Volume 2001Masthead PDF
David C. Baum Memorial Lectures on Civil Liberties and Civil Rights
Family Law in the Secular State and Restrictions on Same-Sex Marriage: Two Are Better Than One
Mary Becker | 2001 U. Ill. L. Rev. 1
For thousands of years, western society has defined marriage as the union of a man and a woman, and courts in the United States have relied on this definition in decisions denying same-sex couples the right to legally marry. In the following article, originally presented as part of the University of Illinois College of Law David C. Baum Memorial Lecture Series on Civil Liberties and Civil Rights, Professor Mary Becker questions the notion that marriage is necessarily limited to heterosexual relationships.
Professor Becker examines the origins of our marriage tradition, from the pre-Christian cultures of Israel, Greece, and Rome through the medieval Canon law of the Roman Catholic Church to the modern-day United States, in order to show that, despite some differences, marriage in western cultures has been a patriarchal institution centered around the needs or obsessions of men, with the underlying purpose of reproduction. Using empirical data, she then explores the real good in marriage-what we now know about the connection between marriage and human well-being-to assert that the primary good of marriage is the "pair-bond," an intimate human connection that transcends gender and procreation. Professor Becker details how, for many individuals, their best chance of a successful pair-bond is with a same-sex partner. She recommends that government, in its regulation of marriage, should promote a model that has as its ultimate purpose the furthering of human happiness and well-being, recognizing that two are better than one. Such a model, Professor Becker concludes, would provide for the legal recognition of same-sex marriage.
*Professor of Law at DePaul University College of Law.
Symposium: Intellectual Property Challenges in the Next Century
Foreword: Intellectual Property Challenges in the Next Century
Jay P. Kesan & Thomas S. Ulen | 2001 U. Ill. L. Rev. 57
Foreword: Intellectual Property Challenges in the Next Century
*Assistant Professor, College of Law and the Institute of Government and Public Affairs, University of Illinois. Ph.D., University of Texas at Austin; J.D., Georgetown University
**Alumni Distinguished Professor, College of Law and the Institute of Government and Public Affairs. Ph.D. (Economics), Stanford University.
Challenges for Intellectual Property Law in the Twenty-First Century: Indeterminacy and Other Problems
S. Jay Plager | 2001 U. Ill. L. Rev. 69
In this article, adapted from his symposium keynote speech, Judge Plager examines the challenges confronting patent law in the new century. Positing predictability and clarity as essential ingredients of an effective system of legal rules, Judge Plager discusses the indeterminacy present in the practice and procedure of today's patent law system. He points first to the patent document itself, written in a language foreign to most judges and a source of misunderstandings in patent-claim interpretation. He then discusses the doctrine of equivalents and the difficulty in effectively applying this doctrine to protect patentees while simultaneously reducing the indeterminacy that results from subjective, insubstantial-difference determinations.
Judge Plager examines the challenges faced by participants in the patent system, including the inventors, the Patent and Trademark Office, the market competitors, the professional advisors and patent lawyers, and finally the judges and courts hearing patent cases. Judge Plager discusses the burden on trial courts due substantially to a lack of expertise in the complex area of patent law. He then describes the role of the Federal Circuit, which has exclusive jurisdiction for appeals from the district courts, weaving in interesting points from his knowledge and personal experiences. Throughout the article, Judge Plager offers insight about possible structural changes that could ad-dress the indeterminacy confronting patent law.
*Circuit Judge, United States Court of Appeals for the Federal Circuit, Washington D.C. (appointed 1989); A.B. 1952, University of North Carolina at Chapel Hill; J.D. 1958, University of Florida; LL.M. 1961, Columbia Law School; Professor of Law, University of Florida (1958-64), University of Illinois (1964-77), University of Wisconsin (1967-68), Cambridge University (1980), Indiana University (1977-89); Dean and Professor of Law, Indiana University (1977-84); Counselor to the Under Secretary of the U.S. Department of Health and Human Services (1986-87); Associate Director of the Office of Management and Budget, then Administrator of the Office of Information and Regulatory Affairs, Executive Office of the President of the United States (1987-89).
The Public Display Right: The Copyright Act's Neglected Solution to the Controversy over RAM "Copies"
R. Anthony Reese | 2001 U. Ill. L. Rev. 83
Although the public display right has not played a significant role in copyright law to date, in this article Professor Reese proposes that this role should become increasingly important in light of rapid computer technology advancements and the emergence of transmissions over digital-computer networks. First, Professor Reese examines the statutory text of the display right as granted by the 1976 Copyright Act, providing specific examples that illustrate the type of control the display right gives copyright owners over transmissions of their texts and images. He explores the legislative history surrounding the public display right and concludes that the drafters of the 1976 Act principally intended the right to address transmissions over computer networks. Professor Reese considers the relationship between the display right and the traditional reproduction right prior to the digitally networked era, recognizing and discussing reasons why the public display right has rarely been implicated in television transmissions. He then presents various strategic uses of the public display right for copyright owners, emphasizing its importance as a complement to the better-established reproduction right. Professor Reese moves on to explore why the display right holds even greater strategic value in the context of transmissions of works over digital computer networks. He analyzes the use of the display right, specifically in comparison to the distribution right and the "RAM copy" doctrine. Ultimately, Professor Reese concludes that the display right is a superior alternative for copyright owners, and courts, to control transmissions of copyrighted work over computer networks.
*Assistant Professor, School of Law, The University of Texas at Austin. B.A., Yale University; J.D., Stanford Law School.
Preserving Personality and Reputational Interests of Constructed Personas Through Moral Rights: A Blueprint for the Twenty-First Century
Roberta Rosenthal Kwall | 2001 U. Ill. L. Rev. 151
In an age where every man and woman has fifteen minutes of fame, Professor Kwall examines ways in which American law should protect celebrities against unwarranted commercial exploitation. She argues that the doctrine of moral rights could be extended to constructed personas to protect the reputational and personality interests of celebrities. As other countries and international treaties move in this direction, Professor Kwall suggests that the United States should examine offering such protection to American personas.
Looking first to the similarities between moral rights and publicity rights, Professor Kwall highlights the advantages of protecting personality and reputational interests through copyright's moral-rights provision. Such an approach would be constitutionally sound, because a constructed persona falls within the definition of "a writing" as the term is used in the Constitution's Copyright Clause. She argues that a constructed persona is an original work of authorship that is sufficiently tangible to be afforded copyright protection. By protecting constructed personas in this way, people whose livelihoods depend on the preservation and integrity of their personas will be protected. Also, because the limiting doctrines of copyright law would be applied to the protection of constructed personas under moral-rights law, issues of free speech and societal access can be considered in connection with damage to the personal interests of the persona.
*Raymond P. Niro Professor of Intellectual Property Law, Director, DePaul College of Law Center for Intellectual Property. A.B., Brown University; J.D., The University of Pennsylvania.
The Information Revolution Reaches Pharmaceuticals: Balancing Innovation Incentives, Cost, and Access in the Post-Genomics Era
Arti K. Rai | 2001 U. Ill. L. Rev. 173
Recent development in genomics-the science that lies at the intersection of information technology and biotechnology-have ushered in a new era of pharmaceutical innovation. Professor Rai advances a theory of pharmaceutical development and allocation that takes account of these recent developments from the perspective of both patent law and health law-that is, from both the production side and the consumption side. She argues that genomics has the potential to make reforms that increase access to prescription drugs not only more necessary as a matter of equity but also more feasible as a matter of innovation policy. On the production end, so long as patent rights in upstream genomics research do not create transaction cost bottlenecks, genomics should, in the not-too-distant future, yield some reduction in drug research and development costs. If these cost reductions are realized, it may be possible to scale back certain features of the pharmaceutical patent regime that cause patent protection for pharmaceuticals to be significantly stronger than patent protection for other innovation. On the consumption side, genomics should make drug therapy even more important in treating illness. This reality, coupled with empirical data revealing that cost and access problems are particularly severe for those individuals who are not able to secure favorable price discrimination through insurance, militates in favor of government subsidies for such insurance. As contrasted with patent buyouts, the approach favored by many patent scholars, subsidies would take account of, and indeed capitalize on, the institutional realities of health care consumption. These subsidies should, however, be linked to insurance regulation that works to channel innovation in a cost-effective direction by requiring coverage of drugs that provide significant benefit relative to their cost.
*Associate Professor of Law, University of San Diego Law School; Visiting Associate Professor, Washington University, St. Louis Law School (Spring 2001).
On Trademarks, Domain Names, and Internal Auctions
Gideon Parchomovsky | 2001 U. Ill. L. Rev. 211
The first-in-time priority rule for appropriation of domain names has deprived various established businesses of the ability to use their valuable trademarks as their domain names. Many firms have seen their trademarks registered as domain names by "cybersquatters"-individuals who register famous marks for the purpose of re-selling them at a higher price to their owners-while others have watched smaller businesses win the registration race. The inability of established firms to use their trademark as their domain name imposes high costs not only on the firms, but also on Internet users who are forced to bear higher search costs when transacting on-line.
Two legal solutions have emerged in response to this problem. In 1999, Congress enacted the Anticybersquatting Consumer Protection Act, establishing a new cause of action against cybersquatting. In addition, the International Corporation for Assigned Names and Numbers (ICANN)-the entity responsible for assigning domain names-has instituted rules for arbitration of domain name disputes. Central to both solutions is the "good-faith" standard: if the domain-name registrant acted in good faith, she should retain the domain name.
In this essay, Professor Parchomovsky argues that neither solution provides an adequate mechanism for resolving disputes over domain names. Both solutions are unnecessarily expensive and time-consuming, and neither guarantees the efficient allocation of domain names. A superior solution would be an asymmetric internal auction system to resolve domain-name disputes. The auction mechanism would ensure that the disputed domain-name ends up in the hands of its highest value user, while granting just compensation to the other party. Furthermore, it accomplishes this result instantaneously and at negligible cost.
*Associate Professor, Fordham University School of Law.
Legal Implications of Open-Source Software
David McGowan | 2001 U. Ill. L. Rev. 241
The proliferation of computer technology and the advent of the Internet have created many new relationships and problems that raise questions about traditional legal and economic princi-ples. The development of "open-source" or "free" software is an example of this phenomenon. Unlike the traditional producers of computer software-Microsoft, for example-open-source software is often developed by computer programmers from all over the world, each submitting contributions to the code, and distributed without charge or for a minimal fee. Open-source software is generally passed from programmer to programmer, with the understanding that improvements may be made, but that the improvements must be distributed freely, without any attempt to "privatize" the program.
The existence of such relationships among programmers raise several interesting questions. First, how do large-scale open-source projects come into being? One open-source project, the GNU/Linux operating system, even threatens the market share of Microsoft's operating systems-a feat that calls traditional economic theories on the operation of the firm into question. A more important question is whether the open-source model is sustainable and generalizable. Ultimately, one wonders what role the law will play in the open-source community-a community that seems to operate in the absence of traditional legal principles.
In this article, which was introduced at the University of Illinois College of Law Symposium on Intellectual Property Challenges in the Next Century, Professor McGowan addresses these questions. Using the GNU/Linux operating system as a case study, he probes the organization of the open-source community and the philosophies of its leading members in order to understand how traditional firm models, intellectual property, and contract law might apply. Professor McGowan concludes by reviewing recent attempts by courts to impose traditional principles in computer software transaction disputes. Ultimately, it appears that the open-source community cannot be neatly categorized. Although many traditional firm theories-such as the formation of a hierarchy-and legal principles-such as copyright-do apply to the open-source model, these theories and principles are employed in creative ways not previously envisioned.
*Associate Professor of Law, University of Minnesota Law School.
Collusion and Collective Action in the Patent System: A Proposal for Patent Bounties
John R. Thomas | 2001 U. Ill. L. Rev. 305
Persistent commentary contends that the Patent Office is issuing patents that appropriate public domain concepts at an alarming frequency. Complaints of low patent quality enjoy growing resonance with regard to business methods, computer software, and other inventions for which patents were not traditionally sought. In this article, Professor Jay Thomas explains how the judiciary's lenient view of patentable subject matter and utility standards, along with miserly congressional funding policies, have rendered the Patent Office an increasingly porous agency.
Professor Thomas next reviews existing proposals for improving patent quality, including the conventional wisdom that adoption of an opposition system will contribute meaningfully to the solution of our patent quality problem. Exploring the political economy of patent challenges, Professor Thomas reasons that oppositions do little to solve collective action problems, the possibility of collusion between the prior art holder and patentee, and the existence of the first inventor defense. Professor Thomas instead proposes that the Patent Office recruit members of the public to act as private patent examiners. By awarding prior art informants with a bounty assessed against applicants, the Patent Office can restore order to the patent system and reduce its social costs.
*Associate Professor of Law, George Washington University.
Process Considerations in the Age of Markman and Mantras
Craig Allen Nard | 2001 U. Ill. L. Rev. 355
Professor Nard argues that although notions of uniformity and certainty have always been part of patent law parlance, since the Federal Circuit's decision in Markman v. Westview Instruments, Inc., these noble ends have achieved mantra status. In Markman, the Federal Circuit, in the name of uniformity and certainty, characterized claim interpretation as a question of law subject to de novo review, thus positioning itself as the arbiter of claim meaning. Although Professor Nard disagrees with this characterization and asserts that uniformity and certainty are ill-served by such, he concedes that it is here to stay, at least for the foreseeable future. Therefore, Professor Nard addresses Markman on its own terms. Consequently, to achieve uniformity and certainty in the context of de novo review, he suggests a proposal to encourage the Federal Circuit to accept interlocutory appeals of district court claim interpretations or so-called Markman hearings. According to the proposal, the Supreme Court, pursuant to the Rules Enabling Act, would promulgate a rule specifically permitting or requiring the Federal Circuit to hear an interlocutory appeal of a claim interpretation decision. Professor Nard argues that the Federal Circuit, which has a special duty to promote uniformity and certainty, cannot have it both ways; that is, the court cannot employ a de novo standard of review on the one hand and, on the other hand, refuse to entertain interlocutory appeals. Furthermore, acceptance of interlocutory appeals would foster early certainty and promote settlement negotiations. Consistent with this proposal, he also recommends that a district court, when applicable, apply the doctrine of issue preclusion to its sister courts' claim interpretation decisions. The application of issue preclusion would promote uniformity at the district court level, and coupled with interlocutory review, would promote early certainty.
*Associate Professor of Law, Marquette University Law School.
Patent Law in the Age of the Invisible Supreme Court
Mark D. Janis | 2001 U. Ill. L. Rev. 387
In this article, University of Iowa Law Professor Mark Janis examines "the permanence of the [Supreme] Court's retreat to the peripheries of patent law after the creation of the Federal Circuit," exploring what roles the Supreme Court might imagine for itself in contemporary patent law. Professor Janis first establishes some parameters for Supreme Court decision making in patent cases by analyzing two extremes: an aggressive interventionist model and an extreme noninterventionist model. He then proposes an intermediate, managerial model in which the Court's role centers on an effective allocation of power among institutions of the patent system. The managerial model encourages the Court to impose prudential restrictions on the scope of its own patent opinions and rejects the paradigm of ad hoc, substantive error correction as a serious future role for the Court in patent law.
*Professor of Law, University of Iowa College of Law
An Alert to the Intellectual Property Bar: The Hague Judgments Convention
Rochelle Cooper Dreyfuss | 2001 U. Ill. L. Rev. 421
As communication technology increases at an ever-faster pace, multinational civil litigation becomes increasingly complex, especially in the intellectual property fields. Professor Rochelle Dreyfuss suggests that the current international standards for intellectual property protection in the Berne Convention, the Paris Convention, and the TRIPS Agreement are not able to tackle the problems presented. Because these agreements do not establish a uniform law, they do not prevent conflicting outcomes when litigants bring suits in multiple fora. These agreements leave unanswered questions of claim and issue preclusion as well as choice of law rules; and they do not provide for the consolidation of multiple claims.
The proposed Hague Conference on Private International Law Convention on Jurisdiction and the Recognition of Foreign Judgments represents the international litigation community's recent efforts to develop means of streamlining multinational civil litigation and to solve some of the aforementioned problems. Although the Convention is geared toward general civil litigation, and negotiations have apparently stalled, Professor Dreyfuss suggests that it offers a significant hope for the future of multinational intellectual property litigation. Professor Dreyfuss uses the facts from the recent case of Twentieth Century Fox v. iCraveTV, to engage the reader in a hypothetical application of the Hague Convention, exposing the virtues and inadequacies of the proposed Convention as applied to an intellectual property case.
Professor Dreyfuss briefly considers the larger question of whether one nation should be able to adjudicate intellectual property rights of another jurisdiction and decides that the demands of modern technology and law sometimes outweigh the strict territoriality approach that has heretofore governed. Then, drawing from the iCraveTV exercise, Professor Dreyfuss argues that the drafters of the Hague Convention could better address a number of issues important to intellectual property actions. Specifically, she looks at the scope of the Convention as it pertains to registered rights claims, questions regarding nonmonetary relief, and the need for the Convention to more explicitly deal with consolidating multistate litigation. Finally, Professor Dreyfuss suggests that the current draft of the Hague Convention does not sufficiently address the special jurisdictional problems that arise in connection with intangible property rights.
*Professor of Law, New York University, School of Law; and Director, Engelberg Center on Innovation Law and Policy
Intellectual Property Challenges for Developing Countries: An Economic Perspective
Keith E. Maskus | 2001 U. Ill. L. Rev. 457
The global Intellectual Property system currently is undergoing substantial expansion and modernization, largely through implementation of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The TRIPS agreement envisions significantly stronger protection for intellectual property rights, investments in regulatory agencies to enforce these rights, and more consistent regimes of protection across international borders. An important economic question is the likely impact of these changes on developing nations. The issues involved in analyzing the role of intellectual property rights in promoting economic development and growth are extremely complex. Many of the relevant concepts are difficult to measure. Expanded intellectual property regimes also have numerous, often contradictory impacts on a nation's development. Despite these complexities, a growing body of research suggests that stronger intellectual property rights, if properly structured, can increase economic growth and encourage technological development.
Developing nations face an important challenge reconciling intellectual property protection with the global push for more open, procompetitive trade. Professor Maskus has traveled to a number of developing countries and performed extensive economic research on the relationship of intellectual property rights regimes, trade, and economic growth. This article outlines the many issues that complicate this analysis, emphasizing the channels through which strengthened international intellectual property rights can stimulate or limit economic growth. After reviewing the current research, the article concludes that a regime of expanded property right protection holds considerable promise for promoting long-term economic growth and technological innovation among developing nations. Finally, the article provides policy and regulatory recommendations to complement intellectual property protection and curb potential system abuses. This article emphasizes the care that developing nations must exercise in implementing a new intellectual property regime.
*Professor of Economics, University of Colorado, Boulder and Research Associate, Institute for International Economics, Washington, D.C. B.A. 1976, Knox; M.A. 1979; Ph.D. 1981, University of Michigan.
Who Owns the Past in U.S. Museums? An Economic Analysis of Cultural Patrimony Ownership
Sean R. Odendahl | 2001 U. Ill. L. Rev. 475
Throughout history, works of art have been separated from the cultures that created them. Whether through sale, barter, salvage, war, or outright thievery, the artifacts that tell us so much about a culture often lose their cultural attachment and become subject to the whims of private owners.
Yet, most cultural artifacts carry a high subjective value-that attributed to the artifact as part of a cultural patrimony-which reflects the artifact's worth in defining a society or culture. As a result, preserving these artifacts, maintaining their integrity, and ensuring access and distribution are paramount goals.
In this note, Sean Odendahl examines current U.S. law regarding vested rights in cultural artifacts. Characterizing the U.S. view of cultural patrimony rights as a traditional, nationalist approach, he highlights the problems inherent in such an approach. Mr. Odendahl then suggests that an international approach makes more sense, both economically and legally.
Applying the international approach to cultural patrimony law, this note introduces a three-tiered system for determining ownership rights while minimizing costs. Indeed, such an approach is not only efficient, but also satisfies the end-goals of cultural patrimony law: preservation, integrity, and distribution of cultural artifacts. In the end, the nation that most values the artifact gains ownership, provided that it has the means to achieve these goals.
*Member 1999-2001, Editor-in-Chief 2000-01, University of Illinois Law Review; A.B. 1997, J.D. 2001, University of Illinois Urbana-Champaign.
The Logic and Limits of Contract Bankruptcy
Susan Block-Lieb | 2001 U. Ill. L. Rev.
Corporate reorganization under chapter 11 of the Bankruptcy Code is the current focus of heated debates among bankruptcy scholars. Recent commentary is filled with calls from neo-libertarian bankruptcy scholars arguing for the privatization of business insolvency proceedings. These theorists argue that private-law bankruptcy alternatives are preferable to legislation on freedom-of-contract grounds. They emphasize the efficiency of contract-based bankruptcy rules and contend that the shift from public to private rules would substantially reduce enforcement costs. Based on an economic analysis, these commentators argue that federal bankruptcy law is unnecessary and costly and that private contracts, subject only to common-law rules of property and contract, are sufficient to resolve financial common pool problems. Finally, these theorists argue that bankruptcy law should seek to maximize distributions to creditors, but should not seek any redistributive purposes. They criticize current bankruptcy law for improperly incorporating redistributive goals more appropriately addressed through tax laws.
Traditional bankruptcy scholars have criticized these theorists on numerous grounds. They argue that private bankruptcy contracts do not create the appropriate ex ante incentives for the affected parties and permit a redistribution of wealth from weak to strong creditors. Finally, these traditionalists question the claim that private contracts would reduce enforcement costs.
In this article, Professor Block-Lieb argues that current commentary on both sides of the debate fail to address the issue of private action in a meaningful manner. She argues that the choice between mandatory bankruptcy legislation and contract bankruptcy must consider implementation costs and ex post effects as well as ex ante incentives and enforcement costs. The article analyzes the choices among bankruptcy rules in terms of the broad institutional choices they implicate and seeks to refute the neolibertarian contention that private action is preferable to legislation in the context of bankruptcy.
*Professor of Law at Fordham Law School
Calling a Truce in the Marriage Wars
F. H. Buckley & Larry E. Ribstein | 2001 U. Ill. L. Rev.
The definition and attributes of marriage are contested by social conservatives and liberals. Social conservatives consider permanency an important attribute of marriage and want to give couples the option to limit the ability to obtain a divorce. On the other hand, many social liberals want to expand the traditional legal definition of marriage to include homosexual unions. Professors Buckley and Ribstein believe that both of these groups can achieve part of their goals through a compromise based on jurisdictional choice and enforcement of contract. They propose that states enforce the contractual aspects of sister states' marriage law. As Professors Buckley and Ribstein show, this approach benefits society by accommodating competing views, widening the acceptance of various rules within each jurisdiction, and per-mitting states to offer a variety of marriage rules.
*Professor of Law at George Mason University School of Law
**Professor of Law at George Mason University School of Law
Judicial Comments on Pending Cases: The Ethical Restrictions and the Sanctions-a Case Study of the Microsoft Litigation
Ronald D. Rotunda | 2001 U. Ill. L. Rev.
In our legal system, the most authoritative figures are the judges. Yet, despite the increased demands and offers for media commentary that judges must be receiving, in the following article, Professor Ronald Rotunda explains that judges are ethically prohibited from providing ex parte commentary about ongoing cases. He argues that the prohibition is and should be absolute-whether dealing with print or electronic media. This is especially true if the judge is presiding over the case. Professor Rotunda draws his primary examples from the recent media coverage surrounding the Microsoft antitrust trial; but he contends that the rules apply across the board.
*Albert E. Jenner, Jr. Professor of Law, University of Illinois College of Law
Book Review Essay
Civil War Without End: The Sociology and Synergy of Law and History
Bryan H. Wildenthal | 2001 U. Ill. L. Rev.
BOOK REVIEW: Pamela Brandwein, Reconstructing Reconstruction: The Supreme Court and the Production of Historical Truth (Durham, N.C.: Duke Univ. Press 1999).
*Associate Professor of Law, Thomas Jefferson School of Law
The Final Frontier: Right of Publicity in Fictional Characters
Dawn H. Dawson | 2001 U. Ill. L. Rev.
The right of publicity secures an individual's right "to control the commercial value and exploitation of his name and picture or likeness and to prevent others from unfairly appropriating this value for their commercial benefit." The author of this note advocates granting a right of publicity in a fictional character to an actor who portrays the fictional character, to the extent that the fictional character is so closely coupled with the actor that the character's use evokes the identity of the actor. After examining the social, economic, and preemption debates surrounding right of publicity claims, the author determines that the courts are correctly deciding that the right should include a general "appropriation of identity" test. Despite this judicial success, the author demonstrates that, currently, there is a lack of uniform legislation protecting the right of publicity. The author outlines the benefits that would follow the enactment of a federal statute protecting the right of publicity, and, in conclusion, the author encourages the application of an analytical framework to determine whether infringement of the actor's right of publicity took place.
Turning Our Backs on the Children: Implications of Recent Decisions Regarding the Hague Convention on International Child Abduction
Sharon C. Nelson | 2001 U. Ill. L. Rev.
The Hague Convention on the Civil Aspects of International Child Abduction was enacted in 1988, with the goal of ensuring that children wrongfully abducted across international borders are promptly returned according to the legal rights and procedures of the proper state. The interpretation of the Convention standards over the last ten years, by the United States and other joined countries, has been varied. After a brief overview of the policies underlying the Convention, the author examines the core terms and procedures for returning a wrongfully abducted child and how the courts have subsequently applied these standards. The focus of this note is on one particular exception that is the source of much of the present confusion, the exception that wrongfully abducted children be returned unless returning would cause a grave risk of harm to the child. The author sets forth the various interpretations of when a grave risk of harm to the child arises, highlighting inconsistencies among different courts and the dangerous implications of these interpretations, especially for the children involved. At the center of the author's concern is the recent decision in Blondin v. Dubois, where the Second Circuit significantly narrowed the interpretation of the grave risk exception, adding a further step of analysis to the grave risk determination. The author proposes adopting a broader interpretation of what constitutes a grave risk of harm and demonstrates not only why her proposal would be well within the scope of the Convention, but also why it is essential in furthering the Convention's fundamental purpose, to protect the interests of the children who have been abducted.
"Unfair" Arbitration Clauses
Christopher R. Drahozal | 2001 U. Ill. L. Rev.
The use of predispute arbitration agreements, those that require the use of arbitration to resolve future disputes, has been widely debated by both academic scholars and the courts. While federal courts generally enforce these agree-ments, many academics disfavor their use, especially when used in contracts between businesses and consumers, employers and employees, and franchisors and franchisees. Critics of these types of arbitration agreements label them as mandatory and unfair. In fact, some courts have begun to recognize these criticisms in a variety of decisions that refuse to enforce such arbitration agreements.
In this article, Professor Christopher Drahozal fills a void in the existing literature by utilizing empirical methods to ana-lyze predispute arbitration agreements in consumer contracts. Through his research, Professor Drahozal finds that not only are unfair predispute arbitration agreements less prevalent than the existing literature might suggest, but that not all arbitration clauses can be labeled unfair. In addition, even unfair clauses may actually provide net benefits to the parties. The research identifies the circumstances in which courts and scholars should be wary of arbitration clauses in consumer contracts. At the same time, however, Professor Drahozal paints a more optimistic picture of this type of arbitration.
*Professor of Law, University of Kansas
The Intersection of Two Systems: An American on Trial for an American Murder in the French Cour d'Assises
Renée Lettow Lerner | 2001 U. Ill. L. Rev.
This study discusses a murder case in France's trial court for the most serious crimes, the Cour d'assises. The case was highly unusual because the person on trial was an American, accused of having murdered other Americans in the United States. For reasons given below, cases in which crimes committed in the United States are tried abroad are likely to become more common. This study describes how such a case proceeds in France, including some of the difficulties that can arise from combining two investigations controlled by very different systems of procedure. An advice section is given for American prosecutors and defense advisers involved in such cases. More broadly, the study sheds light on the differences between the United States and continental legal systems, in part building on existing work in the area of comparative criminal procedure and drawing on French sources. The study emphasizes the effects of judicial control over trial presentation of oral testimony, especially that of the defendant and experts. Drawbacks to the French approach to oral testimony include less vigorous probing of testimony by the parties. Advantages include allowing fact-finders to know more information; permitting a more flexible order of presentation; and fostering dignitary values by letting witnesses speak in their natural voices and by achieving a deeper understanding of the defendant as a unique human being.
*Associate Professor of Law, George Washington University Law School
Livrebleu 17: Les Conséquences Tragiques Forgées Par le Professeur Répugnant Nommé Grantmore
Wayne R. LaFave | 2001 U. Ill. L. Rev.
In a stellar example of investigative journalism in the Woodward-Bernstein tradition, Professor LaFave here presents his exposé of the Bluebook seventeenth edition scandal, revealing: (1) where in the latest Bluebook there is an inexplicable 180º shift in citation policy; (2) who provoked that change; (3) why he did it; (4) what Bluebook purists can do about it; and (5) when the next bus leaves for Peoria. Pulitzer Prize Committee, take note!
*David C. Baum Professor of Law Emeritus & Professor in the Center for Advanced Study Emeritus, University of Illinois
Government, Signaling, and Social Norms
Kristin Madison | 2001 U. Ill. L. Rev.
BOOK REVIEW: Law and Social Norms by Eric A. Posner (2000)
Disclaimer Law: A Call for Statutory Reform
Andrew S. Bender | 2001 U. Ill. L. Rev.
For most of us, the receipt of a gift-either through a will, inter vivos transfer, or otherwise-is a welcome occurrence. But a gift to some individuals creates undesirable consequences. Whether to avoid waiting creditors, a federal tax lien, or to reduce one's overall tax liability, recipients often turn to disclaimer law to avoid the negative consequences of a gratuitous transfer of property. By invoking the disclaimer, the individual keeps the property in "friendly" hands and out of the coffers of creditors or the government.
A tension accompanies disclaimer law that places the interests of personal autonomy at odds with creditors' rights and the efficient running of a governmental tax system. In other areas of law, such as bankruptcy, this tension is normally resolved against the individual. Disclaimer law, however, has traditionally placed absolute control over acceptance of a gift in the hands of the individual. Creditors and the government are thus left with no recourse.
Recognizing that disclaimer law principles contradict traditionally accepted policy goals, courts have begun to alter the application of disclaimer law to shift the balance away from the individual. Most notably, the U.S. Supreme Court determined that a federal tax lien immediately attaches to gifted property, preempting any attempt by the individual to invoke state disclaimer law to avoid the tax lien.
In his note, Andrew Bender examines the courts' departure from common-law disclaimer principles. Although Mr. Bender concludes that disclaimer law needs to be altered in order to achieve broad policy objectives and consistency with bankruptcy and fraudulent transfer law, he disagrees with the judicial approach. Rather, he contends that a legislative solution is necessary, and better suited, to resolve the numerous inconsistencies that result from judicial action.
Randell Warehouse of Arizona: Surveillance, Coercion, and the Unionization Campaign
Brent G. Tabacchi | 2001 U. Ill. L. Rev.
In this note, Brent G. Tabacchi, examines the implications of the Randell Warehouse of Arizona decision on the use of surveillance in the context of unionization campaigns. Both the federal courts and the National Labor Relations Board (NLRB) have struggled with the tension between an employer and union's use of surveillance during a unionization campaign and the rights of the employees. Randell Warehouse of Arizona, meant to clarify the issue, has instead created greater uncertainty.
The author begins by exploring the roots of the National Labor Relations Act (NLRA) and its prohibition of employer interference with an employee's ability to participate in union activities. Such legislation was necessary as the common law did not adequately protect employees or foster the sluggish economy. Section 7 of the NLRA provided employees the right to self-organize and, more importantly, section 8 provided definitive protection of this right making it an unfair la-bor practice for an employer to interfere with the employee's section 7 rights. Later, the Taft Hartley Act put the same constraints on unions as the NLRA had placed on employers.
Next, the author examines the NLRB's more difficult task of applying the new legislation in the workplace and developing tests to determine what type of conduct constituted a violation by employers and unions. Following NLRB precedent that created a presumption of a violation for certain forms of union photography, the Randell Warehouse of Arizona decision further complicated the issue by dichotomizing the treatment of union and employer exploitation of photography in the context of unionization campaigns. In the majority, though heavily criticized, decision, the NLRB makes broad presumptions concerning the effect and operation of surveillance in the workplace to justify its disparate treatment. This author argues that these presumptions are too broad to be effective, fair, or realistic.
Ultimately, the author recommends that the board apply an "under the circumstances" approach to surveillance in the context of unionization campaigns. Such a test, argues the author, will provide a fair and flexible analysis to cases involving alleged violations of section 8 of the NLRA. When using this approach, the Board merely asks whether, under the particular circumstances of this case, the questioned conduct tended to coerce or tended to interfere with the employee's exercise of his rights. This inquiry serves to promote the interests of the worker without unduly trammeling union and employer prerogatives.
David C. Baum Memorial Lectures on Civil Liberties and Civil Rights
"Nigger!" as a Problem in the Law
Randall L. Kennedy | 2001 U. Ill. L. Rev.
In this essay, originally delivered as part of the David C. Baum Memorial Lecture Series on Civil Liberties and Civil Rights at the University of Illinois College of Law, Professor Randall L. Kennedy examines the use of the word "nigger" as a problem in the law.
He argues that while use of the "N-word" should be limited, it should not be eradicated. He believes that "erasing it altogether would, among other things, destroy a significant part of our cultural heritage that is used in positive as well as negative ways." Finally, Professor Kennedy posits that "nigger" may be undergoing a transformation to a "term of derision . . . [affixed] to targets regardless of race."
*Professor of Law at Harvard Law School
Compensation for Mass Private Delicts: Evolving Roles of Administrative, Criminal, and Tort Law
Jack B. Weinstein | 2001 U. Ill. L. Rev.
In this essay, the Honorable Judge Weinstein explores the "evolving role of administrative, criminal and tort law in compensating victims and deterring mass delicts." This essay, originally delivered as part of the Paul M. Van Arsdell Lecture, at the University of Illinois College of Law, begins by discussing the evolution of these three models in compensating victims of mass torts, and how recent developments have led these three models to overlap. Administrative law is primarily designed to prevent mass torts through regulation. Changes in discovery rules, as well as long-arm statutes, among other factors, have begun to favor "those seeking private remedies in the courts." The evolution of criminal law beyond the protection of the public can be seen through the increased use of fines and forfeitures in criminal proceedings, although this trend has the effect of reducing the amount available to pay victims restitution. In part III, Judge Weinstein provides recent examples of this trend towards overlap in federal district court as well as in administrative law. Parts IV and V describe the effects that increased use of criminal and administrative law in compensating victims of mass delicts, the trend towards limiting recovery in tort law, and the costs and benefits of these developments. He concludes by positing that tort law still plays a vital role in compensating victims of mass delicts. Finally, in part IV, Judge Weinstein suggests that tort law could be better integrated into the three model system, and how such an integrated administrative-criminal-tort system could help reduce duplicative litigation.
*Senior Judge, Eastern District of New York
Constitutionalizing the Federal Criminal Law Debate: Morrison, Jones, and the ABA
George D. Brown | 2001 U. Ill. L. Rev.
As the number of federal criminal laws has increased over the past decade, so, too, has the intensity with which scholars debate the role of federal law generally. However, in their debate, the scholars focus largely on matters of legislative policy. They essentially ask the question, "How far should Congress go when creating new federal law?" Professor George Brown seeks to answer a different question.
In this article, Professor Brown addresses the constitutional questions regarding federal criminal law. In essence, he attempts to answer not how far Congress should go, but, instead, how far it actually can go when formulating new federal law. Following the Lopez decision, it seemed that constitutional issues would become more prevalent in the federal criminal law debate. Although some scholars continue to treat the matter as one of legislative choice, Professor Brown argues that the recent decisions in Morrison and Jones require scholars to address the constitutional issues. He then offers a revised look at the debate-one that includes both legislative and constitutional issues.
*Professor of Law at Boston College Law School
Harmonizing Civil and Criminal Enforcement of Federal Regulatory Statutes: The Case of the Securities Exchange Act of 1934
Margaret V. Sachs | 2001 U. Ill. L. Rev.
Many federal regulatory statutes (including those governing antitrust, securities, and the environment) are hybrid statutes: their prohibitions are enforceable in criminal actions as well as in private or governmental civil actions (or both). Courts have long divided over whether prohibitions in hybrid statutes can be construed differently in different enforcement contexts. Resolution of this uncertainty has become urgent now that criminal enforcement of federal regulatory statutes is relatively frequent.
In this article, Professor Sachs argues that prohibitions in hybrid statutes should be limited to a single interpretation. How to apply this principle (referred to in this article as "the core principle") is not self-evident, however, since the one interpretation that is chosen must be suitable for all enforcement contexts. Accordingly, Professor Sachs identifies rules that supplement the core principle. She extracts the core principle and rules from Supreme Court decisions that apply the core principle and rules but leave them unstated.
Professor Sachs then examines the core principle and rules in relation to the Securities Exchange Act of 1934 ("Exchange Act"). Before 1980, lower federal courts construing the Exchange Act expressed support for the core principle. In the 1980s and thereafter, however, some courts abandoned the core principle to accommodate changes that were taking place with respect to Exchange Act criminal actions, implied private actions, and actions involving international securities fraud. Professor Sachs shows that courts adhering to the core principle enhance their ability to promote the Exchange Act's policy of combating unscrupulousness in the securities markets.
*Professor of Law at University of Georgia School of Law
Finding the Balance in Cash Balance Pension Plans
Daniel J. Sennott | 2001 U. Ill. L. Rev.
As companies abandon traditional pension plans in favor of the newer cash balance plans, disputes over benefit calculations under the new plans have arisen between employers and employees. Courts have had the formidable task of resolving disputes over the present value of benefits when participants in cash balance plans terminate their participation in the plans early and elect a lump-sum distribution. This note reviews two recent cases that demonstrate how applying traditional calculation formulas to cash balance plan lump-sum distributions perpetuates the "whipsaw" effect-a phenomenon that results when the lump-sum calculation is greater than the current cash balance account value.
This note asserts that the cases of Esden and Lyons may encourage employers to reduce the benefits of all employees with cash balance plans in order to avoid liability with respect to the employees who cash out of their plans early. Even if the cases do not expressly require employers to reduce benefits across the board in order to ensure compliance with ERISA, employers may see this as the simplest, most economically sound and safest response to the decisions. The author offers two suggestions on how Congress can address the "whipsaw" effect-one is that Congress draft legislation specifically governing cash balance plans and the other is that Congress discourage lump-sum payment options.
From the Factory to the Firm: Clarifying Standards for Blue-Collar and White-Collar Sexual Harassment Claims Under Title VII of the Civil Rights Act of 1964
Amanda Helm Wright | 2001 U. Ill. L. Rev.
The passage of Title VII of the Civil Rights Act of 1964 marked the beginning of the movement towards awareness and enforcement of women's rights in the workplace. The movement has since led to a generation where the term "sexual harassment" has become part of the common vernacular. Title VII, however, provides less than clear guidance in the application of its sweeping prohibitions, and sexual harassment litigation has resulted in inconsistent results among courts. In this note, the author explores one notably dissonant area of sexual harassment claims-hostile work environment cases. Specifically, the Sixth and Tenth Circuits are directly split on the issue of whether the nature of the work environment where the gender discrimination is alleged to have occurred is a factor to be taken into account when evaluating a hostile work environment claim. In examining this issue in the context of blue-collar and white-collar working environments, the author outlines the disparities in the circuits' approaches and the broader implications of these differences. The author ultimately concludes that the proper examination of Title VII hostile work environment sexual harassment claims must include consideration of the work environment as a whole. She provides a framework for applying the broader standard and also addresses employee acceptance of certain work site conditions, employer defenses, effects of future claims, and relevant counterarguments.
David C. Baum Memorial Lectures on Civil Liberties and Civil Rights
Abraham Lincoln and the American Union
Akhil Reed Amar | 2001 U. Ill. L. Rev.
In his Baum Memorial Lecture on Civil Liberties and Civil Rights, Professor Amar pays tribute to one of Illinois's greatest contributions to constitutional liberty, in the person of Abraham Lincoln. In particular, Professor Amar explores Lincoln's multifaceted vision of Union and explains how that vision both protected liberty and reflected Lincoln's Illinois experience.
*Southmayd Professor of Law, Yale Law School
Was the Emancipation Proclamation Constitutional? Do We/Should We Care What the Answer Is?
Sanford Levinson | 2001 U. Ill. L. Rev.
On the first day of the new year of 1863, President Abraham Lincoln issued the Emancipation Proclamation-signifying the dawn of a new era in the bitterly divided United States of America. Surely, few would question the monumental significance of this historic event. Few would dare debate the "rightness" of Lincoln's action. However, Professor Sanford Levinson, in his David C. Baum Memorial Lecture, asks: was the Proclamation constitutional? In this provocative piece, Professor Levinson explores Lincoln's, and his contemporaries', intellectual and political struggles with the constitutional parameters of the office of president and the lawful scope of the Proclamation. Professor Levinson then proceeds to set forth an assessment of the constitutionality of Lincoln's action. Ultimately, according to Professor Levinson, the question becomes: do we care whether the Emancipation Proclamation, and other landmark acts, events, and decisions, are constitutional? He argues that society evaluates constitutional decisions with a focus on whether it agrees with or substantively "likes" the outcome, i.e., nonlegal grounds, rather than on the decision's fidelity to the Constitution. Professor Levinson concludes by discussing Bush v. Gore and the lessons it, and the Emancipation Proclamation, teach about constitutional development, "rough justice," and most importantly, constitutional fidelity.
*W. St. John Garwood and W. St. John Garwood Jr. Regents Chair in Law, University of Texas Law School
Institutional Arrangements and Individual Rights: A Comment on Professor Tribe's Critique of the Modern Court's Treatment of Constitutional Liberty
Dan T. Coenen | 2001 U. Ill. L. Rev.
Professor Coenen analyzes Professor Tribe's contention that the present day Supreme Court's constitutional work is marked by an unjustified two-track approach. Professor Tribe has built this claim on an elaborate assessment of Saenz v. Roe, in which the Court-to the surprise of many prognosticators-invalidated a state statute that imposed temporary limitations on welfare benefits for new residents. He contends that the Court employed the open-stanced constitutional methodology of "structural inference" in deciding Saenz only because that case involved institutional arrangements. According to Professor Tribe, the modern Court has carefully (and unjustifiably) confined its use of structural inference to institutional-arrangement cases; in the field of individual liberty it has eschewed this nontextual, nontradition-based style of reasoning ever since its 1973 ruling in Roe v. Wade.
Coenen begins his response to Professor Tribe's comment by noting that it provides a powerful call for the protection of individual liberties. Coenen also agrees that the structural-inference model has driven recent Supreme Court decisions that curtailed congressional authority under the banner of implied federalism limitations. Coenen, however, raises three major questions about Tribe's portrayal of the modern Court's work and its methodological and doctrinal implications.
First, Coenen asks whether Professor Tribe's dualistic portrayal of the modern Court's work represents an oversimplification. Examining a variety of modern rulings, Coenen concludes that the two-track depiction both overstates the Court's willingness to use the structural methodology in cases like Saenz and understates its willingness to use that methodology in true "fundamental rights" cases.
Next, Professor Coenen notes that the Court's holding in Saenz, which invalidated a seemingly quite plausible state law, appears inconsistent at first blush with the Rehnquist Court's strong pro-states-rights stance. Coenen argues, however, that Saenz is best understood within a larger view of why state autonomy has value. State autonomy, he says, is merely a means to other ends, and the benefits from diverse state communities exist only when interstate mobility is unimpeded.
Lastly, although Professor Coenen endorses the view that structural inference should be employed in more orthodox cases involving claimed infringements of rights, he expresses concern about Professor Tribe's suggestion that courts should safeguard individual autonomy because it is connected up with institutional arrangements. More specifically, Coenen worries that this way of thinking about rights might ultimately narrow-rather than broaden-the Court's use of structural inference. Coenen suggests that courts should not apply structural inference in individual-liberty cases on the theory that those cases have institutional dimensions. Rather, courts should use the methodology of structural inference in individual-liberty cases because individual liberties are important in and of themselves.
*J. Alton Hosch Professor, University of Georgia School of Law. B.S. 1974, University of Wisconsin; J.D. 1978, Cornell Law School.
Economics, Causation, and the Entrapment Defense
J. Gregory Deis | 2001 U. Ill. L. Rev.
Undercover operations are an essential component of effective law enforcement in combating certain types of crimes. But the extreme instances of government involvement in criminal enterprises raise significant policy concerns. Such tactics can lead to criminal activity that would not have otherwise occurred. Undercover operations are socially desirable only where they aid law enforcement in apprehending those persons who pose a current threat of crime to society. On the other hand, where undercover operations ensnare persons who would not have engaged in criminal activity absent the government's solicitation, government resources are squandered. Where no threat of harm exists, law enforcement has no legitimate interest. The entrapment defense is the judicial instrument created to address this possibility of government-manufactured crime.
In this note, the author explores the relationship between economic analysis and the entrapment defense, focusing on the entrapment defense in the federal courts. The note begins by examining the Supreme Court's treatment of the entrapment defense and argues that causation is the underlying principle driving the decisions of the Court. Next, the note develops an economic model for the defense, using principles derived from an examination of the cost-benefit analysis of the police and the cost-benefit analysis of the rational decisionmaker contemplating criminal activity. The economic model is then compared to the existing federal-court approach. The note then goes on to resolve a current split in the federal circuits relating to the concept of positional predisposition, using principles derived from the economic model. Finally, informed by economic analysis, the note proposes a sliding-scale approach to the entrapment defense, employable within the existing contours of the federal-court approach. In addition to the economic justification, the author finds support for this proposal in previous Supreme Court decisions.
"The function of law enforcement is the prevention and the apprehension of criminals. Manifestly that function does not include the manufacturing of crime."
An Extension of the Special Needs Doctrine to Permit Drug Testing of Curfew Violators
Shannon D. Landreth | 2001 U. Ill. L. Rev.
The U.S. Supreme Court has determined that the government has a significant interest in protecting the welfare of minors. It has also recognized that children's constitutional rights are limited and that intrusions on those rights may be justified by "compelling state interests." For instance, the "special needs doctrine" enables states to circumvent the warrant and probable cause requirements of the Fourth Amendment as applied to minors when certain requirements are met. Namely, the state must articulate a "special need" for the search or seizure, after which the court will balance the governmental interest against the individual's privacy interests. Under this doctrine, federal courts have upheld warrantless, suspicionless drug-testing programs as applied to certain groups of minors.
The author argues that the strong governmental interest in caring for the welfare and development of minors provides a constitutional basis for curfew ordinances restricting a minor's freedom of movement during certain nighttime hours. In addition, she advocates for an extension of the "special needs doctrine" to permit, for the limited purpose of rehabilitation and treatment, drug testing of minors who voluntarily violate such ordinances.
Compulsory Patent Licensing for Efficient Use of Inventions
Joseph A. Yosick | 2001 U. Ill. L. Rev.
This note compares compulsory patent licensing provisions in the United States and modern, foreign nations. Many foreign nations have provisions that allow for compulsory licensing of patents. Compulsory licensing provisions give states the power to force a patent holder to license his patent to another, despite the patent holder's property interest in the patent. The author argues that the interest of the public, in some cases, may outweigh a patent holder's property interest.
The note begins by providing an overview of U.S. patent law and its limited use of compulsory licensing in certain cases, such as a remedy for antitrust violations. Recent U.S. cases have rekindled the need to look at expanding the use of compulsory licensing. Next, the author sets forth other nations' compulsory licensing provisions in three particular areas: dependent patents, non-worked patents, and medical and food patents. After an analysis of the limited use of compulsory licensing in the U.S., the author examines the possible expansion of the current U.S. law by analyzing current U.S. statutes and case law. The analysis also discusses proposals for the expansion of compulsory licensing and the criticism these proposals have encountered.
The author suggests implementing compulsory licensing into U.S. patent law by enacting legislation similar to the patent laws of other nations. If the patent holder and the individual applying to use the patent fail to reach a compromise, the author proposes that the applicant would proceed through the licensing process through a federal district court. The patent holder is able to appeal if a license is granted to the applicant, thus the holder does not completely lose property interests and rights to his creation. Expanding the use of compulsory licensing in the United States would promote the use of dormant patents, provide procedures for remedying disputes, and promote further development of technology.