In a prior article, Professor Schwarcz examined the factors that dif-ferentiate Enron’s questionable use of off-balance sheet special purpose entities, (SPEs) from the trillions of dollars of “legitimate” securitization and other structured-finance transactions that use SPEs. The presence of meaningful differences, Professor Schwarcz argued, may inform regula-tory schemes by providing a basis to distinguish which such transactions should be allowed or restricted. In that connection, Professor Schwarcz encountered the dilemma that some structured transactions are so com-plex that disclosure to investors of the company originating the transac-tion is necessarily imperfect—either oversimplifying the transaction, or providing detail and sophistication beyond the level of even most institu-tional investors and securities analysts. In this article, Professor Schwarcz focuses on solutions to this dilemma, arguing that complexity forces a rethinking of the long-held disclosure paradigm of securities law.

Introduction

In this article, Professor Kaplan identifies an issue emerging as one of the major crises in the American health care system: how seniors and their families will finance long-term care. Many individuals neither real-ize the potential expense of long-term care nor plan for the contingency that they will require such care. Even if an individual is conscientious and attempts to plan for her long-term care, she faces a myriad of unco-ordinated options to provide for her care and may easily become con-fused and frustrated.

Professor Kaplan reviews the wide array of long-term care options cur-rently available, including home care, congregate living arrangements, and nursing homes. He then examines the extent of coverage for long-term care provided by the two government programs most older Ameri-cans rely upon for long-term care, Medicare and Medicaid. He identifies several coverage gaps in these programs. To fill these gaps, Professor Kaplan proposes that Medicare be amended to cover care provided in nursing homes. In addition, he recommends that long-term care insur-ance be re-oriented to less intensive care settings, such as assisted living facilities, and that insurance options and features be standardized. Standardization would facilitate easier consumer comparisons and ensure that all insurance options provide a minimal level of coverage.

With many states and the federal government facing budget deficits, lawmakers across the country are looking to reduce government expendi-tures wherever feasible. In this article, Professor Kaestner examines the current state of publicly provided health insurance and makes several recommendations designed to reduce government spending with respect to two programs: Medicaid and the State Children’s Health Insurance Program (SCHIP). Focusing on spending directed at the non-elderly poor, Professor Kaestner argues that significant savings can be achieved in two general areas: reducing the amount of inefficient care and nar-rowing the income range necessary to participate in Medicaid or SCHIP. Professor Kaestner sets forth several specific policy changes designed to generate savings in these two areas, and argues that these savings can be realized without jeopardizing the physical or financial health of the non-elderly poor.

The authors describe Title XXI of the Social Security Act as a fund-ing scheme for children’s health insurance that represents an “experi-ment in federalism,” a new cooperative model under which state and fed-eral governments interact on an equal basis. Under this scheme, the federal government provides funding and the states remain free to estab-lish administrative details. The authors compare the advantages and dis-advantages of this new approach with older approaches, such as Medi-care and Medicaid. The authors argue that Title XXI has proven successful in allowing state governments without fiscal or administrative capacity the flexibility to aid children in need of medical care. Finally, the authors urge continued study of Title XXI to determine the extent to which cooperative federalism can serve as a model for national health care.

In the following article, Professor William White examines the in-teraction between governmental and private efforts to reform the U.S. health care system. He begins by examining several distinctive features of the U.S. health care system. From there, Professor White provides a historical account of the modern U.S. health care system, focusing in particular on the post-World War II growth of private health insurance providers and the expanding government regulation of the health care industry. Tracking the shift away from regulatory efforts to “market-based,” competitive reforms in the 1980s, Professor White traces the rise of managed care in the 1990s and presents evidence of managed care’s failure to contain health care costs. Professor White concludes by examining some emerging trends in private insurance markets and government regulation of the health care industry, designed to slow the steady upward climb of health care spending.

Noting that the risk of malpractice liability poses a significant bar-rier to the provision of volunteer health care in this country, the author analyzes current state and federal legislative approaches designed to overcome the hurdle, including a changed standard of care for malprac-tice liability from simple negligence to gross negligence, governmental indemnification of volunteer providers, and state sponsored malpractice insurance. The author challenges legislators to enhance existing legisla-tion by combining the best aspects of the varied approaches in an effort to increase delivery of medical services to those in need, while at the same time ensuring the protection of uninsured patients from malpractice.

In this article, Dr. Cantor examines the state of palliative care in the United States. Most Americans have not given much thought to either how they will die or the kinds of services they will need while coping with fatal chronic illnesses. Dr. Cantor first points out trends in death and dying, and then discusses the three most common trajectories Americans face when dying. Next, the article addresses the financial and nonfinancial barriers individuals face in obtaining quality end-of-life care. Finally, Dr. Cantor concludes with a vision of what palliative care should be like and suggests steps individuals can take to implement that vision.

In 1993, the Department of Health and Human Services granted Oregon a Medicaid waiver that allowed Oregon to implement a health plan prioritizing payment for certain types of treatments. The federal government granted this waiver at about the same time the managed care revolution transformed the provision of healthcare in the United States. The health plan, implemented in 1994, has expanded healthcare coverage for uninsured individuals in Oregon.

In recent years, healthcare spending has increased at an astronomical rate, and more and more Americans have become unable to afford health insurance. In an effort to curtail this disturbing trend, managed care plans have implemented certain cost containment measures, such as re-quiring approval by a primary care provider or preauthorization from the plan’s administrator before the insured can undergo certain procedures. Many Americans have reacted negatively to managed care because it limits their choices—otherwise known as rationing their healthcare. In this article, Dr. Rice examines the Oregon Health Plan and asks whether that plan represents the rationing of healthcare.

Professors Marmor and Oberlander examine the state of health care reform in the United States. The authors briefly discuss the failed Clinton health plan before examining the return of health reform to the political agenda. They then focus on alternatives, such as a federalist option, the pincer movement, and a single-payer system. Finally, the au-thors highlight the lessons that can be learned from previous attempts to enact comprehensive health reform.

When it was first drafted and put into effect, the Americans with Disabilities Act (ADA) allowed litigants to seek monetary damages from state governments for disability-based discrimination under Title I and Title II of the statute. On Eleventh Amendment grounds, however, recent decisions have virtually eliminated the prospect of monetary damage awards against the states for such violations. In the wake of these deci-sions, the precise scope of remedies against the states for violations of Ti-tles I and II of the ADA is unclear. This note examines possible alterna-tive remedies for private plaintiffs alleging disability discrimination by the states. Ultimately, the note argues that two viable remedies exist: injunctive relief under Ex parte Young, and the so-called plan waiver ex-ception to the Eleventh Amendment. The note asserts that the plan waiver remedy is particularly suitable when a Title I violation is alleged, while Ex parte Young injunctive relief should be favored as a remedy for Title II violations.

Under the recent Supreme Court decision of Apprendi v. New Jersey, a fact that potentially increases the punishment for a crime above the statu-torily prescribed maximum must be proved beyond a reasonable doubt to the jury. However, the Apprendi Court crafted an exception to this rule for prior convictions. This note analyzes conflicting case law regarding the proper scope of the “prior conviction” exception and, specifically, whether nonjury juvenile adjudications should be covered by the excep-tion.

In doing this, the note first examines the “flexible” nature of procedural due process as applicable to criminal trials and juvenile adjudications. The note then reviews Apprendi along with two other Supreme Court de-cisions as a means of understanding the policies underlying the “prior conviction” exception. The author ultimately argues that both the poli-cies behind the prior conviction exception and a faithful interpretation of Supreme Court precedent weigh in favor of nonjury juvenile adjudica-tions falling within the exception.

Many advocates of bankruptcy reform bristle at aspects of the bank-ruptcy system they find distributively “unfair.” These scholars point to the instances in which wealthy debtors have been able to retain million-dollar homes and luxury items, examples which at first glance might of-fend any reasonable sense of decency or fairness. Yet if bankruptcy pro-vides insurance otherwise unavailable because of market failures, then an ideal bankruptcy system would embrace much of this inequality in post-bankruptcy standards of living. The wealthy generally choose private contracts that ensure their high standards of living. Though others envy these benefits, they do not wish to pay the premiums these policies re-quire. To the extent that credit markets force a debtor to pay premiums (in the form of higher interest rates) for the debt relief she would likely receive, forcing all debtors to accept the same standard of living forces each debtor to accept the same Procrustean insurance that is too meager for some and too dear for others. This argument requires strong assump-tions that reasonable minds may reject. If one rejects these assumptions, however, then one must question not only the debt relief secured by up-per-class bankrupts, but also the debt relief offered to the middle class.

In this article, Professor Morse provides new insights into the con-cept of desert in criminal punishment. Professor Morse argues that in-tentional action and forbearance are the only kinds of human conduct that can be effectively guided by the criminal law. The consequences of action, however, cannot be fully guided and are therefore inappropriate predicates for desert. Professor Morse contends that a rational system of criminal law should focus solely on actions and should not impose pun-ishment based on results.

Professor Morse’s action-guiding account of the law helps to ex-plain disputed areas of criminal law, including attempt liability, risk cre-ation, causation, accomplice liability, strict liability, and the justifica-tions. After responding to the counterarguments of leading criminal law scholars, the article concludes that a consistent subjectivism concerning criminal liability is both possible and fair.

‘As you can plainly see, failed guidance
is the cause the world is steeped in vice,
and not your inner nature that has grown corrupt. —Dante

No Abstract Available

In its 2002 volume, the University of Illinois Law Review published posthumously an unfinished symposium article by Professor Gary Schwartz entitled Empiricism and Tort Law. In that piece, Professor Schwartz discussed the work of, among others, Professor Michael Saks. Professor Saks, seeking the opportunity to respond to Professor Schwartz’s piece, has authored the brief comment that follows below. The University of Illinois Law Review is committed to the principles of open discussion and scholarly debate; and it is to meet those ends that we have chosen to publish Professors Saks’s response even though the original author cannot reply. Although this situation is not ideal, we believe it important to continue the dialogue that Professor Schwartz began with Empiricism and Tort Law.

While gay men and lesbians have increasingly gained legal rights in many areas of the law, they have not been as successful in the context of employment litigation, specifically in the realm of Title VII of the Civil Rights Act. Because sexual orientation is not a protected class under Ti-tle VII, gender-nonconforming homosexuals—that is, effeminate gay men and masculine lesbians—have utilized the Supreme Court’s opinion in Price Waterhouse v. Hopkins to argue that they were discriminated against by their employers or coworkers because they failed to conform to gender stereotypes, which is evidence of sex discrimination under Title VII. On the other hand, gender-conforming homosexuals—that is, mas-culine gay men and feminine lesbians—have, until now, not been able to make this sort of gender stereotyping argument. This note takes up that issue.

After broadening the definition of gender to include both an idealized (anchor) and an idiosyncratic (expressive) component, the author argues that there is an “ultimate” gender stereotype in play when homosexual employees are discriminated against for failing to conform to gender ex-pectations. Unlike the previous gender stereotyping theory, however, the ultimate gender stereotype incorporates sexual preference into a homo-sexual’s expressive gender. The author argues further that, because of its breadth, the ultimate gender stereotype equalizes gender-conforming and gender-nonconforming homosexuals under Title VII.

Following the events of September 11, 2001, the Department of Jus-tice promulgated a new Bureau of Prisons (BOP) rule that authorizes the government to monitor certain attorney-client conversations in the inter-ests of public safety and national security. Because the BOP rule argua-bly will not survive scrutiny under traditional Sixth Amendment jurispru-dence, the Department of Justice may wish to argue for the creation of a Sixth Amendment public-safety exception akin to that found in the context of the Miranda warnings. In this note, the author posits that support for such an exception under the Sixth Amendment can be premised on the Supreme Court’s holding in Dickerson v. United States that Miranda warnings are constitutionally based within the framework of the Fifth Amendment. Because the Court has carved out a public-safety exception for Miranda warnings, which are now viewed as stemming from a constitutional rule, it stands to reason that the Court could do the same in the context of the Sixth Amendment. The author ultimately argues, however, that neither the Court’s uncertain Fifth Amendment jurisprudence nor the policy considerations behind the Sixth Amendment justify creating a public-safety exception to the Sixth Amendment.

This article will identify the types of lawyer errors that demonstrate a fundamental failure to provide the expert assistance that lawyers have provided for 900 years. In that subcategory of cases, the Supreme Court’s Sixth Amendment doctrine promising effective assistance of counsel does not deliver on its promise. Some defendants go to prison, or to their death, because the defense lawyer did not present the client’s strongest case at trial. When a defense is not raised at trial, procedural rules almost always deem it defaulted and thus lost forever.

The question at the heart of this article is whether the Sixth Amendment right to counsel should require postconviction review of fundamental failures of lawyers at the trial stage. To date, the Supreme Court’s doc-trine has effectively placed almost all lawyer errors at trial off limits when convictions are reviewed, in part because of the Court’s concerns with finality and comity. The presentation of new claims after conviction acts to undermine finality and to create inefficiencies. To permit state defendants to raise those claims in federal court for the first time also un-dermines respect for state courts. This article argues that these legiti-mate concerns should not, however, lead to a parsimonious reading of the Sixth Amendment right to the assistance of counsel. Fundamental errors, such as the lack of loyalty to the client or the failure to raise claims likely to produce an acquittal, should not be ignored because of procedural rules. Outside that subcategory of fundamental failures, lawyer error should be essentially ignored. Defendants have a right to an adequate level of expert assistance, but not to a perfect lawyer.

It is an axiom of faith among criminal procedure scholars that legisla-tures are hostile to criminal defendants. Many have gestured towards an alleged “legislative default” in criminal procedure to support judicial activism to ensure fairness in the criminal process. This article, taking its cue from Mark Twain’s insight that Congress is our “distinctly native American criminal class,” questions the prevailing wisdom and argues that legislatures are sometimes sympathetic to criminal defendants.

Over the centuries, legislators have been menaced by criminal prosecu-tion, and this prospect has, on significant occasions, shaped the develop-ment of Anglo-American criminal procedure. In the late seventeenth century, after a prolonged period of vicious treason prosecutions, over the course of which almost every political faction was threatened and not a few innocent people executed, Parliament intervened to provide protec-tions for defendants accused of treason. These measures included many of the rights we take for granted in criminal trials today: the right to counsel, to compel witnesses to appear on the defendant’s behalf, and to have those witnesses sworn. More recently, in the aftermath of the Ab-scam sting operation of 1978–1980, Congress scrutinized undercover in-vestigations; and following the unsuccessful prosecution of Representa-tive Joseph McDade in 1996, Congress enacted a pair of measures to rein in federal prosecutors. Congress in part has itself to blame for the ease with which federal prosecutors can now bring close cases, for Congress has in recent years vastly extended criminal liability, particularly in the area of white collar crime. This article argues that the federalization of crime exposes politically prominent individuals, including members of Congress, to the criminal process and in this way ensures that the institution will not be wholly antagonistic to criminal defendants.

Since the 1920s, progressives have flip-flopped on the merits of judicial review at least three times. In the last few years, they have been forging a return toward the anti-judicial review camp, which ironically puts them in line with today’s conservatives. The trendy progressive movement against judicial review calls itself “popular constitutionalism” and has at its helm such prominent scholars as Mark Tushnet, Larry Kramer, Richard Parker, and Jeremy Waldon. They contend in varying degrees that people—not judges—are the best arbiters of constitutional interpretation.

In his Baum Memorial Lecture on Civil Liberties and Civil Rights, Pro-fessor Erwin Chemerinsky demonstrates that popular constitutionalism is exactly the wrong strategy for progressives because it rests on flawed premises and comes to undesirable conclusions. Professor Chemerinsky proposes instead that progressives formulate an alternative vision of ju-dicial review, distinct from that which the conservatives and popular con-stitutionalists espouse, and in which the courts play a central role. Be-cause history has shown that the way prominent scholars view judicial review today will influence how it is practiced tomorrow, the real danger, Professor Chemerinsky fears, is that popular constitutionalism will un-dermine judicial review in the long term, creating progressive judges who, in the name of judicial restraint, are reluctant to enforce the Constitution to advance liberty and equality.

In this article, the author discusses the Supreme Court’s recent decisions in Gratz v. Bollinger and Grutter v. Bollinger, in light of their relation-ship to Brown v. Board of Education, decided nearly fifty years earlier. Surveying decisions leading from Brown to Grutter, the author documents the evolution in the Court’s affirmative action cases from a remedial rationale to a diversity rationale. Testing the diversity justifica-tion against the Court’s strict scrutiny standard, however, the author finds that the diversity rationale is insufficient to meet the requirements of that test and urges the Court to return to the remedial logic of Brown.

First, noting persistent questions about the basis for and scope of the di-versity rationale, the author submits that diversity arguments fail to meet the Court’s requirement that racial preferences be narrowly tailored to serve a compelling state interest. Second, he suggests that continuing gaps in performance between black and white students show that the task Brown began is still incomplete, firmly establishing a continuing need to remedy past discrimination in education. Rather than restrict remedia-tion to those institutions guilty of past racial discrimination, however, remediation should be more broadly interpreted to permit educators to give racial preferences, but only to the extent that they can show a link between the current gaps in student performance and past discrimination. The author argues that such a broadened remedial rationale, with its re-sulting heightened burden of proof on educators, would provide both a persuasive reason for giving racial preferences in admissions and a natu-ral end to such racial preferences when the burden of proof can no longer be met. This article concludes by stating that the remedial rationale for considering race in admissions would keep such consideration visible and disciplined, while best fitting the spirit and result in Brown.

Within the last decade, payday lending has grown into a multibillion dollar industry by aggressively offering its services to cash-strapped bor-rowers without access to mainstream credit. Consumer advocates insist that stricter state and federal regulations are needed to protect low-income, vulnerable borrowers from questionable payday lending practic-es, which include triple-digit interest rates, exorbitant rollover fees, fre-quent failures to disclose loan terms, and coercive collection practices. Industry representatives, however, support a laissez-faire approach to payday lending, suggesting that regulatory paternalism will unfairly limit consumers’ freedom to purchase payday loans and harm the interests of borrowers that consumer advocates wish to protect.

This note argues in favor of enacting a uniform federal payday loan stat-ute to curb the abuses of payday lenders. While some states have passed small loan regulations and usury statutes, federal banking law currently allows payday lenders to partner with national banks to evade state laws. Congress must remedy this situation since the Office of the Comptroller of Currency (OCC) and the United States Supreme Court continue to support the preemption of state usury laws. The author also explains why free market mechanisms and litigation based on unconscionability claims fail to provide adequate consumer protection. Finally, the author pre-sents a framework for a federal payday loan statute and recommends the creation of payday loan alternatives through more stringent enforcement of the Community Reinvestment Act (CRA) and increased funding for In-dividual Development Accounts.

For a defendant to be convicted of conspiracy under federal law, two or more people must agree to commit an unlawful act and the defendant must knowingly and intentionally join the agreement. By definition, it would seem the offense does not allow for the conviction of a lone con-spirator. Yet, most federal courts permit lone conspirator convictions.

This note examines the conundrum of the lone conspirator. At common law, a defendant’s conspiracy conviction had to be reversed if all the de-fendant’s coconspirators were acquitted on the same conspiracy charges. Over the years, however, federal courts have eroded this so-called rule of consistency to the point of threatening its existence altogether. The au-thor argues that the federal courts’ modern position of allowing lone conspirator convictions is misguided. Tracing the roots of this position, he suggests that federal courts’ gradual movement away from the rule of consistency is a result of their misapplication of Supreme Court prece-dents allowing inconsistent jury verdicts in cases involving compound of-fenses and multiple-defendant crimes other than conspiracy. In particu-lar, the author notes that Dunn v. United States and United States v. Powell, Supreme Court cases allowing inconsistency between jury con-victions for predicate and compound offenses, do not address factual sit-uations requiring the culpability of one person as a condition precedent to the conviction of a second. Therefore, the author argues, they cannot be validly extended to eliminate the consistency requirement in conspira-cy cases. In the same regard, the author contends that the Supreme Court’s decision to uphold inconsistent jury verdicts as to a principal and an aider/abettor in Standefer v. United States was based on Congress’s intent to eliminate the common-law rule requiring the conviction of a principal prior to the conviction of an aider/abettor. The case does not support elimination of the rule of consistency in conspiracy cases because Congress has not indicated a similar intent to eliminate the culpability of another as a prerequisite for a federal conspiracy conviction.

By way of resolution, the author suggests that federal courts should not extend the holdings of Dunn, Powell, and Standefer to justify lone con-spirator convictions. The author also suggests that the rule of consisten-cy should not be abandoned in the absence of congressional legislation to the contrary. Finally, the author notes that federal courts already may consider conspiratorial behavior as an aggravating factor in determining sentences under the Federal Sentencing Guidelines, and argues that mak-ing such a consideration in conjunction with applying the rule of con-sistency effectively punishes criminal behavior and preserves individuals’ constitutional rights.

In this era of unprecedented executive power, congressional oversight of the President is vital in order to maintain the balance of power in the federal government. But what of the opportunity for political mischief from such investigations? Professor Marshall argues that congressional investigations have been used as political weapons because there are few, if any, costs to the legislative branch in taking such action. As such, minimal political capital and, indeed, very little effort is necessary to initiate such investigations.

However, rather than excluding Congress from investigating substantive areas, Professor Marshall’s solution to this problem focuses on process limitations to protect against congressional abuse. The legislature’s powers thus will not be blunted, but sufficient political capital will have to be expended in order to subject the President to investigations. Con-gress will be less likely to engage in abusive inquiries if political costs are imposed for taking up investigations. By choosing to pursue process reform, rather than limiting the areas in which the congressional over-sight may occur, the ability to engage in legitimate and necessary investi-gations is not compromised.

Private residential developments governed by homeowners associa-tions have rapidly proliferated in recent decades. The servitudes that form the backbone of these private developments are usually viewed as autonomy- and value-enhancing private contractual arrangements that are presumptively valid. Unfortunately, the appealing contractual justifi-cation for private land use regimes seems to have shut down many of the usual paths of inquiry into the ability of the resulting arrangements to deliver on consumer preferences. In this article, Professor Fennell seeks to bring the theory surrounding these developments up to speed by focusing on factors that can drive a wedge between homeowner preferences and the private land use regimes that the market provides.

In this essay, Professor Yablon challenges the assumption that behavioral heuristics—such as the availability heuristic—constitute “biases” that necessarily lead to errors in probability judgments. He notes that there are many different concepts of probability and, in many contexts, no agreed-upon method for determining the correctness of inconsistent probability judgments. Yet many legal academics and policymakers ig-nore these complex aspects of probability theory, assuming that statistical or frequentist probabilities are always to be preferred over subjective judgments of probability.

Professor Yablon argues that choosing between frequentist and subjective approaches to probability judgments in policymaking can only be done with great sensitivity to context and the quality of the information availa-ble. He provides examples of current policy debates where statistical probability is to be preferred, such as environmental protection, others where subjective probability judgments are preferable, such as settlement of litigation, and a third important category, including products liability, where neither approach is clearly superior.

In this note, the author addresses the copyright implications of commercially editing copyrighted movies to delete “objectionable” mate-rial in an attempt to reduce exposure to sex, violence, profanity, or other objectionable material. Companies such as CleanFlicks, the best-known provider of edited movies, supply customers with “clean” versions of movies using cut and splice editing and digital filtering to remove “objectionable” material. These third-party editors, as the author calls them, argue that the movie studios, which own the copyrights to these movies, should not dictate what people watch in their own homes. The studios, on the other hand, claim that third-party editors violate their copyrights by copying or altering the content of their movies. Following a brief discussion of copyright law, the author analyzes the validity of the movie studios’ copyright infringement claims against third-party editors and whether the fair use defense applies to this dispute. The author concludes that third-party editing likely constitutes copyright infringement.

Internet consumers have long taken anonymity for granted. In-creases in commerce in cyberspace have created a need for consumer protection measures on the Internet. Digital signatures seek to meet this need in two important ways. First, they provide validation of data and identity to ensure that information has not changed between origin and reception. Second, they validate identity if pseudonyms or other anony-mous processes are not used. This note argues that digital signature laws must be carefully crafted with consumer protection in mind. Problems may arise as governments, both state and federal, opt to serve as both authentication agencies and parties to electronic transactions. Depending on how digital certificates are issued, governments could have the capability to connect actual consumer identity information with digital signatures, thereby defeating the signatures’ intended purpose. In addition, this note compares legislation from several states, as well as European legislation, and suggests that consumers and legislators need to make consumer privacy central to any viable digital signature legislation.

Noting that the risk of malpractice liability poses a significant bar-rier to the provision of volunteer health care in this country, the author analyzes current state and federal legislative approaches designed to overcome the hurdle, including a changed standard of care for malprac-tice liability from simple negligence to gross negligence, governmental indemnification of volunteer providers, and state sponsored malpractice insurance. The author challenges legislators to enhance existing legisla-tion by combining the best aspects of the varied approaches in an effort to increase delivery of medical services to those in need, while at the same time ensuring the protection of uninsured patients from malpractice.

Editor’s Note: Dr. Hattis’s article originally appeared in Volume 2004, Issue 1. Unfortunately, when it was first published, the appendix was not included. In order to rectify this oversight, the article, along with the appendix, are being published in this issue in their entirety. The University of Illinois Law Review apologizes to Dr. Hattis and its readers for this oversight.

Foreword

In the years between Emancipation and Brown v. Board of Educa-tion, African Americans battled against the inequities in education, health care, and economic opportunities advanced by segregation. In this article, the author discusses the African American community’s response to the hostility of white Americans, the fight against Jim Crow oppression, and the fight to preserve African American culture. Creatively channeling their resources, African Americans in the early twentieth century worked within their segregated communities to establish a system of local core values that eventually provided the impetus to challenge the doctrine of segregation in the courts. The author maps the progression of black consciousness from the dismal “nadir” of the 1890s following Reconstruction to the launching of the first of five cases that led to Brown: Briggs v. Elliott. Focusing on the individuals who strengthened their communities even within the confines of segregation, the author suggests that from the local struggles of the African American community in the early twentieth century emerged the “culmination of the African American struggle for freedom” that we now know as Brown.

The Supreme Court’s decision in Brown v. Board of Education was just one event that occurred in a period of economic and educational changes for many groups in the United States. In the midst of these changes, Brown was a “detonating spark” that focused the efforts of the Civil Rights Movement, made the Supreme Court the ally of social rights, increased the use of social science data in government, and prompted a counterreaction from the majority. On its face, the decision in Brown only addresses the impropriety of segregation, but it has served as a springboard for equal rights, not only among African Americans, but also among all other minority groups. In this article, the author discusses the significance of the Brown decision for multiple groups, yet shows how limited Brown has been in dealing with contemporary forms of institutionalized racism.

Despite the enactment of the Fourteenth Amendment in 1868, legal segregation nevertheless remained pervasive throughout the United States in the following nine decades due to various state statutes and federal and state court decisions. Nowhere was the existence of legal segregation more prevalent than in school systems throughout the United States. Segregated schools were common because of the U.S. Supreme Court’s “separate but equal” doctrine set forth in Plessy v. Ferguson. Finally, in 1954, the U.S. Supreme Court, in its landmark Brown v. Board of Education decision, concluded that “in the field of public education the doctrine of ‘separate but equal’ has no place” because “separate educational facilities are inherently unequal.” With that language, the Supreme Court effectively rejected the legality of school segregation.

The implications of the Court’s Brown decision extended beyond the educational system. Professors Feagin and Barnett note that the Court’s Brown decision marked the first time it recognized African Americans as first-class citizens. Additionally, they state that the decision had an important psychological impact on African Americans and provided moral encouragement to people active in the civil rights movement. Further, Brown supplied the legal precedent necessary to dismantle state-created segregation in other areas. Finally, Professors Feagin and Barnett remark that Brown remains a “beacon of liberty” for people throughout the United States and the world seeking to end discrimination in myriad other areas.

Professors Feagin and Barnett argue, however, that despite the positive effects in education and other areas resulting from the Court’s Brown decision, the decision has by no means been successful in dismantling institutionalized racism in American education. They note that although schools may be officially desegregated, they nevertheless remain effectively segregated due to the following: discrimination in schools by administrators, teachers, and students; racial bias in school curriculum; the separation of students into different ability tracks reflecting racial, class, and gender stratification; and the use of standardized testing that contains significant racial and class bias.

While emphasizing linkages to class stratification and income-based housing segregation, Professors Feagin and Barnett argue that the failures in desegregation since Brown are primarily the result of systemic racism, which they define as the “racialized exploitation and subordination of Americans of color by white Americans” that “encompasses the racial stereotyping, prejudices, and emotions of whites, as well as the discriminatory practices and racialized institutions generated for the long-term domination of African Americans and other people of color.” They note that a clear indication of systemic racism has been the unwillingness by both federal courts and presidential administrations to ensure that Brown’s ideals are fully implemented. The authors also argue that recent presidential administrations have failed to develop educational policies that remove the burdens placed on many children by an ineffective, and still segregated, educational system.

In Brown v. Board of Education the Supreme Court held that sepa-rate educational facilities for blacks and whites were inherently unequal. Since Brown, those seeking to avoid desegregation have found a powerful weapon in school vouchers, which enable parents to practice private discrimination with public dollars. The prevailing Supreme Court interpretation of the First Amendment’s Establishment Clause permits the government to support parochial schools so long as it does not effectively establish a state religion or express a preference for one religion over another. Earlier, the Supreme Court in Griffin v. County School Board of Prince Edward County and Green v. County School Board of New Kent County required that states abandon devices like vouchers and tuition assistance when they are used to promote segregation. More recently, though, a line of cases from Board of Education of Central School District No. 1 v. Allen to Zelman v. Simmons-Harris has paved the way for the establishment of voucher programs by allowing government support for religious educational institutions where such support does not have the effect of advancing or inhibiting religion and the assistance is given to a broad class of private individuals whose allocation of the funds is determined by personal choice. The Supreme Court’s approval of such tuition assistance programs portends a new regime of aid to private and religious schools, contributing to the resegregation of American education.

The U.S. Supreme Court announced the constitutional promise of an equal, unified education for African American students by deciding Brown v. Board of Education in 1954, but it would take another forty years before a federal court even addressed the basic question of whether American Indians share a similar right to equal educational opportunities. Meyers v. Board of Education, decided in 1994, is the seminal case addressing the civil rights of American Indians in public education. It is “the Brown v. Board of Indian Country.”

This article examines the legal and historical relationship between American Indians and the federal government to provide an understand-ing of why it took forty years for the promise of Brown to be formally recognized by a federal court and delivered to American Indians. A brief lesson in Indian law will introduce the unique treatment that Tribes have received in the courts. The sui generis nature of federal Indian law may provide some insight into why American Indians were still fighting for the rights recognized in Brown into the end of the twentieth century, long after the decision in Brown had become axiomatic for other racial groups.

While Indian rights are hinted at in the landmark civil rights decisions, few decisions have actually involved American Indians. This article discusses how the reluctance of courts to address Indian civil rights slowed construction on the road to Brown through Indian country.

Finally, the article discusses the decision in Meyers and how the Court and parties brought the promise of Brown to the American Indians of Navajo Mountain in Utah. The article demonstrates how and why the case of American Indian school desegregation gave birth to the unique legal arguments in the Meyers decision. The legal arguments and conclusions are dissected for a full understanding of the leading case on the educational rights of American Indians and its impact on both federal Indian law and education jurisprudence.

In this article, Professors Robert Chang and Jerome Culp examine the state of race in America in the aftermath of the landmark Supreme Court decision of Brown v. Board of Education. Their findings reveal that while Brown established fundamental precedent in the area of race relations, racial inequality remains entrenched in a number of modern social institutions. Chang and Culp analyze this dilemma by focusing on three distinct trends. First, a cycle of inequality is driven by racial dis-parities in wealth and perpetuated by the interlocking systems of educa-tion, housing, family, health care, employment, and criminal justice. Se-cond, civil rights activists often fall short of their goals following Brown due to an overall system of oppression described as civil rights myopia. Finally, racial remediation schemes also face major obstacles as white identity has intensified since Brown. As a result, little has changed in the ten-year window preceding Brown’s fiftieth anniversary and racial inequality remains a persistent problem in America.

In this article, Boyce F. Martin, Jr., Circuit Judge of the Sixth Cir-cuit United States Court of Appeals, reflects upon the Supreme Court’s decision in Brown v. Board of Education and expresses his concern that despite the Court’s message that students should learn in a racially inte-grated environment, little progress, in the last fifty years, has actually been made. Specifically, many schools are still segregated and those schools that have successfully initiated programs to integrate their class-rooms are now beginning to resegregate. Despite this lack of progress, however, Judge Martin believes a ray of hope emerged with the issuance of the Supreme Court’s recent decision in Grutter v. Bollinger. This decision not only reaffirmed Brown’s message that students should learn in an environment where racial integration exists, but also went further by stating that everyone, not just minorities, will benefit from racially integrated educational environments. Judge Martin has confidence that this decision, along with the creation of race-conscious admission programs, will advance and achieve the ultimate goal of Brown.

Public housing developments are overwhelmed by drug sales and incidents of gun violence that often involve nonresident visitors. In an attempt to deal with housing development crime, public housing authorities across the country have compiled so-called ban lists, which threaten named individuals with criminal trespass charges if they enter housing authority property. Ban lists have had a noticeably positive effect on the safety of many communities. At the same time, however, they often indiscriminately bar harmless individuals from visiting housing developments and conflict with the common-law tradition of allowing residents to entertain guests of their choice in their homes.

This note examines the constitutionality of ban list policies. Recognizing the tension between the beneficial and detrimental effects of ban lists, the author argues that courts should uphold them as long as they are narrowly tailored to achieving the goal of fighting crime in public housing. The author examines two possible grounds on which ban lists could be subjected to constitutional scrutiny. First, some of the broadest policies might be held to implicate the fundamental right to freedom of movement. Despite the typical association of the right to freedom of movement with a right to travel between states, current federal case law indicates courts’ willingness to recognize a right to intrastate movement. Recognition of this right could lead to decisions holding that ban lists excluding individuals from all housing developments in a city are unconstitutional.

Second, some ban lists may affect the fundamental right to freedom of association. On that basis, courts may find ban lists that frustrate traditional nuclear family relationships to be unconstitutional. There is a distinction between familial relationships, which are protected by the right to freedom of association, and nontraditional family and nonfamilial relationships, which generally are not. Ban lists cases that involved relationships falling into the latter two categories may have been decided differently if the relationships had been familial in nature.

The author proposes a number of ways for public housing authorities to ensure their ban list policies are narrowly tailored to preventing illegal activity in public housing. In general, the policies should provide basic procedural safeguards to individuals banned from properties, banning should be based on sufficient justification, offenses warranting banning should be clearly enumerated, and ban list policies should recognize an exception for invitees.

There are three distinct crimes under section 2 of the Sherman Act: mo-nopolization, attempt to monopolize, and conspiracy to monopolize. While courts generally require some proof of market power for the first two offenses, courts differ as to whether the market power requirement applies to conspiracy cases. In cases involving “hybrid” single entities, requiring proof of market power in conspiracy cases could effectively re-move such entities from the reach of section 2.

This note argues that courts should not interpret section 2 of the Sherman Act to require proof of market power in conspiracy cases. After briefly examining the history and intent of the Sherman Act, the note proposes that market power should not be required in section 2 conspiracy cases because of the text of section 2 and because intent, not likelihood of suc-cess, is the gravamen of a conspiracy claim. Furthermore, the note stresses that special considerations in cases of hybrid single entities, such as sports leagues, caution against requiring proof of market power in section 2 conspiracy cases. A contrary policy, the note argues, would al-low such entities to freely engage in anticompetitive behavior.