Volume 2010Masthead PDF
Provisions for binding arbitration of disputes are now employed in virtually all kinds of contracts, making arbitration a wide-ranging surrogate for civil litigation. This has also subjected arbitration to unprecedented strains and unparalleled criticism. Once promoted as a means of avoiding the contention, cost, and expense of court trial, binding arbitration is now described in similar terms—“judicialized,” formal, costly, time-consuming, and subject to hardball advocacy. Though “court-like” arbitration has alienated many business users, others strive to make arbitration even more like court trial, as through agreements for expanded judicial review of arbitration awards. Meanwhile, the emergence of mediation and other “thin-slicing” methods for resolving disputes more quickly and effectively has raised serious questions about the value of arbitration and its continuing role in the conflict resolution marketplace.
Additionally, broad judicial enforcement of arbitration provisions in standardized adhesion contracts governing employees and consumers has fueled impassioned debate over the need for regulation of arbitration agreements. The real concerns of reform advocates, lawmakers, legal commentators, and educators have produced strong responses that “spill over” into the realm of arm’s-length business-to-business agreements—often imposing new transaction costs without commensurate benefits.
These developments point to a critical need for more effective exercise of choice by users of arbitration and others whose decisions affect the arbitration experience. The most important difference between arbitration and litigation—and the fundamental value of arbitration—is the ability of users to tailor processes to serve particular needs. In order to make the most of the promise of arbitration, contract planners and drafters must move beyond a monolithic one-size-fits-all view of arbitration and make deliberate process choices based on client goals and priorities. The need for a more nuanced approach also requires planners to strategically assess arbitration’s particular value in a world of expanding process choices. Similarly, those who make or propose laws affecting arbitration and those who prepare tomorrow’s lawyers must look “beyond the monolith” to understand that regulation that is essential in one transactional setting may be detrimental in another.
Investment Indiscipline: A Behavioral Approach to Mutual Fund Jurisprudence
William A. Birdthistle | 2010 U. Ill. L. Rev. 61
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This Term, in Jones v. Harris Associates L.P., the Supreme Court will have the opportunity to resolve doctrinal, econometric, and philosophical divergences over a profoundly important financial system: the investment industry through which almost one hundred million Americans attempt to save more than ten trillion dollars for their retirement. When this case was before the Seventh Circuit, two of the foremost theorists of law and economics, Chief Judge Frank Easterbrook and Judge Richard Posner, disagreed vociferously on competing analyses of this industry. The Supreme Court’s opinion in this case should not only resolve the intricate doctrinal fiduciary issues of the dispute but also have important implications for several major theoretical debates in contemporary American jurisprudence: the permissible constraints—if any—upon determinations of executive compensation; the judicial capacity to evaluate increasingly sophisticated econometric analyses of financial systems; and the growing tension between neoclassical and behavioral economics.
Professor Birdthistle advances a positive account of the economic and legal context of this dispute and argues normatively for a behavioral approach to its resolution. Because of the unique structure and history of the personal investment industry in the United States, the architecture of this segment of the economy is singularly unprotected by beneficial market forces and exhibits significant competitive weaknesses such as broad price dispersion and a negative correlation between fees and performance. The ultimate judicial resolution of this dispute should take account of the behavioral constraints upon individual investors and their advisors to avoid nullifying congressional action and to impose discipline in a vital segment of the U.S. economy.
This Article discusses the contentious topic of the National Collegiate Athletic Association’s (NCAA) status as a tax-exempt organization. In late 2006, Congress asked the NCAA to justify its exempt status, and since that time many have called for a change in that status. Calls for reform cite reasons such as the amount of money paid to Division I football and basketball coaches, the fact that NCAA football and basketball are essentially minor-league systems for the NFL and NBA, and an alleged lack of relation between college athletics and academics. The Article serves two purposes: first, it seeks to clarify the manner in which tax rules apply to the NCAA and universities’ operation of Division I football and basketball programs; and second, it provides a policy-oriented view of whether big-time college athletic programs—and the NCAA—fit into a standard theoretical paradigm for exemption.
The first part of the Article explains that, under the current laws, it would be nearly impossible for the Internal Revenue Service (IRS) to withdraw the NCAA’s tax exemption and the tax exemptions of its member institutions. A more feasible alternative would be to tax Division I athletics revenues using the Unrelated Business Income Tax (UBIT). This option, however, presents its own legal obstacles and, if successful, would likely be a “paper tiger,” as the NCAA and universities would possess little or no taxable net income after applying cost accounting. Further, the disclosures that universities would be required to make under Form 990-T would not approach the level of disclosure desired by reform advocates.
The second part of the Article contends that the tax system should not be changed haphazardly to promote reform of NCAA athletics, and examines whether college sports fall into an existing paradigm for exemption or should be considered a class of their own for tax law purposes. If NCAA athletic programs do not fall into a standard paradigm, Congress would be able to attach conditions to their exemption without damaging established tax principles.
Finally, the Article points out the existence of several regulatory approaches that could be applied to the taxation of college athletics. Those approaches consist of placing conditions upon the use of proceeds from collegiate football and basketball revenues, limiting athletic department expenditures, and mandating enhanced disclosure by the NCAA and its member institutions of financial information as well as the academic progress of student-athletes.
This Article proposes the preliminary judgment as a means for facilitating the settlement of legal disputes. A preliminary judgment is simply a tentative judicial assessment of the merits of a case or any part of a case, based on the same sorts of information that the courts already consider on motions for summary judgment. The difference between a preliminary judgment and a summary judgment is that the court, in a preliminary judgment, would not be limited to deciding issues with which no reasonable jury could disagree. Instead, the court would provide its own judgment on the merits of the case based on the information provided by the parties. A preliminary judgment, once given, would convert into a final judgment after the expiration of a reasonable period of time. The losing party, however, would have the right to object prior to the expiration of the period (with or without explanation), in which case the judgment would be vacated and the case would proceed according to ordinary rules of procedure. Preliminary judgments would increase the prospects of success in settlement bargaining by providing litigants with a credible evaluation of case value: they could offset settlement-defeating party optimism, anchor the parties’ discussions on realistic outcomes, focus attention on basic strategic questions, counteract the danger that attorneys will distort settlements, and enhance the willingness of litigants to accept the outcome. Because preliminary judgments would be announced publicly, moreover, they would provide information to guide future conduct. In point of fact, judges already communicate their provisional views on the merits through a variety of pretrial procedures. The preliminary judgment would represent a more direct, honest, and systematic approach to practices which until now have been employed in less transparent ways.
Book Review Essay
Not a Moral Issue: Same-Sex Marriage and Religious Liberty
Shannon Gilreath | 2010 U. Ill. L. Rev. 205
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Same-Sex Marriage and Religious Liberty is a new book of essays edited by Douglas Laycock, Anthony R. Picarello, Jr., and Robin Fretwell Wilson. The book purports to offer a solution that will give Gays and Lesbians access to the benefits of marriage, while recognizing religious objectors’ rights to oppose gay marriage. This Book Review focuses on the book’s intellectual center, Professor Wilson’s essay, Matters of Conscience: Lessons for Same-Sex Marriage from the Healthcare Context, and Professor Laycock’s Afterword.
In this Book Review, the author shows that Professors Wilson and Laycock’s analysis of the same-sex marriage debate fails to seriously account for equality issues that are at stake. The Fourteenth Amendment does not allow religious objection to justify anti-miscegenation laws. Similarly, Equal Protection demands that we examine the religious justifications for anti-Gay marriage arguments more closely. The author demonstrates that, contrary to Professors Wilson and Laycock’s asser-tions, one cannot easily distinguish between religious objections to interracial marriage, as well as religious justifications for other forms of inequality, and religious objections to Gay marriage. The author proposes we should analyze objections to same-sex marriage in light of group-based equality issues, and not subordinate Gays’ and Lesbians’ collective equality rights to the political power of individual religious objectors.
Growth, Interrupted: Nontherapeutic Growth Attenuation, Parental Medical Decision Making, and the Profoundly Developmentally Disabled Child’s Right to Bodily Integrity
Mary Koll | 2010 U. Ill. L. Rev. 225
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Should parents of a profoundly developmentally disabled child be permitted to permanently terminate their child’s healthy bodily development in order to arguably increase the child’s quality of life? While such a procedure may sound like something out of science fiction, a highly publicized medical journal article released in 2006 described the case of Ashley X, a profoundly developmentally disabled child who received high-dose hormone treatment—along with a mastectomy and a hysterectomy—to permanently stunt her growth and allegedly increase her quality of life. Though the authors of the article presented this type of nontherapeutic growth attenuation as a viable medical option for profoundly disabled children, critics from all over the world characterized the procedure—which came to be known as the “Ashley Treatment”—as a grave and unacceptable human rights violation. Nonetheless, the Ashley Treatment has also been met with support from some, most notably the parents of profoundly disabled children, many of whom have expressed a desire for their own children to undergo similar procedures. This Note explores the question of whether parents should be permitted to choose such interventions on behalf of a child from the perspective of the child’s rights, specifically, the child’s fundamental right to bodily integrity. Following a brief description of the case of Ashley X and the ensuing controversy, the author describes the right to bodily integrity, including its origins, its modern constitutional status, and its application to profoundly disabled children. The author then discusses the general presumption of parental authority to make medical decisions on behalf of children, and the parens patriae power of the courts to intervene in parental medical decision making to protect a child’s rights and promote the best interests of the child. Finally, the author applies the preceding analysis to the Ashley Treatment and similar nontherapeutic, growth-attenuating interventions, concluding that judicial review should be invoked whenever a parent seeks this type of intervention on behalf of a child and explaining that a court rigorously applying the best interests standard should rarely, if ever, find nontherapeutic growth attenuation to be in the best interests of the profoundly disabled child, because the magnitude of harm threatened by permanently terminating the child’s healthy physical development—thus, severely and irreversibly violating the child’s right to bodily integrity—ultimately outweighs any purported benefits.
A Constitutional Door Ajar: Applying the Ex parte Young Doctrine to Declaratory Judgment Actions Seeking State Patent Invalidity
James L. Lovsin | 2010 U. Ill. L. Rev. 265
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"The State has no power to impart to [its officer] any immunity from responsibility to the supreme authority of the United States."
In 2007 alone, universities generated $2 billion in income by licensing their patents. As arms of the state, state universities license with sovereign immunity—state-owned patents are protected from judgments declaring them invalid. This Note proposes that this advantage can be removed by the application of the Ex parte Young doctrine. The author unpacks the doctrine element by element and shows that there are no obstacles to its application to declaratory judgment suits alleging the in-validity of state patents. First, the author explains that the doctrine’s remedial prong would be satisfied because universities create a justiciable controversy as to the validity of their patents when they offer licenses and because neither the Seminole Tribe detailed remedial scheme exception nor the Coeur d’Alene submerged lands exception applies. Second, the author illustrates that the doctrine’s constitutional sovereign immunity prong would be satisfied because patent invalidity is a vi-olation of federal law, and a declaration of patent invalidity is prospective relief. The author offers insight into why the issue has not yet been considered by the Federal Circuit, focusing on the incentives of both the universities and their potential licensees. Finally, the author recommends that the Federal Circuit, en banc, conclude that the Ex parte Young doctrine is avail-able for declarations of state patent invalidity because it is doctrinally sound and justified by policy.
Don’t Just Check “Yes” or “No”: The Need for Broader Consideration of Outside Investment in the Law
Heather A. Miller | 2010 U. Ill. L. Rev. 311
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This Note analyzes the controversial issue of outside investment in law firms. Motivated by concerns of promoting professionalism and independent judgment within the legal community, the ABA Model Rules of Professional Conduct currently prohibit nonlawyer investment, effectively preserving the traditional partnership model of ownership. As increasing competition, explosive global growth, and technological advances have challenged the demand for client-driven relationships in the delivery of legal services, and in light of recent legislation in Australia and the United Kingdom allowing outside investment in law firms, the author determines that the time has come to take another look at the prohibition in the United States.
Recognizing that outside investment has potential benefits and con-sequences, this Note argues that determining whether to allow outside investment is more than a simple “yes” or “no” question. To this end, the author analyzes five investment models, which represent the spectrum of possible vehicles. The first is the traditional ownership model, illustrated by publicly traded Australian law firm Slater & Gordon. A second possibility is a holding company, which the Note explores through the experiences of another Australian firm, Integrated Legal Holdings Limited. More moderate proposals include a minority ownership model and the creation of a legally related derivative security. Finally, the Note considers an alternative to outside investment in law firms—outside investment in individual lawsuits. Against the backdrop of these different models, the author urges the legal community to embrace a broader perspective in further investigating and evaluating the opportunities of outside capital. The author concludes by recommending that the ABA commission an independent study to analyze whether and, if so, how to modify the Model Rules to capture the benefit of outside investment while minimizing ethical concerns.
Climate Change, Carbon Sequestration, and Property Rights
Alexandra B. Klass & Elizabeth J. Wilson | 2010 U. Ill. L. Rev. 363
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This Article considers the role of property rights in efforts to sequester underground hundreds of millions of tons of carbon dioxide (CO2) per year from power plants and other industrial facilities in order to mitigate climate change. This technology, known as carbon capture and se-questration (CCS), could provide deep emission cuts, particularly from coal power generation, on a worldwide basis. In order to widely deploy this technology, future CCS operators must be able to access millions of acres of deep subsurface “pore space” roughly a kilometer below the earth’s surface to sequester the CO2 for hundreds to thousands of years. This Article explores questions relating to ownership of subsurface pore space, physical takings, regulatory takings, and just compensation that will necessarily accompany the implementation of CCS in the United States. In order to accommodate the full range of property rights and takings issues that will arise with CCS, this Article proposes a regulatory framework based in part on the Natural Gas Act to address these issues in connection with subsurface CO2 sequestration.
We Don’t Want to Hear It: Psychology, Literature and the Narrative Model of Judging
Kenworthey Bilz | 2010 U. Ill. L. Rev. 429
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The “narrative” model of legal judging argues that legal decision makers both do and should render judgments by assembling sensible stories out of evidence (as opposed to using Bayesian-type, linear models). This model is usually understood to demand that before one may judge a situation, one must give the parties the opportunity to tell their story in a manner that invites, or at least allows, empathy from the judger. This Article refers to this as the “inclusionary approach” to the narrative model of judging. Using psychological research in emotions and perspective taking and the more intuitive techniques of literary criticism, this Article challenges the inclusionary narrative approach, arguing that, in practice, the law gives equal weight to an “exclusionary approach.” That is, in order to render sound, legitimate legal judgments, the law deliberately limits the sort of stories parties are allowed to tell—and does so on moral grounds, not, or at least not only, to improve the “accuracy” of the legal judgment. That is, as both a descriptive and normative matter, impover-ished narratives can be better than enriched ones in leading decision makers to morally acceptable legal judgments.
“To understand all is to forgive all.” —French proverb
Citations in the U.S. Supreme Court: An Empirical Study of Their Use and Significance
Frank B. Cross, James F. Spriggs II, Timothy R. Johnson & Paul J. Wahlbeck | 2010 U. Ill. L. Rev. 489
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Supreme Court citations are rarely the subject of rigorous analysis. This Article presents an empirical examination of Supreme Court opinion citation practices since World War II, with a focus on the era from the Warren Court through the end of the Rehnquist Court. After theoretically analyzing the role of citations in judicial opinions and their significance, we explain how they may be used as a test of stare decisis and the Court’s projection of power and legitimation of its authority. We measure both the raw number of citations in majority opinions and the significance of the cases cited (using a calculation of their network centrality at the time of the decision). Various factors significantly influence citation frequency and choice, including the type of case. After controlling for these factors, we consider the relative citation practices of the Justices of the Court since the 1950s. This method allows us to find that political legitimation of decisions is a key determinant of citations, but that legal factors also matter. We also explore the citation practices of individual Justices. Our findings are consistent with the conventional wisdom in some instances, but serve to dispel other common beliefs. For example, we find that Justices Black and Douglas showed relatively little devotion to precedents but the Warren Court more generally was concerned about stare decisis. In the recent era, Justice Souter stands out for his citation practices. Finally, we examine the implications, on future citation use, of an opinion’s volume of citations to precedent, and their respective network centrality.
The Prosser Notebook: Classroom as Biography and Intellectual History
Christopher J. Robinette | 2010 U. Ill. L. Rev. 577
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When a former student offered to let me see his grandfather’s Torts notebook, I was intrigued. The seventy-year-old black notebook has developed a patina, but is in remarkably good condition. The sides have a lightly textured surface. The spine, not damaged by cracks, has several small gold stripes running across it. The notebook belonged to a first-year law student named Leroy S. Merrifield during the 1938–39 academic year at the University of Minnesota Law School. Merrifield used it to record notes during his Torts class. His professor was William Prosser.
Because Prosser’s papers likely have been destroyed, Merrifield’s notebook offers a unique “behind the scenes” look at Prosser during a very significant period in his professional development. During 1938–39, Prosser was finishing a draft of the first edition of Prosser on Torts, the most influential treatise ever published on tort law. Furthermore, Prosser’s article legitimizing intentional infliction of emotional distress as an independent tort appeared in the spring of 1939. In addition to insights into these particular projects, the notebook allows a better understanding of Prosser’s place in the intellectual history of twentieth-century legal theory. Prosser’s 1938–39 Torts class took place at the height of the realist influence in the academy. The notebook demonstrates Prosser’s realism in the classroom, as well as his connection to the two major consequentialist torts rationales of the twentieth century: compensation and deterrence. In short, the notebook sheds light on both the origins and the content of one of the law’s most influential thinkers.
This Article accomplishes three things. First, with no biography available on Prosser, the Article provides an account of his life, drawn heavily from archival research. Second, the Article presents new details of several of Prosser’s seminal accomplishments. Third, the Article helps situate Prosser in the jurisprudential development of law in the twentieth century.
Lookism: Pushing the Frontier of Equality by Looking Beyond the Law
James Desir | 2010 U. Ill. L. Rev. 629
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This Note analyzes the legal climate of lookism: discrimination or prejudice on the basis of an individual’s appearance. Appearance-based discrimination is difficult to identify in the real world and few jurisdictions protect against this form of prejudice, although it is often compartmentalized with sexism and racism which are guarded by Title VII of the Civil Rights Act of 1964. The District of Columbia Human Rights Act and a Santa Cruz, California City Council ordinance are some practicing examples of anti-lookism laws. Supporters of these local laws have suggested expanding Title VII to include lookism protection for immutable characteristics, such as height, weight, and natural physical qualities.
This Note argues that Title VII should be amended to include such immutable traits and simultaneously attempt to create sociological change toward greater appearance acceptance. The author states that such a revision would simply require courts to apply Title VII as it currently exists, thus creating no extra burdens on the judicial system. The author further asserts that in order to minimize anti-lookism-protection backlash and the difficulties of capture, the socio-legal world would have to expose the problems of this prejudicial form in order to promote an anti-lookism mentality. Thus, this Note advocates for lookism prevention and greater appearance-based acceptance through the expansion of Title VII protection.
The Demonstration Required to Compel the Administrator to Object Under Title V of the Clean Air Act
Stephanie B. Johnson | 2010 U. Ill. L. Rev. 655
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This Note analyzes the emerging split among the federal circuit courts regarding the type of demonstration a petitioner must make under § 7661d(b)(2) of the Clean Air Act in order to compel the EPA Administrator to exercise his or her nondiscretionary duty to object to the issuance of a Title V permit. Whereas some courts require only a showing based on facts and data that a proposed operating permit does not contain all of the arguably applicable Clean Air Act provisions in order to overturn the EPA Administrator’s decision not to object to the proposed permit, other courts have heightened the required demonstration to essentially require an adjudicated violation before com-pelling the Administrator to object to the issuance of a Title V permit. The author argues that the latter interpretation of “demonstrates” as used in § 7661d(b)(2) strains the statutory language and places too heavy a burden on petitioners, to the detriment of human and ecosystem health. The author suggests EPA rulemaking as a solution to clarify the type of demonstration required under § 7661d(b)(2). The author concludes that a flexible standard that allows a petitioner to compel the Administrator to object when the facts and data suggest that arguably applicable Clean Air Act provisions are not included in the proposed Title V permit should be implemented to end the discord in the federal circuit courts.
:o OMG They Searched My Txts: Unraveling the Search and Seizure of Text Messages
Katharine M. O’Connor | 2010 U. Ill. L. Rev. 685
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With billions sent each month, more and more Americans are using text messages to communicate with each other. Yet when it comes to protecting the privacy of these messages, courts, legislators, and commentators have struggled to apply outdated statutes and common law doctrine to the realities of this new technology. Exploring the ever-present tension between privacy concerns and law enforcement tactics, this Note examines the privacy issues presented by text messaging technology, focusing on the ability of criminal defendants to suppress text messages seized without warrants.
The author begins by briefly describing the technology behind text messaging and then outlines the statutory protections Congress has given electronic communications. The Note then turns to the Supreme Court, describing the relevant Fourth Amendment doctrine that the Court has developed and noting the different standards that have been applied to the search and seizure of oral communications, letters, and containers. The author next analyzes how the lower courts have tried to fit searches of text messages into these frameworks, noting the insufficiency of statutory protections and the inconsistencies that occur when courts analogize searches of cell phones to searches of containers or the seizure of text messages to the seizure of letters. The author ar-gues that text messages are best analogized to spoken, rather than written, communications and presents a test based on the plain view doctrine that would allow law enforcement officers to seize and search a cell phone if they have probable cause to believe that it contains evidence of a crime. The author recommends the adoption of this probable cause approach, arguing that it provides the best balance between a cell phone user’s privacy interests and the interests of law enforcement.
Reconciling the Irreconcilable: Calculating a Debtor’s Projected Monthly Income Under § 1325(b) in Light of the BAPCPA Amendments
Katherine L. Swise | 2010 U. Ill. L. Rev. 719
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With unemployment levels soaring to record levels, bankruptcy is becoming an increasingly common occurrence, placing even more emphasis on fairness in bankruptcy proceedings. This Note addresses a provision of chapter 13 of the Bankruptcy Code that requires debt-ors to contrib-ute all of their disposable income to the chapter 13 plan. Specifically, the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act added a definition of disposable income that appears to require an income calculation based on average income for the six months prior to the bankruptcy filing, which contradicts language in the rest of that section that appears to require a consideration of what the debtor’s income will actually be during the three-or-five-year partial repayment plan. Some courts ignore debtors’ actual income during the plan and require a strict adherence to the six month historical average, which has the effect of either making the plan unconfirmable or forcing debtors to pay based on income they may no longer receive. This Note ex-plores the efficacy of various treatments of the section of the Bankruptcy Code which requires such contribution of disposable income under a partial repayment plan. The author ultimately recommends that courts adopt a hybrid approach, considering the debtor’s actual income to be received during the plan period while also using the Code’s definition of current monthly income to calculate income for plan purposes.
More than forty-six million Americans are uninsured, and many more are seeking government assistance, which makes congressional spending for federal programs a significant issue. Federal funding often comes with prerequisites in the form of statutory conditions. This Article examines the impact that conditions placed on federal healthcare spend-ing have on the individuals who rely on that spending by exploring the ongoing disconnect between Spending Clause jurisprudence and women’s reproductive rights. The first Part reviews the foundational Supreme Court precedents and places them in context from both a statutory and theoretical perspective. The second Part studies what the author denom-inates “pure funding statutes” and “conscience clause funding statutes.” The third Part explores the contours of conditional spending jurispru-dence in an effort to determine where individual protection may fit within the existing conditional spending jurisprudence. The Article concludes that the Supreme Court could protect the interests of individuals if its ex-isting conditional spending test is applied in full, which has not been the Court’s practice. The Article also concludes that, given the makeup of the Roberts Court and the balance of Congress, the better solution could be legislative constitutionalism. In other words, Congress should remove these funding limitations from legislation—not only because such limita-tions may be unconstitutional but also because they represent an ongoing disconnect in the law that aggrandizes the spending power.
Nobody’s Fools: The Rational Audience as First Amendment Ideal
Lyrissa Barnett Lidsky | 2010 U. Ill. L. Rev. 799
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The premise of the First Amendment is that the American people are neither sheep nor fools . . . . Given the premises of democracy, there is no such thing as too much speech.
Assumptions about audiences shape the outcomes of First Amend-ment cases. Yet the Supreme Court rarely specifies what its assumptions about audiences are, much less attempts to justify them. Drawing on lit-erary theory, this Article identifies and defends two critical assumptions that emerge from First Amendment cases involving so-called core speech. The first is that audiences are capable of rationally assessing the truth, quality, and credibility of core speech. The second is that more speech is generally preferable to less. These assumptions, which I refer to collec-tively as the rational audience model, lie at the heart of the marketplace of ideas metaphor, which has long been a target of criticism among First Amendment scholars. Now, however, cognitive psychology and behav-ioral economics provide empirical evidence that the assumptions of the rational audience model are demonstrably false in some commonplace settings. This Article nonetheless contends that behavioral economics has not yet made the case for jettisoning the rational audience model in the realm of core speech. As the Supreme Court has recognized, a legal test that looks at the actual effects of speech would be cumbersome and ex-pensive to apply, and would therefore chill speech, but there are even more compelling reasons to adhere to a test focused on the reasonable in-terpretation of core speech. The rational audience model constrains pa-ternalistic speech regulation, thereby safeguarding individual autonomy and the foundations of democratic self-governance. More-over, the ra-tional audience model prevents public discourse from being reduced to the level of the least educated or least sophisticated audience member. The model calls on citizens to raise their cognitive capacities to meet the demands of public discourse, and it serves as a check on the government’s increasingly powerful ability to drown out other speakers in that discourse. This Article concludes that the rational audience model repre-sents a flawed but worthy ideal.
Shadows on the Cathedral: Solar Access Laws in a Different Light
Troy A. Rule | 2010 U. Ill. L. Rev. 851
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Unprecedented growth in rooftop solar energy development is drawing increased attention to the issue of solar access. To operate ef-fectively, solar panels require unshaded access to the sun’s rays during peak sunlight hours. Some landowners are reluctant to invest in rooftop solar panels because they fear that a neighbor will erect a structure or grow a tree on nearby property that shades their panels. Existing statu-tory approaches to protecting solar access for such land-owners vary widely across jurisdictions, and some approaches ignore the airspace rights of neighbors. Which rule regime for solar access protection best promotes the efficient allocation of scarce airspace, within the con-straints of existing law? This Article applies Calabresi and Melamed’s “Cathedral” framework of property rules and liability rules to compare and analyze existing solar access laws and to eval-uate a model solar ac-cess statute recently drafted under funding from the United States De-partment of Energy. Surprisingly, the Article concludes that a statute implementing the Cathedral model’s seldom-used “Rule Four” is best suited for addressing solar access conflicts.
According to the traditional view, the shareholders own the corpo-ration. Until relatively recently, this view enjoyed general acceptance. Today, however, there seems to be substantial agreement among legal scholars and others in the academy that shareholders do not own corpo-rations. In fact, the claim that shareholders do own corporations often is dismissed as merely a “theory,” a “naked assertion,” or even a “myth.” And yet, outside of the academy, views on the corporation remain quite traditional. Most people—not just the public and the media, but also politicians, and even bureaucrats and the courts—seem to believe that the shareholders do, in fact, own corporations.
Why this disconnect? I believe that contemporary scholarship has done a better job of critiquing shareholder ownership than of disproving it. In this Article, I provide a defense of the traditional view by evaluat-ing many of the arguments commonly raised against shareholder owner-ship and showing how they fall short. I then explain why the issue mat-ters. As a theoretical matter, the issue of ownership is necessary to a proper understanding of the nature of the corporation and corporate law. As a practical matter, it is an important consideration in the allocation of rights in the corporation: if shareholders are owners, then the balance of rights will tip more heavily in their favor, and against others, than if they are not. Ownership may not settle any specific question of corporate governance, but it will make a significant difference in the analysis. Be-cause the issue of ownership has the potential to shape all of corporate law and direct the very purpose of corporations, it is of utmost im-portance.
Scholarly criticism of standing doctrine is hardly new, but a core problem with standing jurisprudence remains overlooked: How do parties challenging administrative decisions factually prove that they have standing on appeal when appellate courts normally do not conduct fact-finding? This Article attempts to tackle that problem. It combines a four-pronged normative procedural justice model with an empirical study of appellate cases to conclude that (1) although this issue arises in a relatively narrow set of cases, the number of such cases is growing and (2) existing judicial solutions to the problem are deficient. Thus, after exploring several options—including the possibility of abandoning the current standing test—we suggest that appellate courts should, as the D.C. Circuit currently does, require all petitioners to address standing in their opening brief. In addition, courts should require petitioners who are not directly regulated by the agency action in question to submit ad-ditional evidence to support their standing claim. Here, courts must be careful to separate facts from law. But if these preliminary submissions show there is a factual dispute on any element of standing, the court should refer the dispute to a magistrate judge, who will hold a hearing on the disputed issues and provide a report and recommendation to the appellate tribunal.
’Til Death Do You Part . . . and This Time We Mean It: Denial of Access to Divorce for Same-Sex Couples
Colleen McNichols Ramais | 2010 U. Ill. L. Rev. 1013
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During the last decade, the debate over same-sex marriage has re-sulted in the increasing recognition of same-sex unions in several states as well as specific prohibitions against the recognition of such unions in other states. Many gay couples have travelled from their home states that do not allow same-sex marriage to be married in states that do. But if these couples later decide to separate, they are often confronted with an unanticipated problem: residency requirements in most states’ divorce laws mean that they cannot simply go back to the state in which they were married to institute divorce proceedings and they cannot dissolve their bond in their home state if that state does not recognize their union as valid to begin with. This Note explores the issues posed by this dilemma, proposing that it could be solved if all states provided a forum for dissolving same-sex unions, even if they do not choose to recognize them as valid marriages.
The author begins by outlining the current state of the law regard-ing same-sex relationships in the United States. Federal and state laws passed in the last few years have prohibited or allowed recognition of same-sex unions; this causes jurisdictional issues that arise from residen-cy requirements in divorce laws. The Note provides an analysis of the conflict-of-law problems posed by same-sex couples seeking divorces in states that do not recognize their marriages and the constitutional issues raised by court decisions refusing to grant these couples divorces. Su-preme Court due process decisions regarding impermissible restrictions on access to divorce should make such refusals unconstitutional. In con-clusion, states have an obligation to provide a forum for dissolution of same-sex marriages contracted elsewhere. This forum can be provided without forcing states to recognize the validity of such unions.
DSHEA’s Failure: Why a Proactive Approach to Dietary Supplement Regulation Is Needed to Effectively Protect Consumers
Richard E. Nowak | 2010 U. Ill. L. Rev. 1045
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In 1994, Congress enacted the Dietary Supplement Heath and Edu-cation Act (DSHEA), the first distinct regulatory scheme for dietary sup-plements sold in the United States. Although DSHEA is a congressional milestone as the first act to specifically address dietary supplements, it remains inadequate. DSHEA, as operated through the Food and Drug Administration (FDA), fails to adequately protect consumers from unsafe dietary supplements, such as ephedra, L-tryptophan, and Hydroxycut. Collectively, these dietary supplements have caused numerous illnesses and deaths. Under DSHEA manufacturers are required to report certain facts to the FDA, such as whether a new dietary ingredient is reasonably expected to be safe. Additionally, manufacturers are required to report serious adverse events associated with a dietary supplement. Until re-cently, however, the FDA retained the burden of proving that a dietary supplement was unreasonably risky. Consequently, dangerous products remained on the shelves for many years.
The European Union’s Food Supplements Directive is much more restrictive than DSHEA. The Food Supplements Directive established a “positive list” that enumerates the permissible vitamins, minerals, and other ingredients permitted to be used in dietary supplements. This Note proposes that Congress amend DSHEA to incorporate several provisions of the Food Supplements Directive to better protect American consumers from the dangers associated with unsafe dietary supplements. The author argues that DSHEA limits the FDA’s ability to protect consumers and Congress should adopt an intermediate approach to dietary supplement restriction. This approach would implement additional premarketing re-quirements through a three-tier regulatory system, treating dietary sup-plements differently based on their marketing dates and potential risks. This regulatory scheme would strike a balance between consumer access and safety and would help prevent additional dietary supplement-related tragedies.
To Defer or Not to Defer: RESPA, HUD, and the Section 8(b) Circuit Split
Timothy A. Slating | 2010 U. Ill. L. Rev. 1083
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As the United States’ economy struggles in the wake of the recent residential real estate market implosion, scholars, commentators, and av-erage citizens alike continue to debate the relative blameworthiness of uninformed consumers, overzealous lenders, and lackluster federal regu-lation as contributing causal factors. In light of the backlash in the na-tional media against predatory lending practices, it might be surprising to some that there is still only one federal remedial statute that specifically regulates residential real estate settlements—the Real Estate Settlement Procedures Act of 1974. Perhaps even more surprising is that this Act, tailored to prevent abuses in the settlement process, contains blatant ambiguities that make it difficult in many cases to ascertain whether a service provider has violated its terms.
This Note analyzes those ambiguities and the resulting split of au-thority among the federal courts of appeals. The principle question ex-plored in this Note is whether section 8(b) of the Real Estate Settlement Procedures Act of 1974 prohibits a single service provider from charging a purely unearned fee in connection with a federally related mortgage. There are several critical ancillary issues that must also be addressed in the search for a resolution that is faithful both to the language and intent of the statute as well as the analytical methodology mandated by the Su-preme Court of the United States. Such issues include the degree of def-erence to accord the U.S. Department of Housing and Urban Develop-ment’s (HUD) interpretations of the statute and whether the Act prohibits overcharging for services in the settlement process. To this end, the au-thor identifies three types of unearned fees that could potentially be pro-hibited by the Act: purely unearned fees, markup fees, and overcharge fees.
After a detailed and critical analysis of the positions advanced by HUD and the courts of appeals, the author concludes that because the text of the statute is ambiguous and because neither the structure of the statute, its stated purposes, nor its legislative history are dispositive of the issue, courts should follow the guidance of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. and accord complete deference to HUD’s interpretation, which advocates that a single service provider charging purely unearned fees violates the Act. The author urges, how-ever, that overcharge fees, while arguably within the purview of the stat-ute according to a plausible plain-language interpretation, are not pro-scribed by the Act based upon the clear legislative intent to avoid becom-ing price control regulation. Finally, the author concludes that whether markup fees violate section 8(b)’s prohibitions must be analyzed on a case-by-case basis, the standard being whether the markup fee was charged for services that were actually rendered.
Unguarded Indians: The Complete Failure of the Post-Oliphant Guardian and the Dual-Edged Nature of Parens Patriae
Gavin Clarkson & David DeKorte | 2010 U. Ill. L. Rev. 1119
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Indian Country is the only location in the United States where the race of both the victim and the offender are relevant for purposes of ju-risdiction and prosecution. As a result, American Indian women and children are victimized at astonishingly higher rates than the rest of soci-ety, primarily by non-Indian offenders. Pedophiles have found employ-ment as teachers in Bureau of Indian Affairs schools even after being caught molesting Indian children, and their predation of Indian children has continued with little or no fear of prosecution. American Indian fe-males are victims of violence more than two and a half times the national average. One-third of all Indian women will be raped in their lifetime. What is even more troublesome is that in more than ninety percent of the-se cases, the offender is a non-Indian.
In twenty-first century America, how is it that the race of the perpe-trator and victim determines the availability of justice on Indian reserva-tions? The fault lies with both Congress and the Supreme Court, which have together created a jurisdictional void on most Indian reservations. If a non-Indian assaults an Indian, the tribe cannot prosecute, and neither can the state; only the U.S. Attorney can prosecute. This void allows any non-Indian offender to commit a crime on a reservation with a much higher probability of remaining free than anywhere else in the United States.
Although this situation has been roundly criticized for more than three decades, nothing has been done to solve the problem. This Article suggests that parens patriae, the very legal doctrine originally used to subjugate Indian Country, can instead be used by tribes to restore their inherent sovereignty and finally provide the necessary protection for trib-al members.
Venture debt, or loans to rapid-growth start-ups, is a puzzle. How are start-ups with no track records, positive cash flows, tangible collat-eral, or personal guarantees from entrepreneurs able to attract billions of dollars in loans each year? And why do start-ups take on debt rather than rely exclusively on equity investments from angel investors and ven-ture capitalists (VCs), as well-known capital structure theories from cor-porate finance would seem to predict in this context? Using hand-collected interview data and theoretical contributions from finance, eco-nomics, and law, this Article solves the puzzle of venture debt by reveal-ing that a start-up’s VC backing and intellectual property substitute for traditional loan repayment criteria and make venture debt attractive to a specialized set of lenders. On the firm side, venture debt helps entrepre-neurs, angels, and VCs avoid dilution, improves VC internal rate of re-turn, assists VCs in monitoring entrepreneurs, and follows from capital structure theories after the first round of VC funding.
According to a wide variety of scholars, scientists, and policymak-ers, neuroscience promises to transform law. Many neurolegalists—those championing the power of neuroscience for law—proceed from problematic premises regarding the relationship of mind to brain. In this Article, Professors Pardo and Patterson make the case that neurolegal-ists’ accounts of the nature of mind are implausible and that their conclusions are overblown. Thus, neurolegalists’ claims of the power of neuroscience for law cannot be sustained. The authors discuss a wide array of examples, including lie detection, criminal law doctrine, economic decision making, moral decision making, and jurisprudence.
David C. Baum Memorial Lecture
Footnote four in the Supreme Court’s opinion in United States v. Carolene Products Co. is the most famous footnote in the Court’s history. The footnote embraces an attractive theory of judicial review: that the role of the Court is to correct defects in the democratic political process but otherwise to allow important decisions to be made by the elected branches of government. The footnote marked the end of the pre-New Deal era when the Court was hostile to social welfare and regulatory leg-islation, and it foreshadowed the Warren Court’s attack on segregation and expansion of constitutional rights.
Nonetheless, footnote four has been subject to telling criticisms. It seems to reflect a naïve view of the ability of the text of the Constitution to resolve controversial questions. More important, the footnote requires the courts to assess the political power of different groups in society—something that judges do not seem well equipped to do. The footnote’s implicit account of which groups are likely to lack political power may be fundamentally mistaken. And the footnote falls far short of its objective of keeping the courts away from controversial political issues. One can fairly ask whether the Carolene Products approach, however fruitful it may have been in mid-twentieth-century America, no longer has a role to play in constitutional law.
But is there a better way to think about what the Court should do in constitutional cases? The theory of the Carolene Products footnote uni-fies some of the greatest successes in the Court’s history: Brown v. Board of Education, the “one person, one vote” decisions, and the expansion of the free speech rights of political dissidents. For all its weaknesses, the Carolene Products footnote identifies an objective and a set of standards by which the Court’s work can be judged. And, perhaps most important, no one seems to have come up with a better approach.
CPR: How Jacobsen v. Katzer Resuscitated the Open Source Movement
R. Michael Azzi | 2010 U. Ill. L. Rev. 1271
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Although the open source software movement is growing in popu-larity and acceptance, the fact remains that the legal rights of open source software developers remain largely unknown. The Federal Cir-cuit’s landmark opinion in Jacobsen v. Katzer, however, which held that open source licenses are enforceable under both state contract law and federal copyright law, was a landmark victory for the open source move-ment. This Note analyzes Jacobsen and discusses how it infused new life into the open source movement. The author first defines “open source,” explains the theory behind the open source movement, and presents the most commonly used open source licenses. Next, the author discusses the benefits and the drawbacks of enforcing open source licenses under state contract law and federal copyright law, analyzes the Jacobsen decision, and illustrates the impact Jacobsen may have on software licensing. Fi-nally, the author recommends how courts, open source licensors, and open source licensees should act in light of the Jacobsen decision.
From Stalin to Bin Laden: Comparing Yesteryear's Anti-Communist Statutes with the Public Employer Provision of the Ohio Patriot Act
Gustavo Otalvora | 2010 U. Ill. L. Rev. 1303
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In the beginning decades of the twentieth century, membership in communist organizations in the United States began to increase signifi-cantly. Governing bodies across the country, worried that members of these organizations were a threat to national security, responded by en-acting laws that attempted to deter people from participating in these, of-ten legitimate, organizations. These statutes, however, failed to take into account the right to association guaranteed in the First Amendment, and because of this, many were invalidated by the Supreme Court of the Unit-ed States because they were unconstitutionally overbroad and violated the doctrine of due process.
The start of the twenty-first century saw a new threat to national se-curity emerge—terrorism, illustrated most horrifically in the terrorist at-tacks on September 11, 2001. And again, state and federal governments reacted by enacting laws attempting to combat terrorism and prohibiting people from assisting or associating with groups that were thought to be supporting terrorism. This Note argues that like the anti-communist laws of the early twentieth century, these anti-terrorism laws similarly imper-missibly restrict freedom of association and should similarly be held un-constitutional.
The author focuses on the Ohio Patriot Act, which has not yet been challenged on constitutional grounds. This Note outlines the relevant doctrines and arguments that courts have used to hold both the early twentieth-century anti-communism laws and certain more recent federal anti-terrorism laws unconstitutional. The author then applies these doc-trines to the Ohio Patriot Act and argues that if challenged, it should be held unconstitutional by the Supreme Court of the United States. The author does acknowledge, however, that prohibiting people from assisting known terrorist organizations is a legitimate state goal, and so the author concludes by suggesting amendments Ohio could make to its Patriot Act that would accomplish this goal, while still complying with constitutional requirements.
Animal Law Evolution: Treating Pets as Persons in Tort and Custody Disputes
Christopher D. Seps | 2010 U. Ill. L. Rev. 1339
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Despite the fact that pets play an important and irreplaceable role in the lives of many people in modern society, the law continues to treat all animals—including pets—as property. This treatment is especially troubling in tort and custody cases, where the relationship between a pet and its owner is often at issue. The author examines the inconsistent treatment of animals under the law and the relatively recent develop-ments in society’s view and treatment of animals, ultimately arguing that the law needs to adapt to the changes in the way society views animals by treating pets as persons in particular cases. Specifically, the author pro-poses that animals be treated as persons only in tort or custody disputes where the animal is an anthropomorphic pet that has formed a strong emotional bond to its owner resulting in the owner’s treatment of the pet as a person.
Bankruptcy Reorganizations and the Troubling Legacy of Chrysler and GM
Ralph Brubaker & Charles Jordan Tabb | 2010 U. Ill. L. Rev. 1375
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The Chrysler and General Motors (GM) bankruptcy reorganizations represent the culmination of a sea-change in corporate restructuring practice that has occurred largely over the course of just the past decade. A bankruptcy reorganization has traditionally been effectuated though a chapter 11 plan of reorganization, with elaborate requirements for dis-closure, creditor voting, and allocation of stakes in the reorganized debt-or entity’s new capital structure among creditors and owners. Such an internal boot-strap reorganization, though, is on the decline, and many reorganizations are now accomplished through a relatively expeditious going-concern sale of the debtor’s business and assets to a third-party purchaser, with a subsequent distribution of the proceeds to creditors and shareholders in accordance with their relative priority rights.
What Chrysler and GM vividly illustrate is that there actually is no clean, clear distinction between reorganization by “plan” and reorgani-zation by “sale”—through the wonders of sophisticated transaction engi-neering, each can be the precise functional equivalent of the other. The acute danger this presents, and that actually came to pass in the GM case, is that a nominal “sale” structure can be used to effectuate a purely internal boot-strap reorganization that distributes the value of the reorganized debtor entity among creditors in a manner that indisputably contravenes their relative priority rights in the debtor’s assets. Indeed, when examined in the context of a longer historical perspective on corporate reorganizations, one can readily discern that what transpired in GM (and what the Second Circuit’s Chrysler opinion fully sanctions) is precisely what the Supreme Court prohibited in a series of decisions in the late 1800s and early 1900s, which formed the basis for chapter 11’s codification of creditors’ priority rights in corporate reorganizations.
Contrary to the received wisdom regarding the implications of Chrysler and GM, their combined effect foretells the literal death of the fundamental distributive principles that are the essence of bankruptcy law and that have been the bedrock of bankruptcy reorganizations for at least a century. Moreover, no one (and particularly not the judges presiding over those cases) seems to appreciate that fact! Amazingly, we find our-selves in the midst of a sub silentio destruction of the very core of bank-ruptcy reorganization law.
Her Last Words: Dying Declarations and Modern Confrontation Jurisprudence
Aviva Orenstein | 2010 U. Ill. L. Rev. 1411
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Dying declarations have taken on increased importance since the Supreme Court indicated that even if testimonial, they may present a unique exception to its new confrontation jurisprudence. Starting with Crawford v. Washington in 2004, the Court has developed strict rules concerning the use of testimonial statements made by unavailable declar-ants. Generally, testimonial statements (those made with the expectation that they will be used to prosecute the accused) may be admitted only if they were previously subject to cross-examination. The only exceptions appear to be dying declarations and forfeiture by wrongdoing when the accused intentionally rendered the declarant unavailable.
This Article argues that the dying declaration merits examination for two important reasons. First, its status as an exception to the Court’s new confrontation rules seriously undermines the Court’s dramatic new interpretation of the Confrontation Clause and demonstrates the internal contradictions of the Court’s originalist approach. Second, the dying declaration exception presents one of the few remaining ways in which testimonial statements by absent victims of domestic violence can be heard.
Remarking on the prominence of women both in the Court’s recent confrontation jurisprudence and in the dying declaration case law, this Article examines the role of women’s voices and the means by which those voices are either excluded from or invited into the courtroom. The Article also explores the policy issues stemming from the admission of unconfronted statements by victims of femicide. It attempts to balance respect and justice for victims with fairness to the accused and argues that dying declarations by victims of domestic violence possess unique qualities that justify a limited exception to the confrontation right.
Public Interest(s) and Fourth Amendment Enforcement
Alexander A. Reinert | 2010 U. Ill. L. Rev. 1461
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Fourth Amendment events generate substantial controversy among the public and in the legal community. Yet there is orthodoxy to Fourth Amendment thinking, reflected in the near universal assumption by courts and commentators alike that the amendment creates only tension between privately held individual liberties and public-regarding interests in law enforcement and security. On this account, courts are faced with a clear choice when mediating Fourth Amendment conflicts: side with the indi-vidual by declaring a particular intrusion to be in violation of the Constitution or side with the public by permitting the intrusion. Scholarly literature and court decisions are accordingly littered with references to the “costs” to society of enforcing the Fourth Amendment in favor of individual claimants. Taking the “public interest” seriously in this framework predictably favors government intrusions.
This Article challenges this dichotomous approach to Fourth Amendment interpretation by identifying a new dimension of the public’s interest: important collective values that are in harmony, rather than in tension, with individual liberties. The multidimensional approach ad-vanced here recognizes that there are many kinds of public interests, some of which are advanced and some of which are impeded by Fourth Amendment intrusions. Drawing on First Amendment and Due Process Clause jurisprudence, empirical data, and historical materials, this Arti-cle uses as examples two categories of collective interests—participatory pluralism and efficient and accurate administration of the criminal justice system—that are implicated by Fourth Amendment questions but are ignored by the Supreme Court’s current jurisprudence. If the Court is to take the public’s interest seriously, it needs a Fourth Amendment jurisprudence that takes into account these interests, among others, and acknowledges the reality that the “public interest” is multifaceted.
Local government law has fallen behind the times. Over the past two decades, economists have developed a deep understanding of “ag-glomeration economics,” or the study of how and why mobile citizens and firms locate in cities. Their work argues that people decide to move to cities because of the reduced transportation costs for goods, increased labor market depth, and intellectual spillovers cities provide—that is, in-dividuals and firms locate in cities in order to get the benefits of being near one another. Economically minded local government law scholars have largely ignored this burgeoning literature and instead have contin-ued to examine exclusively a separate set of benefits people get from their location decisions, the gains from “sorting.” As analyzed in the well-known Tiebout model, individuals move between local governments in a region in order to receive public policies that fit their preferences.
This Article seeks to develop the framework for a modern law and economic method for analyzing local government law. Specifically, it claims that there is an inverse relationship between the gains from ag-glomeration and sorting. Having many small local governments, and en-abling individuals to choose their local public policies by sorting among them, affects the organization and density of people in metropolitan are-as, creating movement away from economically optimal location deci-sions. Sorting thus reduces agglomerative efficiency. Similarly, the ex-istence of agglomerative gains means that individuals are making location decisions for reasons other than matching their preferences for public policies. Agglomeration, therefore, causes a reduction in the effi-ciency of sorting.
States face a trade-off between maximizing agglomerative and sort-ing efficiency in deciding how much power, and which responsibilities, to allocate to local governments. The need to balance these two conflicting sources of efficiency and changes in the nature of agglomerative gains over the last hundred years explains a great deal about the history of American local government law, current allocations of power between local governments and state legislatures, and judicial decisions about lo-cal governmental power. Further, understanding the systemic failures in the ways states balance this trade-off suggests a way to determine the proper role for the federal government in policy areas, like housing and transportation, that are primarily regulated at the local level.
Best Let Sleeping Presumptions Lie: Interpretation of "Center of Main Interest" Under Chapter 15 of the Bankruptcy Code and an Appeal for Additional Judicial Complacency
Benjamin J. Christenson | 2010 U. Ill. L. Rev. 1565
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After the 2005 Bankruptcy Abuse Prevention and Consumer Protec-tion Act (BAPCPA) changes to the Bankruptcy Code, debtors undergoing foreign bankruptcy proceedings must show that their bankruptcy is taking place in their “center of main interest” (COMI) in order to receive the fullest cooperation from courts in the United States. This provision was intended to prevent forum shopping and abuse of bankruptcy havens. The Code does not, however, define COMI and so U.S. courts have been forced to develop a common law definition, drawing from international and European antecedents that also use the term.
This Note briefly summarizes the statutory provisions enacted as part of BAPCPA and provides background to the challenges of interpret-ing COMI. Then it discusses the few U.S. cases that have squarely ad-dressed the COMI issue. Finding that courts have adopted a broad view of their own powers to investigate and challenge debtors on the location of their COMI, this Note concludes by arguing that courts should gener-ally not use their powers and instead should defer to a bankruptcy venue that both debtor and creditors can agree on.
The Confrontation Clause and Pretrial Hearings: A Due Process Solution
Christine Holst | 2010 U. Ill. L. Rev. 1599
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Despite the recent crop of Supreme Court cases addressing the Con-frontation Clause of the Sixth Amendment, many issues regarding the ap-plication of the Confrontation Clause remain unresolved. In this Note, the author articulates and analyzes one such lingering question: whether the Confrontation Clause applies to pretrial hearings, and if so, to what extent. After describing the relevant Supreme Court precedent—including the current state of Confrontation Clause jurisprudence—the author examines the various ways lower courts have interpreted and ap-plied that precedent in determining whether the Confrontation Clause applies prior to trial. The author then articulates three potential ap-proaches to applying the Confrontation Clause to pretrial hearings, yet ultimately concludes that the preferable means of reconciling Supreme Court precedent with the necessity of protecting criminal defendants’ confrontation rights prior to trial is to analyze such questions under a due process—rather than a Confrontation Clause—framework.
Returning to Reasonableness: The Argument Against Expanding Investigatory Searches and Seizures to Completed Misdemeanors
Daniel S. Lohse | 2010 U. Ill. L. Rev. 1629
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A police officer may initiate a Terry stop and perform a search and seizure when he has a reasonable suspicion that a crime is presently be-ing committed. Courts are currently split over whether a completed mis-demeanor can form the reasonable suspicion required for a search and seizure. This Note surveys the history of search and seizure cases leading up to Terry v. Ohio, examines the contemporary Terry stop, and analyzes United States v. Hensley, which expanded Terry to completed felonies. The author examines the three-to-one circuit split with the Eighth, Ninth, and Tenth Circuits applying factual analysis to stops based on completed misdemeanors and the Sixth Circuit opining that these stops are per se unreasonable. If offense designation plays a role in justifying a Terry stop, the classification of crimes into felonies and misdemeanors allows the legislature to play a role in the application of Fourth Amendment rights. This also places significance on the meaning of “unreasonable” searches and seizures, which are prohibited by the Fourth Amendment of the Constitution. Additionally, the expanded authorization of searches and seizures based on less than probable cause can result in an increased risk of police misconduct. Consequently, resolution of this circuit split is necessary for the protection of civil rights.
This Note argues that the Supreme Court must address the circuit split by adopting a bright-line rule that searches and seizures for com-pleted misdemeanors with less than probable cause are unreasonable. The author reasons that, based on the meaning of probable cause, expan-sion of Terry is unnecessary; and furthermore, Terry is meant to be nar-rowly applied. Thus, this Note calls for a per se rule that Terry stops based on completed misdemeanors are unreasonable within the meaning of the Fourth Amendment.
It is easy to make light of insistence on scrupulous regard for the
safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.