 1999, University of Washington School of Law, for assistance in preparation of this article.
The New "Contractarian" Paradigm in Environmental Regulation
David A. Dana | 2000 U. Ill. L. Rev.
In response to criticism of the traditional command-and-control approach to environmental regulation, state and federal regulators have created a "contractarian" approach. More specifically, contrac-tarian environmental regulation consists of an arrangement in which regulators agree not to enforce various laws applicable to regulated entities in exchange for the entities' agreements to fulfill additional obligations not required by existing law. In this article, Professor Dana argues that the contractarian ap-proach stems from two factors: political disagreements that make the amendment of existing environmental laws difficult and the complex-ity of environmental problems, which makes a decentralized ap-proach to regulation desirable. He then discusses four recent regula-tory reform initiatives that both illustrate how contractarian regulation works and explicate the difference between it and com-mand-and-control regulation. Professor Dana argues that the con-tractarian approach, as compared to its command-and-control coun-terpart, has potential costs as well: decreased participation in the regulatory process by environmental advocacy groups and stasis in the overall regulatory system. Finally, Professor Dana contends that Congress must address any shortcomings of the contractarian ap-proach and strike a balance between the approach's enhancement of localized environmental regulation, on the one hand, and its potential to cause regulatory entrenchment and decreased public participation, on the other.
* Professor of Law, Northwestern University School of Law and Faculty Fellow, Institute of Policy Research, Northwestern University.
Triangulating the Future of Reinvention: Three Emerging Models of Environmental Protection
Daniel A. Farber | 2000 U. Ill. L. Rev.
Environmental regulations and EPA actions have become in-creasingly improvisational in recent years. This reinvention of envi-ronmental law has led to three possible scenarios for the future. The first model is a unilateral one, in which firms are self-regulating enti-ties and the government serves only to encourage and enforce such self-regulation. A second, multilateral model focuses on the involve-ment of many parties in the regulation process. Finally, the bilateral model stresses bargaining between governmental regulators and the firms being regulated.
Professor Farber concludes that the bilateral bargaining model offers the most promising vision of the immediate future of environ-mental regulation. Although some additional insights can also be gained from the other two models, Professor Farber believes that the bilateral model strikes the most appropriate balance between flexibil-ity and accountability.
* Henry J. Fletcher Professor of Law and Associate Dean for Faculty, University of Minnesota. Thanks to Jody Freeman and Dan Gifford for helpful comments.
The Triumph of Technology-Based Standards
Wendy E. Wagner | 2000 U. Ill. L. Rev.
In the following article, Professor Wagner chooses a heretofore unpopular approach to pollution control, technology-based stan-dards, as her favorite innovation in environmental law. In selecting technology-based standards, Professor Wagner has chosen to focus on the fundamental or base innovations at the core of environmental programs rather than secondary or tertiary approaches that merely fine-tune existing regulatory controls.
The Environmental Protection Agency creates technology-based standards to control air, water, and land pollution. Only after deter-mining the capability of currently available technologies to meet con-gressional goals with regard to an industry will the Agency set its standards for that industry. Professor Wagner argues that this proce-dure provides a moral imperative for regulated entities to do their best when public health and the environment are at stake. She also con-tends that the ease of promulgation, superior enforceability, even-handedness in application, and eminent adaptability of technology-based standards all serve to enhance their desirability as a founda-tional regulatory program.
Professor Wagner responds to the critics of technology-based standards by showing that these standards are generally more efficient as base innovations than alternative approaches, such as cost/benefit- or market-based controls. In addition, she argues that, rather than freezing technology, the standards can create incentives to pioneer the development of new technologies. Finally, Professor Wagner points to the untapped capabilities and potential breadth of the future appli-cations of technology-based standards as reasons to embrace these standards as a trustworthy approach to environmental protection.
* Professor, Case Western Reserve University School of Law and Weatherhead School of Management.
Five Paths of Environmental Scholarship
Eric T. Freyfogle | 2000 U. Ill. L. Rev.
In this interpretive essay, Professor Freyfogle surveys the field of environmental law scholarship and finds a great deal that is lacking. Far too often, he argues, scholars begin their writings by skipping over foundational issues-issues such as the locus of moral value, the nature of humans, the limits on human knowledge, the ultimate causes of environmental degradation, and the overall aims of envi-ronmental law.
Freyfogle divides contemporary scholarship and scholars into five groups: Libertarians, Simple Fixers, Dispute Resolvers, Progres-sive Reformers, and Advocates for the Land Community. Differences among them, he argues, deal chiefly with underlying issues that are rarely joined and, in the case of some scholars, perhaps never well considered. The failure to address these issues more openly, he con-tends, weakens the scholarly field as a whole, making it less useful in particular for nonlaw readers. His essay concludes with speculations on student law journal article selection processes and their impacts on environmental law as an academic field.
* Max L. Rowe Professor of Law, University of Illinois College of Law.
From Research to Policy: The Case of Environmental Economics
Wallace E. Oates | 2000 U. Ill. L. Rev.
In his contribution to this symposium issue, Professor Oates ex-amines the impact of economic analysis on environmental policy over the last thirty years. He begins by describing the exclusive reliance on a command-and-control approach in the early years of environmental regulation and explains why economics and economists had so little impact at that stage of policymaking. Next, drawing on examples from the history of environmental regulation, Professor Oates details the evolution of environmental policy instruments and the methods used to set environmental standards, tracing the emergence of trad-able emission permit systems as the dominant form of incentive-based policy instruments in the United States (in contrast to Europe). He then describes the virtues and limits of benefit-cost analysis in the en-vironmental policy arena and concludes with some reflections on the importance of economic research and theory to sound environmental policymaking.
* Professor of Economics, University of Maryland; University Fellow, Resources for the Future.
Encouraging Firms to Police Themselves: Strategic Prescriptions to Promote Corporate Self-Auditing
Jay P. Kesan | 2000 U. Ill. L. Rev.
Companies often face a difficult choice in determining the best way to maintain compliance with environmental regulations. Al-though internal environmental compliance audits can be an effective preemptive measure to prevent violations, disincentives such as crimi-nal or civil liability may prevent many firms from implementing compliance audits for fear that their own documents may be used against them in court.
One proposed solution to this problem is an environmental self-evaluative privilege, which would prevent audit materials from being used against the firm implementing the audit, thus removing the disin-centive. In the following article, however, Professor Kesan presents a formal game theory model to argue that, although the self-evaluative privilege removes the disincentives, it does not create any positive in-centives for companies to police themselves. Professor Kesan employs an equilibrium analysis to demonstrate that a multipronged approach, which permits regulatory access to audit materials, provides mitigated penalties for self-policing firms, and limits third-party use of audit materials, is the most effective legal regime to encourage firms to po-lice themselves. Such a regime minimizes the fear of self-incrimination but maintains the positive incentives to self-police that regulatory access provides.
* Assistant Professor of Law, University of Illinois College of Law. This article has benefited from the helpful comments provided by the participants in this sympo-sium and faculty seminar participants at the Duke University School of Law, the University of Illinois College of Law, and the Program in Environmental and Resource Economics at the University of Illi-nois. I am also grateful to Carlos Ball, Dan Farber, Russell Korobkin, Andy Leipold, Richard McAd-ams, Alan Meese, Barry Mishra, Richard Painter, Jim Pfander, Bill Rodgers, Steve Ross, and Tom Ulen for their helpful comments and suggestions on an earlier draft of this paper. Finally, I would like to thank Andi Frieden for her excellent research assistance, Amy Radosevich at the University of Illinois Law Review for her careful editorial work, and Peggy Olsen for her thorough drafting assistance.
The Continuing Innovation of Citizen Enforcement
Barton H. Thompson, Jr. | 2000 U. Ill. L. Rev.
In this article, Professor Thompson examines the role of private citizens in the field of environmental enforcement. Federal environ-mental statutes permit private citizens to bring suit to enjoin or pe-nalize environmental violations. Individuals serving as prosecutors have filed thousands of such lawsuits in the past thirty years. Citizen suits, however, are just one of three ways individuals and nonprofit organizations are involved in environmental enforcement. Both groups also perform the roles of monitor and informer. In their role as monitors, citizens and nonprofits ferret out potential environ-mental violations in their communities. Acting as informants, citizens report information concerning violations that have occurred. Profes-sor Thompson concludes that all three roles-prosecutor, monitor, and informant-are useful innovations in environmental law, but the greatest value comes from the encouragement of broad citizen envi-ronmental monitoring.
* Robert E. Paradise Professor of Natural Resources Law, Stanford Law School. Tremendous thanks are due to Professor Russell Korobkin for organizing the symposium on In-novation in Environmental Law at the University of Illinois College of Law, to the symposium partici-pants for their thoughtful insights on citizen enforcement, and to J.B. Ruhl for his valuable comments on this article. I also am indebted to the Hoover Institution, where I was a visiting fellow during the spring of 1999, for its support while writing this essay.
Beyond Cost/Benefit: The Maturation of Economic Analysis of the Law and Its Consequences for Environmental Policymaking
Lynn E. Blais | 2000 U. Ill. L. Rev.
In this article, Professor Blais examines the role of economic analysis in the formulation of environmental law and policy. More specifically, she documents the era of pervasive governmental regula-tion that began in the 1970s with the enactment of the Clean Air, Clean Water, and Endangered Species Acts and the promulgation of their implementing regulations. This era of regulation constituted a sea change in environmental protection in that the common law bal-ancing approach was rejected in favor of a regulatory framework that consciously eschewed cost/benefit analysis.
In the decades following the adoption of this scheme, however, policymakers and courts introduced cost/benefit analysis and quanti-tative risk assessment into most environmental regulations.
Professor Blais counsels against overreliance on quantifying costs, benefits, and risks. Instead, environmental policy should incor-porate developing economic and sociology data that demonstrates how people really respond to traditional economic factors. Further-more, Professor Blais notes that the values embedded in environ-mental protection statutes cannot be casually reduced to an economic formula. Because market-based reforms are based primarily on eco-nomic cost/benefit and risk assessments, she argues that such reforms should be reconsidered. The next step, according to Professor Blais, is to develop a new approach to environmental protection as intuitively appealing as the market-based reforms but incorporating newly de-veloped economic and behavioral theories as well as the idea that en-vironmental protection cannot be measured in economic terms.
* Professor of Law and Associate Dean for Academic Affairs, The University of Texas School of Law. The author would like to thank Professor Russell Korobkin and the editorial board of the Univer-sity of Illinois Law Review for organizing and hosting this symposium.
"Environmental Racism! That's What It Is."
Richard J. Lazarus | 2000 U. Ill. L. Rev.
In this essay, Professor Lazarus discusses former NAACP di-rector the Rev. Dr. Benjamin Chavis's characterization of U.S. envi-ronmental policy as "environmental racism." He first justifies this provocative topic choice and then suggests that Chavis's allegation has transformed environmental law. Professor Lazarus next discusses the details of this transformation, arguing that Rev. Chavis has essen-tially reshaped the way environmental law and justice are conceived. He offers examples of various environmental programs and social and political effects traceable to Chavis's environmental racism com-ment. Finally, the conclusion provides some of the author's rumina-tions about the future of environmental law and policy.
* John Carroll Research Professor of Law, Georgetown University Law Center. This essay is based on a talk presented at the University of Illinois College of Law on April 16, 1999, at a symposium on "Innovations in Environmental Policy" sponsored by the University of Illinois Law Review and the University of Illinois Institute of Government and Public Affairs. Thanks are owed to both sponsors, as well as to Professor Hope Babcock for her comments on an early draft of this arti-cle; Staci Krupp, Georgetown University Law Center Class of 2000, for her excellent research assistance in the preparation of both the talk and this article; and Tom Shebar, Georgetown University Law Center Class of 2001, for his excellent assistance in the completion of this article.
Explaining Market Mechanisms
Thomas W. Merrill | 2000 U. Ill. L. Rev.
In recent years, environmental regulation has seen a debate be-tween supporters of traditional command-and-control regulation-a system of uniform pollution control standards-and proponents of a system of fees or permits for individual polluters known as market mechanisms. In this article, Professor Merrill considers two theories, wealth-maximization theory and distributional theory, that have been used to explain the emergence of market mechanisms in American environmental policy. He notes that (1) relatively few American envi-ronmental-enforcement programs have adopted market mechanisms; (2) those that exist overwhelmingly use grandfathered transferable permits instead of pollution taxes or auctioned permits; and (3) they are always based on pollution control standards that have been estab-lished before the market mechanisms are put in place. Professor Merrill finds that the distributional theory best explains why grand-fathered permits are used most often and why, more generally, adop-tion of market mechanisms is not more widespread. Finally, noting that no inherent conflict exists between the wealth maximization and distributional theories, Professor Merrill concludes that a framework building upon both theories may lead to a better understanding of the debate between command and control and market mechanisms.
* John Paul Stevens Professor of Law, Northwestern University. The author is grateful for suggestions provided by David A. Dana, William H. Rodgers, Jr., and Henry E. Smith.
The Psychology of Global Climate Change
Jeffrey J. Rachlinski | 2000 U. Ill. L. Rev.
In its attempt to address the threat of global climate change, so-ciety has struggled to reach a consensus regarding the need for pre-ventive measures. Professor Rachlinski describes the threat of global climate change as a unique commons dilemma and explains that various psychological phenomena of judgment render it unlikely that society will be able to respond effectively to the threat. After consid-ering the effects of biased assimilation, loss aversion, and other psy-chological processes, the author explains that an innovative approach is necessary to properly address the dilemma of global climate change.
Specifically, the author examines the prospect of governmental intervention through taxes or regulations as well as the development of collective norms against combustion of fossil fuels. Because the above-mentioned psychological phenomena hinder each of these po-tential remedies, the author ultimately concludes that the only remedy for the problem of global climate change is an elimination of the commons dilemma itself. The author suggests that by developing al-ternatives to fossil fuels, the problem of global climate change can be addressed in spite of social and cognitive limitations.
* Associate Professor of Law, Cornell Law School. The author received valuable comments on this paper from participants in the symposium, "Inno-vations in Environmental Policy," sponsored by the University of Illinois Law Review and the Univer-sity of Illinois Institute of Government and Public Affairs.
What if the Victim is a Child? Examining the Constutionality of Louisiana's Challenge to Coker v. Georgia
David W. Schaaf | 2000 U. Ill. L. Rev.
In 1995, the Louisiana state legislature authorized courts to im-pose the death penalty for aggravated rape where the victim is a child under twelve years of age. According to Louisiana law, the rape of a child is a strict liability offense inherently deserving of the death pen-alty. This note suggests that Louisiana's death-penalty statute for child rape is unconstitutional under the Supreme Court's analysis in Coker v. Georgia. Although Coker invalidated a statute that author-ized the death penalty for the rape of an adult, the author argues that the same reasoning applies in evaluating the Louisiana statute. More specifically, the author first examines the history of the death penalty, then analyzes in detail the Louisiana statute, consider-ing whether the punishment is excessive and disproportionate to the crime of child rape and whether the punishment is arbitrary and ca-pricious. Upon predicting that the Supreme Court will either declare the Louisiana statute unconstitutional or overrule Coker, the author concludes that Louisiana's death-penalty statute for child rape im-poses disproportionate punishment and is arbitrary and capricious in its application.
* I would like to thank Professor Kit Kinports for her guidance in choosing this topic and for her con-tinued assistance throughout the writing process.
Can Parents Vicariously Consent to Recording a Telephone Conversation on Behalf of a Minor Child?: An Examination of the Vicarious Consent Exception under Title III of the Omnibus Crime Control and Safe Streets Act of 1968
Debra Bogosavljevic | 2000 U. Ill. L. Rev.
This note examines the privacy rights of children under title III of the Omnibus Crime Control and Safe Streets Act passed by Con-gress in 1968. Title III strictly regulates the interception of wire and oral communications, providing both criminal and civil liabilities for violators of the statute's prohibitions.
More specifically, the author evaluates the application of title III's civil liability component to situations involving parents em-broiled in divorce or child custody proceedings who tape their chil-dren's conversations with the other parent. The note focuses on title III's vicarious consent exception, which enables an individual to avoid liability for recording a person's conversation if that person has consented to such a recording. The author searches for the correct interpretation of this exception, questioning whether parents should be permitted to speak for their children and waive their children's rights to privacy under title III. Although parents who are acting in the best interest of the child currently enjoy the protection of the vi-carious consent exception in most states for recording their children's conversations, the author concludes that questionable parental mo-tives should prompt courts to more actively protect children's privacy and thus limit the application of the vicarious consent exception.
When Is Religious Speech Not "Free Speech"?
Steven G. Gey | 2000 U. Ill. L. Rev.
Advocates of religious speech have strategically used the First Amendment's Free Speech Clause to undermine the limitations on speech in the First Amendment's Establishment Clause. In the face of these constitutional challenges, courts confronting the issue of relig-ious free speech rights throughout the country have come to divergent conclusions. Because limits on religious speech are necessary to pro-mote religious liberty, Professor Gey argues that religious speech should be treated differently than other types of speech under the First Amendment. Specifically, he suggests that courts confronting Estab-lishment Clause issues should adopt an "opt-out" rule, whereby pri-vate religious expression at a government forum violates the Estab-lishment Clause if the court finds that an individual must opt out of a government benefit to avoid participating in the religious expression.
Professor Gey points out that the opt-out rule would not bar all private religious expression from government forums; it would only bar private religious speech that dominates the forum such that nonadherents must forgo access to the forum or be forced to partici-pate in the religious exercise. This rule, he argues, would be consistent with the limitations that the Supreme Court has set forth in Windmar v. Vincent and Board of Education v. Mergens. Thus, local officials may permit private religious expression when it is offered in a manner that allows parties who are predisposed to participate to opt into the religious exercise. Yet it also imposes a duty on public officials to pre-vent private individuals from using a government forum to impose religious pressure indirectly by creating a gauntlet for religious dis-senters.
* Fonvielle & Hinkle Professor of Litigation, Florida State University. B.A., 1978, Eckerd College; J.D., 1982, Columbia University.
Purging the Cruel and Unusual: The Autonomous Excessive Fines Clause and Desert-Based Constitutional Limits on Forfeiture After United States v. Bajakajian
Barry L. Johnson | 2000 U. Ill. L. Rev.
Within the past twenty years, asset forfeiture has become an im-portant tool in fighting crime. The Supreme Court recently clarified important constitutional issues regarding asset forfeiture in its 1998 opinion United States v. Bajakajian. In this piece, Professor Johnson explores the nuances and implications of the Supreme Court's hold-ings within the framework of the Eighth Amendment.
More specifically, the author explores the case law treating the Excessive Fines Clause. In his extensive critique of the Bajakajian de-cision, Professor Johnson then clarifies the arguments put forth in both the majority and dissenting opinions. He asserts that the propor-tionality review the majority adopted in Bajakajian is implicitly a case-specific, desert-based limitation. Finally, the author argues that this standard is flawed because of its extreme deference to legislative decisionmaking and the blurring of the Excessive Fines Clause and the Cruel and Unusual Punishments Clause that it evidences. Thus the Court's decision in Bajakajian has the potential to undermine mean-ingful judicial review of forfeitures under the Excessive Fines Clause.
* Associate Professor, Oklahoma City University School of Law. J.D., University of Michigan, 1988. Financial support for this research was provided by the Kerr Foundation and the Oklahoma City University School of Law.
Race and Immigration Law: A Paradigm Shift?
George A. Martínez | 2000 U. Ill. L. Rev.
* Associate Professor of Law, Southern Methodist University. B.A. 1976, Arizona State University; M.A. (Philosophy) 1979, The University of Michigan; J.D. 1985, Harvard Law School.
Race Matters: Immigration Law and Policy Scholarship, Law in the Ivory Tower, and the Legal Indifference of the Race Critique
Kevin R. Johnson | 2000 U. Ill. L. Rev.
This essay builds on comments made at the Immigration Law Teachers Workshop at the University of California, Berkeley School of Law in May 1998. Thanks to Michael Scaperlanda and Patty Blum for their leadership in organizing the workshop and allowing me to participate. Although I previously had shared the ideas generally expressed here with several people, this essay began in earnest as introductory remarks to the panel entitled "Different Perspectives on Immigration Law and Policy" at the workshop. I am indebted to the panelists, Gil Gott, George A. Martínez, and John A. Scanlan, for preparing papers that stimulated my thinking. Some of the ideas expressed here were also developed for the Section on Immigration Law program "Perspectives on Citizenship" at the Association of American Law Schools (AALS) 1999 annual meeting. Thanks to my co-panelists, Neil Gotanda, Susan Forbes Martin, Dorothy Roberts, Peter Schuck, Anna Williams Shavers, and Peter Spiro, for making presentations that challenged my analysis. Some of the ideas articulated here were also presented at the American Society of International Law 1999 annual meeting, where my co-panelists (Gil Gott, Susan Akram, and Leti Volpp) and the audience, especially Peter Spiro, offered helpful feedback. Thanks to Berta Hernandez and Gil Gott for arranging this platform. This paper benefited from comments of the Asian Pacific American Critical Race Theory reading group at UC Davis. Thanks to Kent Ono for inviting me to pre-sent this paper and to Angie Chabram-Dernersesian, Bill Ong Hing, Wendy Ho, Beatriz Pesquera, and Karen Shimikawa for their thoughtful comments. The presentations at the AALS 2000 annual meeting of Linda Bosniak, Lolita Buckner Innis, George A. Martínez, Natsu Taylor Saito, and John A. Scanlan on the joint program of the Minority Groups and Immigration Law Sections on Race and Immigration Law also informed my analysis. I appreciate the thoughtful comments of Cecelia Espenoza, Bill Ong Hing, George A. Martínez, Michael A. Olivas, Victor C. Romero, Michael Scaperlanda, Leti Volpp, Gil Gott, Peter Margulies, Anupam Chander, and Joel C. Dobris on a draft of this article, as well as the fi-nancial and other support of Dean Rex R. Perschbacher. Finally, thanks to Joan Fitzpatrick, Bill Ong Hing, George A. Martínez, Michael A. Olivas, and John A. Scanlan for engaging the ideas in my article in this special issue.
* Associate Dean for Academic Affairs and Professor of Law, University of California, Davis School of Law. A.B., University of California at Berkeley; J.D., Harvard University.
The author borrows the introductory phrase in the title from CORNEL WEST, RACE MATTERS (1993).
No Place for Angels: In Reaction to Kevin Johnson
Bill Ong Hing | 2000 U. Ill. L. Rev.
* Professor of Law and Asian American Studies, University of California at Davis; General Counsel, Immigrant Legal Resource Center.
Race, Immigration, and Legal Scholarship: A Response to Kevin Johnson
Joan Fitzpatrick | 2000 U. Ill. L. Rev.
* Jeffrey & Susan Brotman Professor of Law, University of Washington.
Immigration Law Teaching and Scholarship in the Ivory Tower: A Response to Race Matters
Michael A. Olivas | 2000 U. Ill. L. Rev.
* William B. Bates Professor of Law, University of Houston Law Center (UHLC).
Call and Response: The Particular and the General
John A. Scanlan | 2000 U. Ill. L. Rev.
* Professor of Law, Indiana University School of Law at Bloomington. A.B. 1966, University of Notre Dame; M.A. 1967, University of Chicago; Ph.D. 1975, University of Iowa; J.D. 1978, Notre Dame Law School.
Federal Criminal Fraud and the Development of Intangible Property Rights in Information
Geraldine Szott Moohr | 2000 U. Ill. L. Rev.
In recent years, new kinds of intangible property have become increasingly important in our information-based economy. In her ar-ticle, Professor Moohr addresses the responses of federal courts to fraudulent interferences with various kinds of this growing genre of property.
Specifically, Professor Moohr begins with a historic overview of the development of the concepts of intangible property and fraud. She then traces Supreme Court decisions that adopt a narrow, restrictive application of traditional criminal statutes to intangible property and contrasts them with later decisions that indicate a shift to a much broader approach for protecting intangible property from fraudulent takings.
Professor Moohr then posits that the criminal law forum is not an appropriate one in which to define the nuances of fraud and intan-gible property rights. Focusing on public policy concerns regarding efficient use of information and employee mobility, she recommends that courts restrict the use of traditional fraud statutes to protect in-tangible property. She offers two criteria-the public nature of busi-ness information and the objective economic value of nonpublic in-formation-to guide courts in determining which types of intangible property should be subject to the traditional statutes.
* Associate Professor of Law, University of Houston Law Center. B.S., University of Illinois; M.S., Bucknell University; J.D., American University. I would like to thank Paul Janicke, Craig Joyce, and Raymond Nimmer for guiding me through the intricacies of intellectual property law. I am also grateful to Irene Merker Rosenberg and to participants in the Young Scholars Workshop of the Southeastern Conference of the American Association of Law Schools for their comments. Jennifer Adamson and Craig Uhrich provided excellent research assistance. I lay claim to all errors. The George Butler Research Fund of the University of Houston Law Center Foundation supported work on this article.
A Tribute to John H. McCord upon His Retirement
University of Illinois Law Review | 2000 U. Ill. L. Rev.
Jack McCord was born on December 22, 1934, in New York State. He grew up in the Village of Lynbrook, Long Island, and attended ele-mentary school in the Lynbrook public schools. Like most kids, he played lots of basketball and baseball. There were no formal Little Leagues at this time, so neighborhood teams would draft older brothers as occasional managers, coaches, and umpires and would advertise in the local paper for games with teams from areas within biking distance. As children of the depression and wartime America, most kids tried to get part-time jobs to earn some spending money. Professor McCord deliv-ered papers from age ten to fourteen. He recalls that the richest time in his life, adjusted for inflation, was when he worked the "five corners" in the center of Lynbrook for the special editions on V-E and V-J days. People would pay $1 or $5 for a 5¢ paper and say, "Keep the change kid." A principal beneficiary of this generosity was the baseball team's catcher who received a mask, chest guard, and knee and leg guards from Professor McCord's good luck.
Professor McCord attended Xavier High School in New York City, commuting daily from Lynbrook on the Long Island railroad and Sev-enth Avenue subway. Apart from rigorous Jesuit academics, Jack par-ticipated in intramural sports and in a number of extra curricular activi-ties and was a three-year member of the varsity rifle team, which successfully competed against college teams. After graduation he entered the Society of Jesus (Jesuit Order) but left the Order before taking the formal, public Vows of Religion at the end of Novitiate.
Professor McCord attended Fordham College, earning an A.B. in 1957. At Fordham, he served as class president, senator in the bicameral student government, and was appointed justice of the student court. He was also cadet commander of the Air Force ROTC. His extracurricular activities included the glee club, drama society, and the school newspa-per. His commitment to Fordham and active involvement in extracur-ricular activities earned him an election to the Fordham Club-an hon-orary and service society limited to twenty seniors. While at Fordham, Professor McCord held a number of part-time and summer jobs to help finance his education. He worked as a truck driver for Parkwood Nassau, Inc. and had the privilege of joining the Teamsters Union as a dues-paying member with no benefits! He also worked as a bellhop, bar-tender, and waiter at the Garden City Hotel on Long Island and as a short-order cook at a diner on West 57th Street in New York City. The late-night crowd at the diner was a mix of policemen (who were never charged for a meal), cabbies, and what are now called "media types" from CBS studios across the street. Professor McCord was the distin-guished military graduate from Air Force ROTC and graduated sixth in a class of 347. He was commissioned a second lieutenant, active duty de-ferred so that he could attend law school.
As a St. Thomas More Fellow, Professor McCord attended St. John's University Law School on full scholarship and graduated first in his class, magna cum laude, in 1960. He joined the Law Review beginning in the second semester of first year and eventually served as managing editor of St. John's Law Review from 1959-60. Although he had no busi-ness or accounting courses-his background was in classics, math, phi-losophy, and theology-Professor McCord took personal income tax his first year and, for reasons he was unable to explain, did very well. Be-cause he was advised that the practice of law involved financial transac-tions and that taxes loomed large, he took all the elective tax courses and concentrated on tax in his law review research and writing. By the end of his second year, he claims tax started to become interesting-especially from a viewpoint of technical competence, statutory analysis, and micro- and macroeconomic impact. This led him to do mostly refund litigation during his summer clerkship with the U.S. Attorney's office and apply to the Tax Division of the Justice Department.
It was not going to be an easy interview. While Professor McCord was driving to the railroad station in Lynbrook on the morning of the in-terview, an oil truck ran a stop sign and into his old, second-hand Ply-mouth. He awoke in the hospital and stayed nearly a week. Thinking he had lost out on the opportunity, Professor McCord received a call from the Justice Department recruiter offering to interview him at home, where he was recuperating. Professor McCord got the job-and bought a new Austin Healy sports car with the settlement from the accident.
After law school, Professor McCord joined the U.S. Department of Justice as a trial attorney in the Tax Division. He was detailed in Febru-ary 1961 to the office of Deputy Attorney General Byron White (later Justice White). In that job he, along with another honor program attor-ney, was a "research gofer" tasked to research legal issues related to various initiatives being considered by the new Kennedy administration. They were all rush jobs followed by intensive briefing sessions with At-torney General Robert Kennedy. Very interesting-and exhausting.
Professor McCord was in Washington during the infamous snow-storm on the eve of Kennedy's inauguration-the evening of all the in-augural parties and balls. Along with all other government employees, Professor McCord was ordered to leave his office "and go home" at about 3:00 in the afternoon so that the streets might be clear for the par-tygoers. He picked up his roommate on the Hill and started driving down Constitution Avenue toward his apartment in Roslyn. D.C. drivers do not cope well with snow, and Constitution Avenue was littered with abandoned cars. Finally, he hopped the curb and drove down the only clear route-the sidewalk. At about 23rd Street, just before he would turn to cross Memorial Bridge to Virginia, he came upon a frustrated D.C. policeman standing and looking at all the abandoned cars. Profes-sor McCord figured he was good for a big ticket. But the policeman saw Professor McCord's car actually moving and waved him on!
Professor McCord spent three years in uniform as a captain in the Judge Advocate General's Corp. It was actually the Air Force that brought him to Illinois and to the College of Law. At the end of his detail at the Justice Department, he received orders to Schilling Air Force Base in Salina, Kansas. Schilling was a strategic air command base in the mid-dle of nowhere, so Professor McCord "hot-footed" it over to the Penta-gon with a list of law schools that had graduate programs and convinced the Air Force JAG personnel officer to assign him to Chanute Air Force Base in Rantoul, eighteen miles north of the University of Illinois.
Although Professor McCord had completed the course work for the LL.M. while in the Air Force, he had not finished his thesis. He could not have received his degree while a tenure-track member of the faculty, so he joined the University of Illinois College of Law as an instructor in 1964 and concurrently finished his thesis to earn an LL.M. in 1965. Fol-lowing commencement, he was promoted to assistant professor in 1965, associate professor in 1968, and professor in 1970. At Illinois, he has regularly taught the estate and gift taxation and estate planning courses at least once each academic year since 1965. From 1991 to 1993, Profes-sor McCord put his considerable organizational and administrative skills to work when he took up the mantle of associate dean for academic af-fairs for the College of Law-keeping the academic machine running smoothly and guiding the education of many fine lawyers.
In addition to estate taxation and estate planning, Professor McCord has regularly taught courses in income taxation, corporate taxa-tion, partnership taxation, and business planning and has occasionally taught courses in corporations, future interests, and professional respon-sibility. He taught decedent's estates and trusts "in a pinch" for a couple of years and, for the last ten years, this has been one of his regular offer-ings. He has been a frequent lecturer, panelist, moderator, and planner for estate-planning courses and institutes. Moreover, the University of Illinois has not been the sole beneficiary of his breadth and experience. Professor McCord taught at the University of North Carolina as a visit-ing professor in 1975 and at the University of Hawaii as a visiting profes-sor in 1976.
In the late 1970s, Professor McCord became interested in the possi-bility of computer applications for law. A self-taught programmer, he wrote a number of projection and modeling programs for estate planning tax analysis for his estate planning students to use. Unfortunately, the law school did not then have any computers for student use nor did stu-dents own computers. So Professor McCord placed the key to his office on reserve at the library loan desk, and his students worked with the pro-grams on Professor McCord's computer in his office on evenings and weekends.
While serving his country at the Justice Department and in the Air Force, Professor McCord managed to balance his professional life with starting a family. He and his wife Maureen, whom he met in law school, were married December 30, 1961, and they are proud parents to four children: sons John, Paul, and David and daughter Maureen.
After service as Navy officers, John and Paul both went to the Uni-versity of Illinois College of Law (classes of '99 and '95 respectively) and are now practicing law. Dave is a major in the U.S. Marine Corps, pres-ently stationed at Marine Corps Headquarters in Quantico, Virginia. Maureen Ellen (Mo) is an U.S. Army captain, presently serving as com-mander of the Signal Company in Okinawa. She will soon be joining her husband, Christopher Litwhiler, a military intelligence officer, in Seoul, Korea, where, Professor McCord says, they will probably be listening in on everybody's telecommunications.
Professor McCord has been a member of the American Bar Asso-ciation since 1960. He is a member of the ABA Section of Taxation and the Section of Real Estate, Probate, and Trust Law. He has served on the Tax Section's Committee on Continuing Education and on the Commit-tee on Estate and Gift Taxes. He has been chair of the Estate and Gift Tax Committee's Subcommittee on Gross Estate Issues and, in 1975, was the principal draftsman of the ABA legislative proposal on disclaimers.
Professor McCord joined the Illinois State Bar Association after his admission to the Illinois bar in 1964. He is a member of the ISBA Section on Federal Taxation, the Section on Trusts and Estates, and the Business Advice and Financial Planning Section. He served on the Executive Council of the Tax Section for about ten years and was the Section's sec-retary and chair. He was also a member of the original Executive Com-mittee of the Business Advice and Financial Planning Section. Further-more, he has served as president of the Eastern Illinois Estate Planning Council, reporter for the ALI-ABI study of business acquisitions, and consultant to the Staff of the Joint Committee on Taxation of the United States Congress.
In addition to lecturing nationwide at professional courses and seminars and serving on numerous course planning committees, Profes-sor McCord has been an academic advisor to the Illinois Institute for Continuing Legal Education (IICLE) and a member of the Advisory Council for the University of Miami Institute on Estate Planning. He re-tired from the board of directors of IICLE in July 2000, after serving three three-year terms. Professor McCord is a fellow of the American College of Trust and Estate Council (ACTEC) and has been continu-ously listed in Who's Who in America and Who's Who in American Law since 1974.
Not content to sit in the ivory tower of academia, Professor McCord has been and continues to be very involved with local and community service. Professor McCord is a long-term member of the Champaign County Bar Association. He is also one of the six male attorneys who are charter members of the East Central Illinois Women Attorney's Associa-tion. His wife, Maureen, was ECIWAA's first past president. He serves as a reader and Eucharistic minister in his church and is a member of its Building and Grounds Committee and the Pastoral Council.
Professor McCord is a member of the U.S Navy League and has served as an officer of the East Central Illinois Chapter. He is a member of the U.S. Naval Academy Parents and Alumni Club (Central Illinois Chapter) and has served as its president and newsletter editor. He is a member of the Dog Training Club of Champaign-Urbana and, for twenty-three years, has assisted its treasurer (his wife Maureen) in the financial accounting of this organization and the preparation of its tax re-turns. Since moving to his present residence in 1972, Professor McCord has been one of the Homeowners Association's principal volunteers, serving as resident agent of the non-for-profit corporation and a regular member of the board of directors. Not afraid to get his hands dirty, he is also the volunteer who maintains the subdivision's pond.
His years of professional development and service have brought Professor McCord more than a few awards and honors. Professor McCord claims, however, that he has a number of certificates of appre-ciation in a file somewhere and a few plaques in his basement. He men-tioned one early award-the "Mr. Xavier Award" for the "all-around outstanding graduate" that he received from St. Francis Xavier High School, New York-only because Justice Scalia received this award the year after Professor McCord.
Four honors and awards that Professor McCord particularly cher-ishes are the "Encaenia Award" from Fordham College for public ser-vice; the framed photo of Lincoln that he received for service to IICLE; the substantial contribution made by a College of Law alumnus in 1990 on condition that the new faculty lounge and conference room be named in honor of "Professor John H. McCord;" and the student evaluations reported in a 1997 issue of the College of Law newspaper that described him as both "the paragon of a law professor" and "one of the nicest in-structors in the College of Law." (Professor McCord says that this should not be a contradiction.)
As this volume goes to press, Professor McCord is far from slowing down. As always, he continues to master the art of juggling a half-dozen projects and speaking engagements at once, not to mention his normal course load. He has recently expanded the scope of his "pro bono" ac-tivities. Following a year-long course in canon law and procedure, he has been commissioned by the Tribunal of the Catholic Diocese of Peoria to assist persons who are preparing marriage cases before the Tribunal.
The College of Law is very proud of this transplanted New Yorker who has spent more than half of his life with us here at the University of Illinois. He has been an educator, friend, leader, and, most importantly, an example as he has taught and guided us through the last thirty-five years. Thank you, Professor McCord.
A Salute to Professor John H. McCord
Thomas M. Mengler | 2000 U. Ill. L. Rev.
It may not take a village, but a law school that excels in teaching, research, and service needs a faculty comprised of individuals who bring different skills, interests, and values to the table. Over these many years, the College of Law has prospered because we have had truly impressive faculty members who, each in his or her own way, have helped to fulfill the institution's collective missions.
As I review the outstanding career of Jack McCord, I look with ad-miration at a colleague who has done so well so many things that are im-portant to the mission of the College of Law. For almost thirty-five years, Jack McCord ably has imparted his knowledge of taxation, especially es-tate and gift taxation and estate planning, to thousands of students. On the research side, Jack has contributed numerous articles and books. The list of books is truly impressive:
In his service to the law school, to the University, and to the legal profession, Jack McCord also has been exceptional. Indeed, Jack is probably best known to scores of practitioners through his involvement with continuing legal education. This is the area in which law schools are most vulnerable to criticism-for our failure, in an ongoing way, to par-ticipate in lawyers' and judges' lifelong learning-and it is this arena in which Jack McCord has most visibly carried the banner of the College of Law. Jack has participated as a lecturer in countless CLE programs over the past three decades. He has taught programs with the Illinois Institute for Continuing Legal Education (IICLE); ALI/ABA; the Illinois State Bar Association Sections on Taxation and Estates and Trusts; the Chi-cago Bar Association Taxation Section; and in CLE programs at the University of Miami, Notre Dame, SMU, and Minnesota. Since 1991, Jack has served on the board of directors of IICLE. It is no exaggeration to say that for many years Jack McCord has been the College of Law's principal link to the bar. We are just as grateful for his service in this es-sential arena as are the countless numbers of practitioners who have benefited from Jack's depth of knowledge and expertise.
In other ways also-quiet, unassuming ways (which is Jack's style), Jack has served the College of Law so well. When the College of Law's administration was in transition in the early 1990s, Jack stepped forward and generously and ably served as associate dean for academic affairs. When the law school needed someone to teach legal ethics, Jack (who previously had been teaching entirely in the tax area) volunteered. When we needed someone to teach decedent's estates and trusts, Jack again volunteered.
Jack's collegiality, his personal warmth, and his unselfish, basic de-cency have been constants at the law school. These are all qualities that Jack McCord has in abundance and ones that the rest of us on the faculty aspire to have more of. Since I have known Jack now almost fifteen years, I have never received from him anything other than a warm smile and a hearty greeting.
I am very pleased that Jack's retirement includes what Professor Harry Krause calls a rehirement. Jack has graciously agreed to continue teaching two courses per year in the estate taxation and trusts area and to remain, as a consequence, the beloved, important colleague that he is. We thank Jack McCord for all that he has done, in his many ways, to make the law school the excellent place it is.
* Dean and Professor of Law, University of Illinois College of Law.
Professor John H. McCord: Bridging the Gap Between Law School and Law Practice in Illinois
Charles C. Bingaman | 2000 U. Ill. L. Rev.
I had the opportunity to work with Jack McCord in the late 1960s when he was a young law professor in Champaign, and I was an even younger lawyer creating and managing continuing legal education (CLE) courses and publications.
It was perfectly natural for me to invite Jack to teach in IICLE tax courses, and the outcome was always successful. He had a masterful abil-ity then-as he still does-to organize an enormous body of complex material and to help practitioners understand it. Jack served well into the 1970s as a planning committee member and regular teacher on IICLE's annual December federal tax course, explaining the fundamentals and new developments in income tax, estate and gift tax, and several specialty tax areas that needed his teaching touch. On more than one occasion, he filled in on short notice for practitioners who were scheduled to teach but were prevented from appearing because of illness or foul weather. It was understood that if Jack was around, every tax subject would be cov-ered-and covered well-even if the intended instructor failed to ap-pear.
That Jack never failed to elicit enthusiastic practitioner reviews was particularly remarkable in light of the traditional view among many prac-titioners that law professors are not, shall we say, immersed in the real world of the nitty-gritty of law practice.
Looking back now on the more than three decades in which I have worked with Jack in the teaching of practitioners, I can see that his multi-faceted efforts have constituted an extraordinary two-way bridge be-tween legal academia and legal practice, a bridge that has spanned the gulf lamented in every study of the profession in the past fifty years.
Key elements of that vital bridge Jack has created between the two branches of the profession in Illinois include the following:
In the early 1970s, Jack prepared the initial outline and edited the manuscripts for Closely Held Corporations, a multi-volume, best-selling practice handbook published by IICLE that lawyers throughout our state have relied on as the standard work in the field ever since. In addition, he has participated in the updating of CHC through several new editions and supplements, includ-ing the writing of supplements to four chapters as recently as the summer of 1999. Along the way Jack coordinated the plan-ning and writing efforts of a score of practitioners so that the work blends the law and the practice in a seamless and valuable way for those seeking practice guidance.
Later in the 70s and 80s, Jack was an architect-along with sev-eral practitioners-of Buying and Selling Businesses, an IICLE publication that enables lawyers and their clients to manage these vital transactions with skill and confidence.
In the 1990s, Jack was the University of Illinois College of Law's liaison with IICLE in a series of jointly sponsored annual courses entitled Advising Illinois Businesses. In that role, he planned the programs, taught tax and business planning ses-sions, and recruited other law school faculty to teach practitio-ners.
Through contacts Jack made in his CLE efforts, he was able to recruit practitioners for part-time teaching stints at the law school-visits that brought the practice into the academy and further built and maintained the bridge that is an important part of his legacy of teaching.
In an even more unusual step for a leader of the academic bar, Jack has always encouraged-and facilitated-attendance by his students at CLE programs. Even if it meant rescheduling classes, collecting checks (or financing course materials out of his own pocket), and handling other "arrangements," Jack put his students in touch with the practice at an early time in their legal educations. He made sure that they met the practice lead-ers in the fields of study and understood the importance of ca-reer-long learning.
Finally, Jack has served since 1991 as a member of the board of directors of the Illinois Institute for Continuing Legal Educa-tion, our state's primary source for career-long learning for practitioners. IICLE has never had a more concerned, enthusi-astic, and interested director. Jack's participation has spanned the entire reach of his academic interests from content of pro-grams to techniques for teaching practitioners, ways and means for IICLE to introduce emerging technologies, and the delivery of CLE and the practice of law. In this work as well, Jack has used his affinity for practitioners to nurture effective board rela-tions and to move forward IICLE's agenda and success.
Few of Jack's law school colleagues or students are aware of the full dimensions of the bridge Jack has built between the academy and the practicing bar over the last three decades. But describing what Jack has accomplished in this aspect of his career would hardly be complete with-out mentioning how he has always gone about it. In his case, it's been a consistent, attractive, and engaging mix of enthusiasm for his subjects- mostly sections of the Internal Revenue Code-and enthusiasm for the CLE project at hand. Even during times of great personal challenge, pressing concerns for family members, or College of Law matters, Jack is always Jack-always glad to hear from you, always communicative, al-ways interested in your concerns, and always available as long as you need him for advice, assistance, or simply as a sounding board.
I happen to think that the integration-or at least the close working together-of the legal academy and the practicing bar has been too long neglected, to the detriment of each. Law professors could serve their stu-dents and their institutions more effectively if they were in touch with practitioners on a regular basis through CLE or bar association activity. Practitioners need academic infusions and exposures throughout their careers, whether mandated or not. That most practitioners and law fac-ulty operate in wholly separate realms is an unfortunate and costly loss to our profession. Jack McCord, in his own very consistent and enthusiastic ways, has built at least one bridge that has nurtured productive personal relationships and solid achievements connecting those realms over sev-eral decades.
The best tribute any of us-CLE administrators, practitioners, or law professors-could make to Jack upon his retirement is to maintain the bridge he has created and to broaden it wherever possible for the good of the whole profession and the public.
* Associate Professor of Law, Chapman University School of Law. B.A., Stanford University. J.D., UCLA School of Law.
Executive Director, Illinois Institute for Continuing Legal Education.
Professor John H. McCord: A Marvelous Human Being
Ora Fred Harris, Jr. | 2000 U. Ill. L. Rev.
Some individuals are imbued with much goodness; more impor-tantly, some individuals are benefited enormously by such human beings. Indeed, Jack H. McCord (hereinafter "Jack") is infused with such virtue; and, to be sure, I am a grateful beneficiary. In fact, when I reflect upon Jack from time to time, I am reminded of the following:
Put on therefore, as the elect of God, holy and beloved, bow-els of mercies, kindness, humbleness of mind, meekness, longsuffer-ing . . . . . . . .
And above all these things put on charity, which is the bond of perfectness.
In view of these inspiring words, I make this heartfelt tribute to Jack.
* Professor of Law, University of Illinois.
Tribute to Professor John McCord
The Honorable David Laro | 2000 U. Ill. L. Rev.
Jack McCord and I began our academic experiences at the Univer-sity of Illinois College of Law at about the same time, 1964, albeit for dif-ferent purposes. Jack was there as a beginning legal writing instructor, and I was a first-year law student. I suspect that we both were equally apprehensive. Jack became Professor McCord the next year, and from that time until his recent retirement, he distinguished himself in acade-mia in a multitude of ways. After my graduation from law school in 1967, I did not have occasion to see Jack often, but I surely was aware of his continuous accomplishments in the field of law.
Certainly, one immediately must be impressed with Jack's breadth of knowledge of tax law. His teaching included courses in corporate and partnership taxation, estate and gift taxation, decedents' estates and trusts, estate planning and business planning, corporations, and profes-sional responsibility. Teaching each of these courses was a major aca-demic challenge in itself. When his courses are viewed in their entirety, one must stand in awe of Jack's ability to master difficult and complex subject matter and then convey that knowledge in a clear and compre-hensive manner in his teachings. Law students are known for being bright and knowledge-thirsty individuals with an ability to ask difficult questions. Jack, as well as his colleagues, consistently prepared well for each and every class. One can only imagine the endless hours of time he spent preparing for his various classes and personally interfacing with his students. Moreover, tax law is extremely dynamic, and it changes dra-matically with each new tax law Congress passes. Thus, teaching tax law is a task of huge dimension. Yet Jack always made it look easy. As a par-allel, I would ask that you take a look at a professional golfer as he swings a driver. It almost looks easy to the casual observer. Experienced players know how physically challenging it really is to hit the ball cor-rectly so that it lands where you expect. So, too, Jack's friends and col-leagues definitely knew how accomplished he was as a teacher and how "easy" he made professional teaching appear.
Jack's academic career was not limited to teaching alone. He is a widely known and esteemed writer who also authored, co-authored, or edited fourteen books, including Deskbook for Estate Planners; Buying, Selling, and Merging Businesses; Estate and Gift Taxes; and Estate and Gift Tax Reform. To author a single book is a significant achievement considering the time demands of teaching and other career involvements. To author, co-author, or edit fourteen books over the course of one's ca-reer is simply remarkable. Jack's writings, however, go well beyond being prolific. His accomplishments are indeed not measured by numbers alone. One immediately recognizes the magnitude of his thinking and in-tellectual ability when Jack's writings are examined in detail. Upon close and systematic review, one senses the clear and thoughtful approach with which he parses every detail and nuance.
Professor McCord's accomplishments extend far beyond teaching and writing. He also served as associate dean for academic affairs of the law school. In addition, he is still actively involved in the school's con-tinuing legal education.
I was privileged to return to the College of Law in 1997 to partici-pate in the rededication of the University of Illinois College of Law building. To be sure, the law school is today a vigorous college, providing law students with a vital and valuable education. The teachers there are an exceptional group of truly dedicated, bright, and prestigious members of the legal community. Teachers have the ability to inspire their stu-dents, as well as peak their interests. Jack McCord stands out as a vivid example of the superb teacher who is always compassionate, supportive, helpful, and extremely insightful. Recently, I was holding a session of the United States tax court in St. Louis. Never one to miss an opportune moment, Jack brought interested students to the session to observe and learn. He even persuaded me to give some of his students an interview with respect to the possibilities of clerking at the court.
One can measure another by what he or she has been able to achieve. By this standard, Professor McCord surely deserves the very highest tribute. He can also be seen on another level as well, that of hu-manitarian extraordinaire. He is a patient man, a quality listener, and an extremely kind person. His students were always able to have his undi-vided attention at any time it was needed. He never shied away from as-sisting his students in their learning, regardless of the time commitment on his behalf. He truly inspired them each day and was exemplary in his style. The College of Law and all of its students, including alums and staff, are indebted to Jack for his contributions, his caring, and his teach-ing.
I was appointed to the United States tax court in 1992. Since serving as a federal judge, I have had the opportunity to observe lawyers in scores of proceedings. The importance of well-educated and expertly trained lawyers cannot be understated. One, therefore, appreciates all the more the task and critical nature of the role of law professors in the education of future lawyers. With certainty, Jack McCord may enjoy his well-earned retirement knowing that he has made his mark in the field of legal education. There are many practicing lawyers today, including ac-tive judges, who have a deep sense of gratitude for the part that Jack McCord contributed to their education. His importance will remain ines-timable.
* Judge, United States Tax Court.
My First-Grade Teacher
Jeffrey G. Sherman | 2000 U. Ill. L. Rev.
John McCord and I had the same first-grade teacher. We made this momentous discovery shortly after my arrival in Champaign as a fledg-ling law professor late in the bicentennial summer of 1976, and he and I often acknowledged our debt to the gifted woman who had inaugurated our educations. She taught us reading by the old-fashioned phonetic method, which assured that we'd never mistake thorough for through, and she taught arithmetic with a supreme confidence in the dependability of numbers. John and I also remarked on the overwhelming importance and enduring influence of first-grade teachers, and whenever I pair a noun with a verb or add two and two today, Miss Hedland must get the credit.
In the school of law pedagogy, John McCord was my first-grade teacher. Surely I had beginner's luck. From John I learned not only how to fashion problems for in-class use but also how to deploy them effec-tively as a teaching device. John possesses an extraordinary facility for crafting problems. In the book of estate and gift tax problems he wrote with Robert Kramer, for example, although some of the problems offer enough baroque difficulties to challenge even the experts, most are plain but ingenious and presented in the perfect order to enable the student gradually to grasp the basics as well as the intricacies of the law.
John is also a superb writer of legal prose; his style is clear and graceful. If ever I am attempting to forge a sentence explaining a particu-lar point of law, and I happen upon a sentence by John explaining that same point, his wording is so natural and inevitable that it drives all other possible wordings from my head. My wisest course is simply to quote him openly.
And John is the most generous of colleagues. Within two months of my arrival in Champaign, Congress enacted the Tax Reform Act of 1976, which completely changed the estate and gift tax system that I had stud-ied in law school and applied in practice. The statute also added several new horrors to the Internal Revenue Code (a generation-shipping trans-fer tax, the orphan's deduction, and carryover basis on death), which, al-though they were eventually repealed or replaced, seemed at the time to be permanent, appalling additions. I was assigned to teach estate plan-ning starting in January 1977, and the thought that during my first pro-fessorial year I was going to teach students about a new tax system that I had studied for only three months was daunting indeed. But John rose to the new Act's challenges with such blithe resolve that his self-assurance was contagious, and after some midnight oil on my own and a lot of con-versations with John about what this brave new tax system was all about, I felt ready. I should mention that only months after the statute's enact-ment, John published what to me was the definitive text explaining the statute's transfer tax provisions-a text so perceptive and comprehensive that I was persuaded he had mastered the secrets of time travel and had known about the 1976 Act since 1970.
I shall always be grateful to John McCord. And whenever I'm able in class to improvise a numerical example that transforms the expressions on my students' faces from frustrated bafflement to relieved comprehen-sion, my students (unbeknownst to themselves) are grateful to John McCord, too.
* Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology.
Characteristics of Soulless Persons: The Applicability of the Character Evidence Rule to Corporations
Susanna M. Kim | 2000 U. Ill. L. Rev.
Under Federal Rule of Evidence 404, the character evidence rule, it is well established that evidence of character generally is not admissible to show that a person acted in conformity with that charac-ter on a particular occasion. No consensus exists, however, as to whether the character evidence rule should also apply to corpora-tions.
In this article, Professor Kim argues that the ban on character evidence should not be extended to corporations. Professor Kim be-gins with a discussion of various rationales offered to support the character evidence rule, emphasizing Kantian conceptions of human autonomy. She then examines varying definitions of "character" and concludes that character may best be regarded as a reflection of the internal operating system of the human organism. Next, Professor Kim turns to an analysis of the personhood of corporations and de-termines that corporations are persons and moral actors with the ca-pacity to possess character. This corporate character is separate and apart from the character of the corporation's individual members and reflects the internal operating system of the corporate organization.
Finally, Professor Kim suggests that the human autonomy ra-tionale for the character evidence rule does not apply with equal force to corporations. She then concludes with an examination of the prac-tical implications of excluding corporations from the protections af-forded individuals under Rule 404.
* Associate Professor of Law, Chapman University School of Law. B.A., Stanford University. J.D., UCLA School of Law.
Enhancing the Spectrum: Media Power, Democracy, and the Marketplace of Ideas
Ronald J. Krotoszynski, Jr. & A. Richard M. Blaiklock | 2000 U. Ill. L. Rev.
In their article, Professor Krotoszynski and Mr. Blaiklock assess diversity and broadcast media regulation in contemporary America. First, the authors consider the Federal Communications Commis-sion's regulatory attempts to promote diversity in television and radio broadcasting. The authors discuss the Commission's difficulties in de-fining and characterizing "diversity" and further note some of the in-consistencies inherent in the Commission's dual emphasis on compe-tition and diversity in broadcast programming, also mentioning the threat to democratic values posed by unduly concentrated media ownership. Next, the authors chronicle the burgeoning judicial hostil-ity to race-conscious governmental policies and practices. They dis-cuss the related shift from intermediate scrutiny to strict scrutiny in equal protection jurisprudence and the Commission's frantic efforts to provide justifications for its increasingly endangered race-based di-versity regulations. The authors also examine the need for diversity in programming, both arguing that structural diversity among broadcast media outlets presents the best means of securing ideologically diverse programming and responding to potential objections to structural regulations aimed at securing such diversity. Finally, the authors elaborate on how such structural media regulations do not raise seri-ous equal protection problems and conclude with a reminder that a healthy democracy depends upon a myriad of voices.
* Associate Professor of Law, Washington and Lee University School of Law.
** Associate, Ice Miller. B.A., Hanover College; J.D., Indiana University School of Law-Indianapolis. The views expressed in this article are those of Mr. Blaiklock and not those of his employer.
Disability and the Law of Welfare: A Post-Integrationist Examination
Mark C. Weber | 2000 U. Ill. L. Rev.
Recent years have seen dramatic changes in the way persons with disabilities are treated by the government. Current programs, however, still fail to adequately meet the needs of such individuals.
In this article, Professor Weber explores the law of welfare relat-ing to persons with disabilities and examines developments in disabil-ity theory. He contrasts discrimination law with welfare law and com-pares three theories of disability equality-custodialism, integrationism, and post-integrationism-critiquing integration the-ory and developing a framework for a new theory. Professor Weber explores existing welfare programs and then concludes by proposing nine reforms, that all take into account post-integrationist insights and share the goal of shifting the costs of disability from persons who are disabled to the population as a whole.
* Professor of Law, DePaul University. B.A. 1975, Columbia; J.D. 1978, Yale.
Ethical Responsibilities and the International Lawyer: Mind the Gaps
Lauren R. Frank | 2000 U. Ill. L. Rev.
As more American lawyers are practicing abroad, the result of a growing global market, additional ethical questions are presented. More specifically, attorneys' responsibilities have changed: in addi-tion to knowing the law, transnational attorneys must also understand the cultures, traditions, and languages of the foreign societies in which they practice. Also crucial is an understanding of foreign codes of professional conduct, which can differ markedly from the American Bar Association's Model Rules used in the United States.
In this student note, the author details relevant provisions of the Model Code, then compares them both to the codes of selected Euro-pean countries and, more broadly, to a multinational code the Euro-pean Community has fashioned. Important differences in areas such as conflicts of interest and attorney-client privilege are illustrated.
Finally, the author proposes that American attorneys working abroad undergo a formal certification process to ensure their profi-ciency and understanding of these ethical issues. Suggestions for both law students and practicing attorneys are offered.
While You Were Sleeping or Addicted: A Suggested Expansion of the Automatism Doctrine to Include an Addiction Defense
Emily Grant | 2000 U. Ill. L. Rev.
The automatism doctrine stems from the basic principle that a criminal act must be voluntary. Because an act is considered involun-tary if it occurs while the actor is in a state of unconsciousness, the automatism doctrine provides a defense to crimes committed while sleepwalking. This note takes the position that drug and alcohol ad-dictions result in what should be recognized as a similar lack of vol-untary control.
After discussing general theories behind the automatism doctrine and its relevance to crimes committed while sleepwalking, the author of this note considers current medical theories regarding drug and al-cohol addiction. Because both the medical profession and the Su-preme Court recognize drug and alcohol addiction as a disease, the author argues that addicts should not be punished for committing acts inherently associated with their addictions. She provides several pol-icy justifications for her proposal and concludes that courts should extend the automatism doctrine to include an addiction defense.
Empowering Schools to Search: The Effect of Growing Drug and Violence Concerns on American Schools
J. Bates McIntyre | 2000 U. Ill. L. Rev.
America's public schools are facing a crisis of violence and drug problems. In particular, several recent high-profile school shootings have provided a wake-up call to school administrators and state legis-lators across the country. Schools are responding to increased school violence and drug use with a variety of preemptive security measures designed to ensure that American schools remain a safe place for children.
This student note evaluates these school measures in the context of students' Fourth Amendment rights. Although many states have enacted statutes empowering school boards to search students, the constitutionality of such searches remains unclear. Student searches are typically justified as consistent with a lower expectation of privacy for students, valid under an implied consent rationale, or accepted as a standard automobile search. The author questions the applicability of these justifications to schools, suggesting that they not only give schools unnecessarily broad authority but also send a message of dis-trust and lack of individual rights to students.
The author proposes that differences among communities make it imperative that states give educators latitude to respond to their spe-cific problems rather than create overbroad mandates. In this way, legislators and school administrators can create an atmosphere more conducive to learning and not teach the wrong lesson by depriving students of their constitutionally protected rights.
Shareholders' Right to Review the Adoption and Continuation of a Takeover Defense Plan: Is the Fleming Decision Dead on Arrival?
David W. Ware | 2000 U. Ill. L. Rev.
In this note, the author examines the rights of shareholders to re-view actions of the board of directors in matters of corporate govern-ance. Over the last few decades, the traditional duties of the board of directors to manage corporate affairs have been challenged as share-holders become more active and unified. A recent corporate govern-ance case in Oklahoma, International Brotherhood of Teamsters v. Fleming Cos., finally has addressed the balance of the corporate rights and duties between the board and the activist shareholders. The decision increased the range of shareholder power in the takeover context, holding that shareholders have the right to review and force the redemption of a corporation's poison pill.
The author contends that for Fleming to have a serious effect on corporate law, other state courts, and more specifically, Delaware state courts, must adopt a similar analysis. The author, however, finds this occurrence unlikely and believes that the Fleming court failed to analyze the issues correctly.
To comprehend the problem underlying the Fleming decision, the author analyzes the traditional corporate model and the develop-ment of the board of directors' duties in the takeover context. More-over, he looks to both traditional Delaware precedents and recent Delaware case law to support his contention. The author proposes that instead of adopting decisions like Fleming, courts should recog-nize the preclusive effects of multiple takeover defenses and attempt to mitigate them accordingly to deter board entrenchment.
Weathering Constitutional Change
Mark R. Brown | 2000 U. Ill. L. Rev.
The problem of sovereign immunity is of great concern to today’s legal scholars. Recently, constitutional scholars have begun to analyze the effect of the Eleventh Amendment and sovereign immunity on constitutional change. In his most recent article on the subject, Professor Mark Brown responds to Professor John Jeffries’s support for the Supreme Court’s recent immunity jurisprudence.
His response takes two distinct shapes. First, Professor Brown argues that rather than providing structural advantages, fostering the development of constitutional law, and protecting state treasuries, sovereign immunity suppresses constitutional filings, thereby retarding the growth of constitutional law. He further argues that even if immunity does bring about constitutional change, it is impossible to know its quality and quantity. After developing this argument, Professor Brown attempts to answer the question: What role do immunities serve? Noting that immunities contradict the principles of fairness and reliance, Professor Brown concludes that immunities serve neither as a catalyst for constitutional change nor as an accurate predictor of society’s expectations.
* Professor of Law, Stetson University.
Implied Limits on the Legislative Power: The Intellectual Property Clause as an Absolute Constraint on Congress
Paul J. Heald & Suzanna Sherry | 2000 U. Ill. L. Rev.
Professors Heald and Sherry argue that the language of Article I, Section 8, Clause 8, the Intellectual Property Clause, absolutely constrains Congress’s legislative power under certain circumstances. Their analysis begins by looking at other limits on the legislative power that the Court has found in the Bankruptcy Clause, the Eleventh Amendment, the Tenth Amendment, and Article III. Then by examining the history and structure of the Intellectual Property Clause and relevant precedent, they distill four principles of constitutional weight-the Suspect Grant Principle, the Quid Pro Quo Principle, the Authorship Principle, and the Public Domain Principle. These principles inform the Court’s jurisprudence in cases involving the Intellectual Property Clause, acting as implied and absolute limits on Congress’s exercise of its legislative power. Finally, Professors Heald and Sherry apply these principles to recent pieces of legislation and evaluate the constitutionality of several proposed and recently enacted laws.
* Allen Post Professor of Law, University of Georgia.
** Cal Turner Professor of Law and Leadership, Vanderbilt University.
The Evil That Men Do: Perverting Justice to Punish Perverts
Grant H. Morris | 2000 U. Ill. L. Rev.
As a society, we are revolted at repeated, sexual, violent conduct perpetrated against women and children. States enacted sexual psychopath legislation years ago to address the problem. That answer proved inadequate and was abandoned. But the problem persists. Within the last decade, states began enacting sexually violent predator (SVP) legislation as a new, and politically popular, solution. Typically, after an individual identifiable as an SVP serves a criminal sentence, he is subjected to civil commitment and detained indefinitely. In Kansas v. Hendricks, 521 U.S. 346 (1997), by the narrowest of margins, the Supreme Court upheld the Kansas SVP statute against several constitutional attacks. With this Supreme Court imprimatur, SVP legislation has become the wave of the present.
Many scholars have asserted that the Supreme Court wrongly decided Hendricks and that SVP legislation is unconstitutional. Professor Morris reviews their arguments and concludes that after Hendricks, they are not likely to succeed. Professor Morris notes, however, that the Supreme Court did not consider an equal protection attack on SVP legislation. He explains why an equal protection challenge claiming that SVPs are similarly situated with other civilly committed patients is likely to fail. Nevertheless, Professor Morris asserts that a properly framed equal protection claim could and should succeed. He explains why, based on other Supreme Court decisions, SVP legislation impermissibly discriminates against sentence-expiring convicts, incompetent criminal defendants, and nondangerous insanity acquittees by exempting from SVP commitment other individuals who are equally mentally disordered and dangerous.
* Professor of Law, University of San Diego School of Law; Clinical Professor, Department of Psychiatry, School of Medicine, University of California, San Diego.
The Virtues of “Command and Control” Regulation: Barring Exotic Species from Aquatic Ecosystems
Sandra B. Zellmer | 2000 U. Ill. L. Rev.
The Clean Water Act asserts the ambitious goal of eliminating water pollution and protecting the chemical, physical, and biological integrity of U.S. waters. Yet the EPA, in enforcing the Act, currently exempts from regulation a significant source of pollution in U.S. waters: ballast-water discharges from commercial shipping vessels. Ballast water from commercial vessels is a primary vector for the introduction of exotic plant and animal species into U.S. waters. The invasion of these species poses an increasing threat to native biodiversity; the invaders prey directly on native fish and wildlife, compete for food and habitat, and introduce disease and parasites into commercial waterways. Given the severe economic and ecological consequences associated with exotic species, the lack of regulatory mandates is a critical omission in U.S. environmental law.
Ongoing debates on environmental regulation focus on the appropriate form for pollution restrictions. Specifically, the debates center on whether the use of economic tools, such as subsidies or taxation, or regulation under technology-based permit regimes is more effective in reducing pollution levels. In this article, Professor Zellmer suggests that regulation of ballast-water discharges under the Clean Water Act (CWA) would significantly reduce exotic invasions in U.S. aquatic ecosystems and is preferable to economic approaches. The article argues that the current regulatory exemption for ballast-water discharges is inconsistent with the plain language of the CWA. It outlines the advantages of a regulatory program and addresses the practical implications of implementing the CWA permit system in the context of ballast-water discharges.
* Associate Professor, University of Toledo College of Law. LL.M., George Washington National Law Center; J.D., University of South Dakota; B.S., Morningside College.
Book Review Essay
Pats for Pat
Jeffrey O’Connell & Richard F. Bland | 2000 U. Ill. L. Rev.
Book Review: Daniel Patrick Moynihan: The Intellectual in Public Life edited by Robert A. Katzmann (Baltimore: The Johns Hopkins University Press, 1998)
* Samuel H. McCoy II, Professor of Law, University of Virginia. B.A. 1951, Dartmouth College; J.D. 1954, Harvard University.
Eradicating the “Discharge by Declaration” for Student Loan Debt in Chapter 13
Kevin C. Driscoll | 2000 U. Ill. L. Rev.
The many benefits of higher education come with a cost. Armed with knowledge financed by government-backed loans, today’s students enter the workforce burdened by debt. For many, other debts follow, causing some students to file bankruptcy soon after graduation. In this note, Kevin Driscoll examines the viability of the “discharge by declaration”-a tactic used by bankruptcy lawyers to circumvent the adversarial process and obtain a discharge of student loan debt. Despite the apparent problems with this tactic, a majority of courts decline to review the propriety of a discharge obtained through such means. In upholding such discharges, the courts claim that creditors’ due process rights are satisfied, and they cite res judicata and collateral estoppel as excuses. Examining the various rationales underlying the majority stance, this note questions whether the discharge by declaration is a legally, and ethically, sound method of obtaining relief for overburdened student debtors.
* J.D. 2000, University of Illinois at Urbana-Champaign; A.B. 1992, University of Illinois at Urbana-Champaign; member University of Illinois Law Review, 1999-2000.
Expanding the Tripartite Relationship: Extending Evidentiary Privilege to Fourth-Party Legal Audits
John P. Killacky | 2000 U. Ill. L. Rev.
Legal auditing is one of the fastest growing trends in the legal profession. Due to widely publicized abuses of the legal profession’s hourly billing system and increased pressure on insurance companies to cut costs, the growth of this cottage industry noticeably affected the insurance defense industry. This note advocates extending an evidentiary privilege to information that insurers provide to the legal auditors hired to scrutinize the bills of retained defense counsel.
This note begins by outlining the origins, the nature and scope of legal auditing, and the tripartite relationship that exists between the insurer, the insured, and the legal auditor. After a thorough analysis of the policies that surround evidentiary privileges, the author assesses possible privilege models to address the concern that legal auditing waives the privilege that exists between the attorney and the client. The author recognizes that a distinction exists between insurers who choose to outsource the legal-auditing function and insurers who perform the auditing function themselves. In order to allow attorneys and insureds to maintain the type of relationship that most lawyers and clients have, the author proposes that an evidentiary privilege to fourth-party legal auditors be recognized.
Thwarting the Stalker: Are Anti-Stalking Measures Keeping Pace with Today’s Stalker?
Amy C. Radosevich | 2000 U. Ill. L. Rev.
This note examines the ways in which stalkers can utilize technology, not only to pursue their victim, but also to evade the law. Although stalking behavior is prevalent throughout history, the Internet provides a new way in which to access the personal lives of potential victims. The author argues that the law must be vigilant in finding appropriate remedies for victims of the technologically savvy stalker.
Beginning with an historical overview of stalking, the author details the various types of stalkers and their typical behavior. Not only has traditional stalking been on the rise, so too has electronic stalking. The early 1990s saw the first state anti-stalking statutes and a federal initiative for the creation of a model anti-stalking law. Despite the advances in legislation, the enacted legislation fails to keep pace with technology. Meanwhile, technological innovations threaten to increase the occurrence and intensity of stalking.
The author proposes collaboration amongst federal, state, and local officials to outthink today’s stalker. First, law enforcement officials must become familiar with the remedies already available to victims of stalking and create cyber-crime task forces. States should review their existing anti-stalking legislation to determine whether the statute addresses cyberstalking and amend laws that do not. Communities can also utilize emerging technology to target specific stalkers as well as stalking behavior in general. Finally, the public must be made aware of cyberstalking, its dangers, and the means to protect themselves and their communities.