Volume 2012Masthead PDF
A Positive Political Theory of Rules and Standards
Frank Cross, Tonja Jacobi & Emerson Tiller | 2012 U. Ill. L. Rev. 1
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How judges choose between rules and standards fundamentally shapes case outcomes and the development of broader doctrine. While the literature has much to say about the relative merits of rules versus standards, it has largely failed to produce a comprehensive explanation of how judges make that choice. This Article takes a novel approach, using Positive Political Theory to examine the incentives of higher court judges and the information available to them about how lower court judges will likely use those doctrinal tools. By taking seriously both how substantive and ideological judicial preferences shape the choice over doctrinal form as well as the value that judges place on legal obedience, we bridge the divide between the overt cynicism of legal realism and the credulity of much of the rules-standards debate.
This Article identifies the dominant factors in judicial decision making, at both the higher and lower court level—legal obedience and political ideology. Within that framework, we show how six factors determine higher court choice over rules versus standards: political alignment within the hierarchical judicial system, the distribution of case facts, the inherent control characteristics of rules versus standards, the effect of overlapping doctrines, the extent that lower court discretion is unavoidable, and the effect of political heterogeneity on a multimember higher court.
U.S. land-use regulators are increasingly embracing mixed-land-use “urban” neighborhoods, rather than single-land-use “suburban” ones, as a planning ideal. This shift away from traditional regulatory practice reflects a growing endorsement of Jane Jacobs’s influential argument that mixed-land-use urban neighborhoods are safer and more socially cohesive than single-land-use suburban ones. Proponents of regulatory reforms encouraging greater mixing of residential and commercial land uses, however, completely disregard a sizable empirical literature suggesting that commercial land use generates, rather than suppress, crime and disorder, and that suburban communities have higher levels of social capital than urban communities. This Article constructs a case for mixed-land-use planning that tackles the uncomfortable reality that these studies present. That case is built upon an apparent paradox: in urban communities, people do not, apparently, make us safer. But they do make us feel safer. This “People Paradox” suggests that, despite an apparent tension between city busyness and safety, land-use regulations that enable mixed-land-use neighborhoods may advance several important urban development goals. It also suggests an often-overlooked connection between land-use and policing policies.
Contract’s Constitutive Core: Solving Problems by Making Deals
James A. Henderson, Jr. | 2012 U. Ill. L. Rev. 89
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Problem solving begins at the earliest stages of development and is central to human experience. While individuals solve simple, everyday problems automatically using cognitive shortcuts, more complex problems require self-conscious, creative mental processes. Unilateral processes of decision making solve most of these more complex problems. But when unilaterally derived solutions call for reliance on help from others, parties often engage in deal making to arrange for mutual assistance. Thus, the main purpose of deal making is to implement each side’s solutions to its own problems rather than to reach joint solutions to common problems. Collaboration does occur in deal making, but it is not the main purpose in most instances.
This Article offers a descriptive, instrumental analysis of U.S. contract law as a problem-solving enterprise, and argues that problem solving, both private and public, is the primary focus of U.S. law generally and contract law in particular. It models the building-block concepts of problems, solutions, and methods of implementation, describing how individuals, groups, and governmental institutions reach and implement solutions. It then uses this problem-solving perspective to explain aspects of U.S. contract law, such as the unenforceability of gift promises and gambling contracts, that traditional bargain theories cannot explain adequately, if at all. The Article’s unique perspective also explains why courts cannot function effectively as problem solvers. Because solving complex problems requires the exercise of broad discretion, individuals can accomplish the task by drawing on creative intuition. By contrast, courts are not institutionally capable of solving such problems because the adjudicative process does not allow for the exercise of broad discretion.
In developing its central thesis, this Article distinguishes between contract’s constitutive core and its regulative penumbra. The core empowers private actors to reach and implement solutions to private problems, while the penumbra consists of public regulations that courts apply both to deal making and to deals to solve public coordination problems. This Article concludes that in U.S. contract law, only bargains that unambiguously reflect an effort to use contract’s core to solve preexisting problems are deemed worthy of judicial enforcement. This problem-solving account not only carries explanatory force in describing U.S. contract law, but offers a starting point to begin to develop a robust problem-solving perspective on both private and public U.S. law.
Fairness Versus Welfare in Health Insurance Content Regulation
Amy B. Monahan | 2012 U. Ill. L. Rev. 139
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Regulating the content of health insurance contracts, where the government determines which medical treatments and services must be covered, creates tension between principles of fairness and principles of welfare economics. Principles of fairness, after all, may require that all medical losses be shared within a community, while principles of welfare economics would advocate regulation only where there is some form of market failure that leads to an inefficient or suboptimal result. As part of recently enacted federal health care reform, the federal government will, for the first time, have the primary responsibility of regulating the content of privately financed health insurance policies, although the federal government is given the statutory option to borrow heavily from existing state regulation. This Article provides the first comprehensive study of the state legislative process with respect to health insurance content regulation. In the states studied, the author finds that both fairness and welfare claims influence mandate passage, with little reliance by legislators on outside evidence substantiating welfare claims. In contrast to theoretical writings on health insurance content regulation, which emphasize market failure as the primary justification for mandates, this current study finds that mandates were rarely premised on correcting defects in the insurance market. Rather, the justifications provided tend to be more paternalistic in orientation, often based on a desire to increase suboptimal utilization of a particular medical treatment or service regardless of the reason why individuals lack coverage. Even where there is an independent, expert commission providing robust data on proposed regulation, bills with virtually no impact on either health insurance coverage or treatment utilization are passed. Given these findings, this Article argues that the federal government should be hesitant to rely upon existing state-level regulation when it defines “essential health benefits” as part of health care reform.
David C. Baum Memorial Lecture
The Power of Persuasion Before and Within the Supreme Court: Reflections on NEPA’s Zero for Seventeen Record at the High Court
Richard J. Lazarus | 2012 U. Ill. L. Rev. 231
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This Article reviews the remarkable string of seventeen straight losses that environmental plaintiffs have suffered in Supreme Court cases arising under the National Environmental Policy Act (NEPA) and challenges the accepted wisdom that these rulings reflect the Court’s hostility toward environmental protection. A close review of the cases, including the advocacy before the Court in each case, and the deliberations within the Court during its decision-making process, reveals instead a far more nuanced and less one-sided understanding of the rulings, and underscores the significance of effective advocacy both before the Court by arguing counsel and within the Court by the Justices themselves.
Binary analysis that treats Supreme Court rulings as either “wins” or “losses” misapprehends the nature of judicial rulings and the essential role served by legal reasoning. Not all losses are created equal. Some “losses” are the product of concessions made by the prevailing party that amount to significant wins by the purported losing party. And opinions that end by reversing favorable lower court judgments may nonetheless include language highly favorable to environmental plaintiffs in future litigation. To be sure, NEPA plaintiffs have not fared well before the Court and have lost some significant arguments there, but their record is far less dismal or one-sided as is routinely supposed.
Finally, the NEPA cases do suggest that there is an increasing risk that the Court’s docket and rulings are being skewed in favor of commercial interests because of the disproportionate ability of those interests to retain expert Supreme Court advocates. In recent years, the private Supreme Court Bar has enjoyed a significant resurgence, marked by the emergence of a significant group of highly effective lawyers specializing in Supreme Court advocacy. Although the development of such expertise is generally a positive development for the Bar and the Court, it makes it all the more important that such expertise be available to opposing viewpoints on important legal issues that the Court is deciding.
Drawing a Line: The Need to Rethink Remedies Under the Age Discrimination in Employment Act
Justin A. Walters | 2012 U. Ill. L. Rev. 255
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This Note considers the circuit split regarding the treatment of front-pay damages under the Age Discrimination in Employment Act (ADEA). Specifically, courts disagree as to whether a liquated damages award should affect the determination of front-pay damages. This Note begins with an analysis of the remedies available under the ADEA and the nature of punitive damages. Drawing on this background, the author explains the rationales underlying the two approaches for determining front pay—either considering liquated damages when determining front pay or independently considering front-pay damages. The author concludes that a fear of overcompensating the plaintiff motivates the former approach, while an emphasis on the different rationales for the remedies—compensatory and punitive—underlies the latter. To suggest a resolution to this disagreement, the author analyzes liquidated damages and then weighs the strengths and weakness of both methods. This Note concludes with the proposition that liquidated damages and front-pay damages should be considered independently in order to further the purpose of the ADEA and to maintain the integrity of the underlying rationales for the awards.
Abandoning Property Taxes Assessed on Fallow Nonprofit Property
Brittany L. Viola | 2012 U. Ill. L. Rev. 287
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Financial distress has led to a rise in the shuttering of tax-exempt property owned by non-profit organizations. Typically, nonprofits are not subject to property taxes if they use their properties for charitable purposes. Because these now-fallow properties are no longer being used, a debate has emerged over whether to assess them a property tax. On one side of the debate are those who argue for a strict construction of “charitable use”—one that would exclude non-fallow properties from exemption. Proponents of this construction argue that fallow nonprofit property should be taxed to share the burden of cash-strapped local governments. On the other side of the debate are those who argue for a broad construction of “charitable use”—one that reflects the purposes of nonprofit tax exemptions by excluding fallow nonprofit property from taxation. Proponents of the broad exemption argue that taxing these properties only serves to further strain financially troubled nonprofits, leading to fewer services for the people these nonprofits serve, and in turn placing greater demand on the government. Further complicating the issue is the diverse construction of tax exemptions across the fifty states. This Note examines the varying constructions and purposes of property tax exemptions for nonprofits. The Note concludes by suggesting a simple, more uniform system of taxing nonprofit property under the broad construction of “charitable use” so that fallow nonprofit property remains exempt. This approach would best serve the purposes of nonprofit tax exemptions and the people nonprofits serve.
Homogeneous Rules for Heterogeneous Families: The Standardization of Family Law When There is no Standard Family
Katharine K. Baker | 2012 U. Ill. L. Rev. 319
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This Article explores the ironies involved in the contemporary enforcement of family obligations. As forms of intimate partnership and parenthood become ever more varied, the law of family obligation—child support, property division, and alimony—has become increasingly routine and formulaic. As scholars increasingly call for more attention to the varied ways in which different individuals and communities structure their care networks and intimate lives, the law of family obligation has become less, not more attentive to context. This Article explains how the law’s rejection of context is an understandable reaction to the growing diversity of family forms. By unpacking contemporary family law rules, one sees that the baselines and value judgments informing the law of family obligation are usually contested, arbitrary, or both. They are accepted not because they represent consensus on what obligation should be, but because they clearly demarcate who is obligated and for how much. Predictability emerges as more important than context for almost everyone. Social acceptance of so many different family forms makes judicial attention to context extraordinarily invasive and expensive. In an area of law where very few of the parties have the resources or desire to debate the normative underpinnings of family obligation and where both the parties and the state have strong interests in minimizing contested issues, there are compelling reasons to establish a very rule and status-based law of obligation, even if that system is rooted in a normative vision of family that, for most people, has ceased to exist. This Article thus argues that despite the profoundly limited way in which the current law identifies families, some reliance on restricted legal definitions of family will be necessary for any meaningful system of family obligation to operate. In doing so, this Article challenges much contemporary family law scholarship and suggests that we may have to accept the law’s privileging of certain family forms if we are to expect an enforceable system of family obligation.
Legal Sources of Residential Lock-Ins: Why French Households Move Half as Often as U.S. Household
Robert C. Ellickson | 2012 U. Ill. L. Rev. 373
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In a given year, a resident of the United States is roughly twice more likely to move to a different home than is a resident of France (or of western Europe as a whole). Cultural differences undoubtedly account for some of this gap. The central thesis of this Article, however, is that much of this disparity in residential mobility can be chalked up to differences between U.S. and French (and other European) legal policies—in particular, taxation statutes, land-use policies, landlord-tenant laws, and housing assistance programs. This Article also offers a normative framework for analyzing the desirability of household relocations. Legal policies that foster residential moves can enable individuals to better match themselves with a job, a dwelling, a set of housemates, a tenure arrangement, a neighborhood, and a municipality (à la Tiebout). A decision to move, however, may give rise to negative externalities, such as erosion of local social capital. In theory, although rarely in practice, people thus can move too often.
In 2000, a group of American entrepreneurs moved to a former World War II antiaircraft platform in the North Sea, seven miles off the British coast. There, they launched HavenCo, one of the strangest start-ups in Internet history. A former pirate radio broadcaster, Roy Bates, had occupied the platform in the 1960s, moved his family aboard, and declared it to be the sovereign Principality of Sealand. HavenCo’s founders were opposed to governmental censorship and control of the Internet; by putting computer servers on Sealand, they planned to create a “data haven” for unpopular speech, safely beyond the reach of any other country. This Article tells the full story of Sealand and HavenCo—and examines what they have to tell us about the nature of the rule of law in the age of the Internet.
The story itself is fascinating enough: it includes pirate radio, shotguns, rampant copyright infringement, a Red Bull skateboarding special, perpetual motion machines, and the Montevideo Convention on the Rights and Duties of State. But its implications for the rule of law are even more remarkable. Previous scholars have seen HavenCo as a straightforward challenge to the rule of law: by threatening to undermine national authority, HavenCo was opposed to all law. As the fuller history shows, this story is too simplistic. HavenCo also depended on international law to recognize and protect Sealand, and on Sealand law to protect it from Sealand itself. Where others have seen HavenCo’s failure as the triumph of traditional regulatory authorities over HavenCo, this Article argues that in a very real sense, HavenCo failed not from too much law but from too little. The “law” that was supposed to keep HavenCo safe was law only in a thin, formalistic sense, disconnected from the human institutions that make and enforce law. But without those institutions, law does not work, as HavenCo discovered.
David C. Baum Memorial Lecture on Civil Rights and Civil Liberties
Citizens United and Conservative Judicial Activism
Geoffrey R. Stone | 2012 U. Ill. L. Rev. 485
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This Article analyzes the recent trend of conservative judicial activism in the Supreme Court and searches for a principled reason to explain it. The conservative majority has struck down several laws in recent years, culminating in its invalidation of an important provision of the Bipartisan Campaign Reform Act of 2002 in Citizens United v. Federal Election Commission. While judicial restraint and originalism are currently seen as conservative principles, neither principle explains these decisions.
The author argues that no principle can explain the results of these cases—rather, they can only be explained by the Justices’ personal views and policy preferences. The author compares the conservative majority’s pattern to that of the Warren Court, which largely invalidated laws only when footnote four in United States v. Carolene Products Co. would dictate that the Court should. Thus, neither unrestrained judicial activism nor total judicial restraint is appropriate. Instead, the author argues that a selective judicial activism guided by footnote four is the best approach. The author then concludes that the conservative majority is troubling because it is infusing its personal policy preferences into its opinions while at the same time convincing the public that it is acting in a principled manner.
Bargaining for Salvation: How Alternative Auditor Liability Regimes Can Save the Capital Markets
Hassen T. Al-Shawaf | 2012 U. Ill. L. Rev. 501
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Auditor litigation risk is growing increasingly out of control. This risk not only poses problems for the auditing industry, but it may also create systemic problems throughout entire financial markets. Auditor litigation risks arise from criminal and civil causes of action at both the federal and state level. This Note specifically addresses civil litigation. Scholars suggest a number of solutions for mitigating auditor civil litigation risk, including bargained liability caps, liability caps with strict liability, and decoupled liability.
This Note argues that federal law should allow auditors to bargain for alternative liability regimes with the audit committees of boards of directors. This approach allows the market to determine the most efficient means for limiting auditor liability while minimizing agency and transaction costs. It also incentivizes boards to create good bargains because of shareholder takeover and proxy threats. The Note also calls for further study on requiring proxy votes to enforce these auditor-board bargains. Lastly, it calls for a provision allowing auditors to opt out of federal and state securities remedies. These proposals comply with current disclosure-based securities laws. Moreover, current regulatory and judicial players could be used to review extreme bargains to ensure fairness.
The Note begins with a discussion of the major players in financial markets: management, the board of directors, shareholders, and auditors. It then follows with background of the multitude of federal and state legal regimes that govern these major corporate players, especially auditors, and the effects these regimes have on auditors. The Note then looks at the justifications of each of the proposed solutions. Continuing with a discussion of the criticisms of each approach, it specifically looks at the effects each approach has on company agency and transaction costs. It then considers the limitations each approach faces from current legal and political structures.
Analysis Paralysis: Rethinking the Courts’ Role in Evaluating EIS Reasonable Alternatives
J. Matthew Haws | 2012 U. Ill. L. Rev. 537
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When a federal agency proposes to undertake a “major Federal action,” the National Environmental Protection Act (NEPA) requires the agency, as part of an overall Environmental Impact Statement (EIS), to engage in an analysis of reasonable alternatives to that action. Just what constitutes a major federal action or a proper alternatives analysis, however, is the subject of debate. Should the objectives of third party, nonfederal proponents influence which alternatives are considered? What kinds of alternatives are reasonable? Is the major federal action the approval of a project or the project itself? This Note analyzes the different ways courts have approached these issues, focusing on statutory, environmental, efficiency, and common sense considerations. Ultimately, the author suggests that to fully realize NEPA’s goals of public participation and environmentally focused decision making, courts need to reconceptualize their own analysis of reasonable alternatives. The author posits that courts need to work collaboratively with federal agencies and project proponents by adopting a good faith standard of review for alternatives, rejecting the idea that the “purpose and need” statement of an EIS should guide the scope of alternatives, and recognizing a more limited scope for alternatives when nonfederal third parties propose a project.
The Real Social Network: How Jurors' Use of Social Media and Smart Phones Affects a Defendant's Sixth Amendment Rights
Marcy Zora | 2012 U. Ill. L. Rev. 577
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The advent of the Internet and the rise of social media websites such as Twitter and Facebook have created new challenges for the courts in protecting defendants’ Sixth Amendment rights. The Sixth Amendment provides criminal defendants with “the right to a speedy and public trial, by an impartial jury” as well as the right “to be confronted with the witnesses against him.” These Internet resources, particularly when combined with new technologies such as smart phones with web-browsing capabilities, provide jurors with a new avenue to do independent research on the defendant or the case, or to communicate trial-related material before deliberations are complete, both of which violate a defendant’s Sixth Amendment rights. This Note analyzes the different approaches courts have taken in combating such violations, including the use of more specific jury instructions, restriction of juror access to electronic devices such as smart phones, use of voir dire to exclude “at risk” jurors, and monitoring of juror Internet activities. Ultimately, this Note argues that jury instructions, prohibitions on electronic devices in the courtroom, voir dire, and monitoring are insufficient to protect defendants’ Sixth Amendment rights. Courts, rather, should establish specific punishments for engaging in these prohibited activities, ensure that the jurors are informed of the punishments, and take a more proactive approach toward identifying violators by questioning jurors throughout the trial process.
Symposium: Jack Balkin's Constitutional Text and Principle
The Method of Text and ?: Jack Balkin’s Originalism With No Regrets
Larry Alexander | 2012 U. Ill. L. Rev. 611
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In this Article on Professor Jack Balkin’s Living Originalism, I analyze his method of “text and principle.” I have no quarrel with Professor Balkin’s claim that some of the constitutional norms are rules and some are standards. His claim, however, that some of the norms are “principles”—principles that do most of the work in his attempt to reconcile originalism and living constitutionalism—is the claim I find doubtful. I examine three conceptions of what such principles might be, and I conclude that one of them is possible but highly unlikely, while the others are not merely unlikely but impossible of realization.
In his book, Living Originalism, Jack Balkin proposes what he calls the “interaction theory” of the original semantic meaning of the word “commerce” in the commerce clause. He claims that “commerce” meant “social interaction.” In this Article, I explain why his theory is wrong due to errors of commission and omission. Balkin is wrong to reduce “commerce” to “intercourse,” “intercourse” to “interaction,” and “interaction” to “affecting.” This triple reduction distorts rather than illuminates the original meaning of “commerce.” Balkin furthermore omits from his discussion the massive amounts of evidence of contemporary usage—along with dictionary definitions of “intercourse”—establishing that “commerce” referred to the trade or transportation of things or persons, and did not include such productive economic activity as manufacturing or agriculture, much less all social interaction. I also reply to Balkin’s criticisms of my book, Restoring the Lost Constitution. In particular I explain why his heavy reliance on Gunning Bedford’s resolution in the secret Philadelphia convention is misplaced in a discussion of the original meaning of the commerce clause.
This Article suggests that, with the publication of Jack Balkin’s Living Originalism, we are witnessing the “Balkanization” of originalism (when originalism splits into warring camps) along with the “Balkinization” of originalism (when even Balkin, hitherto a pragmatic living constitutionalist, becomes an originalist). It goes on to argue that Balkin’s living originalism is what Ronald Dworkin has called a “moral reading” of the Constitution, for it conceives the Constitution as embodying abstract moral and political principles, not codifying concrete historical rules or practices. Furthermore, despite important differences, there are unmistakable affinities between Balkin’s commitment to interpret the Constitution so as to redeem our faith in its promises and aspirations, and Dworkin’s commitment to interpret the Constitution so as to make it the best it can be.
Constitutional Cultures, Democracy, and Unwritten Principles
Jeffrey Goldsworthy | 2012 U. Ill. L. Rev. 683
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In Living Originalism, Jack Balkin offers an account of the U.S. Constitution’s legitimacy and presents a theory for reconciling originalism and living constitutionalism. In describing the Constitution’s legitimacy, he distinguishes between the functions of a constitution as a “basic law,” a “higher law,” and “the people’s law.” According to Balkin, the legitimacy of the U.S. Constitution stems from its serving as a higher law, as well as the people’s law. Next, in reconciling originalism and living constitutionalism, he relies heavily on the distinction between interpretation and construction. The object of interpretation, the Constitution’s original meaning, should not be changed except by formal amendment, while constructions can legitimately be changed by later ones, so as to better reflect contemporary values. This Article focuses on possible weaknesses in both of these arguments.
First, by drawing on the constitutional traditions of other countries, this Article notes that some constitutions do not serve as higher law or the people’s law. For example, the Australian Constitution serves as a basic law but not a higher law or the people’s law. Nevertheless, it enjoys legitimacy by providing a framework for lawmaking and providing a fair and democratic political process. Moreover, constitutions are adopted in very different historical, social, and political contexts, to serve different needs, and communities build on them and come to depend on them in different ways. Thus, Balkin’s theory may apply only to the U.S. Constitution, and the different functions of constitutions elsewhere may help to dispel any false sense of necessity in terms of serving as a higher law or the people’s law.
This Article also expresses several doubts about Balkin’s theory of living originalism. It questions whether the theory is too good to be true: that is, whether judicial review has impeccable democratic credentials or instead allows an unelected elite to moderate the power of the majority. This Article next asks whether Balkin’s theory proves too much. He argues that the process of construction is essentially democratic. If, however, constitutions are justified by an act of popular sovereignty, and later constructions are legitimate for the same reasons, it is not clear why constitutional interpretations that change original meanings cannot be similarly justified. This Article ends by discussing Balkin’s distinction between interpretation and construction, especially as it relates to so-called “unwritten principles.” If, as Balkin suggests, unwritten principles can evolve over time, constitutional construction could, in effect, add new provisions to the Constitution, not only when necessary to implement its original underlying principles, but to implement new principles that were themselves adopted by construction.
Jack Balkin As the Picasso of Constitutional Theorists
Sanford Levinson | 2012 U. Ill. L. Rev. 711
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This Article examines Jack Balkin’s seminal book, Living Originalism, and his influence on constitutional theory. In this Article, the author draws illuminating comparisons between Balkin, whom he considers to be one of the giants and geniuses of twentieth and twenty-first century constitutional theory, and Pablo Picasso, acknowledged as one of the giants and geniuses of the twentieth century art world. The author focuses his comparison on Picasso’s version of Diego Velàzquez’s great 1656 painting, Las Meninas (The Maids of Honour). Although Picasso’s Las Meninas may not look like the Velàzquez original, Picasso very much saw himself working within a tradition of art, and one presumes that one purpose of his fifty-eight studies was to establish his legitimate place in a lineage of great artists most definitely including Velàzquez. Similarly, a central point of Balkin’s Living Originalism is that fidelity to U.S. constitutionalism requires an acknowledgement of changed conditions and the concomitant necessity of adjustment. The author suggests that the Living Originalism audience will either realize that the only plausible form of originalism is indeed “Living Originalism” of the kind delineated by Balkin or, instead, look at Living Originalism with the same kind of skepticism that some viewers undoubtedly direct at Picasso’s version of Las Meninas.
Preserving constitutional legitimacy by holding that constitutional text can be “redeemed” from incorrect perceptions is an important theme in Jack Balkin’s Living Originalism. That premise stems from the text’s reference to a “more perfect union,” which encompasses an ideal that sits above doctrines of the U.S. Supreme Court at any given time. This piece explores the concept of redemption by drawing comparisons between our constitutional text and the British Crown, with a special emphasis on the influential English journalist, Walter Bagehot, and his work, The English Constitution. Exploring Bagehot’s analysis of the British Crown reveals an infallibility principle similar to the constitutional text. The infallibility principle empowers government by preserving reverence. It also provides a fiction whereby the Supreme Court can make errors, but the constitutional text itself remains flawless. The comparison between the British Crown and the Constitution leads to three consequences emanating from the presumption that the Constitution “can do no wrong.” First, some things are too awful to be constitutional. Second, some things are too awful to have been constitutional. And third, some things about the Constitution are too sensitive to discuss in public. These interpretive principles exemplify the role that legal fictions must play in successful constitutionalism.
This Article, which is part of a symposium on Jack Balkin's book, Living Originalism, criticizes the principal method that is used to argue that originalism allows modern interpreters significant discretion. The key move in this argument occurs when an interpreter claims that possibly abstract constitutional language has an abstract meaning. Clauses with abstract meanings allow interpreters to exercise significant discretion over their content. Consequently, interpreters can claim to find modern values in these clauses and still argue that that they are respecting the original meaning.
We examine this interpretive move and argue that two well-known theorists who employ it, Ronald Dworkin and Jack Balkin, commit a fallacy—what we term “the abstract meaning fallacy.” This fallacy occurs when interpreters conclude that possibly abstract language has an abstract meaning without sufficiently considering the alternative possibilities. While possibly abstract language might turn out to have an abstract meaning, this result does not exhaust the interpretive possibilities. As we show with examples, the better interpretation of such language considered in context might turn out to have either a concrete meaning or a general meaning that is not abstract.
Ronald Dworkin is not himself an originalist, but he argues that an originalist methodology should lead to abstract interpretations. Unfortunately, Dworkin consistently assumes an abstract meaning without closely examining other possible historical meanings.
Jack Balkin makes a variety of more complex arguments but also commits the abstract meaning fallacy. Balkin attempts to support his preference for abstract interpretations by claiming that many constitutional provisions take the form of open-ended principles that allow modern interpreters significant discretion. But Balkin presents little evidence that the Framers embraced such a distinctive method of writing and interpreting a constitution. Balkin also claims that abstract constitutional provisions are necessary to enable politics by allowing political processes to give content to the values that the abstract provisions leave open. But provisions as abstract as he prefers are not necessary to politics because nonabstract provisions can also allow a significant political sphere. Further, Balkin attempts to support his approach with normative arguments. But Balkin’s normative vision does not comport with that of the actual Constitution and, in our view, is normatively unattractive. Thus, Balkin is no more successful than Dworkin in showing that originalism can be collapsed into living constitutionalism.
Constitutional theory branches into decision theory and discourse theory. The former branch concentrates on how constitutional decisions are or should be made, the latter on how constitutional issues are or should be discussed. For its part, originalism initially was promoted as a method for resolving constitutional disagreement, but it has spread into discourse theory as well. Jack Balkin’s “living originalism” illustrates this extension. This Article examines inclusive versions of originalism like Balkin’s that permit many different answers to constitutional questions. The Article then suggests pathologies associated with loose constitutional discourse in general. For instance, a large domain for constitutional discourse can crowd out nonconstitutional argument and raise the stakes of disputes in ways that discourage compromise, creativity, and trust. Under certain conditions, loose constitutional discourse is a distraction that cannot moderate societal divisions. At its worst, loose constitutional discourse retards progress toward goals that it is supposed to achieve. We still have much to learn about how constitutional discourse operates in fact and how it interacts with nonconstitutional argument. At the moment, conducting those inquiries probably is more important than producing more talk about how we ought to talk about constitutional law.
In this Article, the author praises Jack Balkin’s new book, Living Originalism, for advancing normative constitutional theory in two interlocked ways: (1) by demonstrating that many long-thought conclusions central to originalist ideology are simply not required by the original meaning of the Constitution’s text, and (2) by explaining constitutional authority and fidelity in a manner consistent with a systems-level understanding of the judicial role. The author links these advancements by noting that insofar as the major constitutional controversies of the day are disputes over constitutional construction and not of constitutional interpretation, attention is naturally directed to the political systems that elaborate new constitutional constructions.
Yet in the author’s view, the book inadequately develops standards for assessing those politics. Balkin’s criterion of democratic legitimacy is simply too capacious. The author supplements Balkin’s work with her own work on “processualism,” which attends to the role institutions play in conferring normative legitimacy. Because processualist values are enforced by partisan officials, however, using processualism as a standard of fidelity will require theorists to adopt positions that register as partisan even while assessing systems-level processes. Making use of processualism’s analytic leverage would require Balkin to give up the aspiration toward a nonpartisan systems-level approach to constitutional fidelity.
This Article responds to the nine contributions to the symposium on Living Originalism. It considers nine different aspects of the argument in the book: (1) why constitutions around the world contain vague and abstract language, and how a constitution’s choice of language connects to the purposes of a constitution; (2) the book’s theory of democratic legitimacy; (3) how the book’s argument applies to constitutional cultures outside the United States, and the relationship between original and implied meanings; (4) the differences between the book’s theory of constitutional interpretation and that of Ronald Dworkin; (5) whether the book’s account of legal principles is consistent with legal positivism; (6) the book’s account of the U.S. Constitution as both “fallen” and as “higher law”; (7) whether a “protestant” constitutional culture—in which citizens feel authorized to state what the Constitution means for themselves—benefits or harms democratic legitimacy; (8) the book’s account of the original meaning of “commerce” as “intercourse,” and Congress’s power to regulate interstate networks of transportation and communication; and (9) the book’s message for living constitutionalists and constitutional originalists.
Chipping Away at the Illinois Brick Wall: The Use of Calder Jurisdiction in State Indirect Purchaser Litigation
Stephen Blecha | 2012 U. Ill. L. Rev. 879
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Since the unraveling of the lysine price-fixing conspiracy, dramatized in the recent Hollywood film The Informant!, the rate of discovery of other price-fixing cartels has increased dramatically. When direct purchasers of the product “pass on” the overcharges to indirect purchasers—those purchasers more than one step removed in the chain of distribution from the conspirator, and often the end consumer—it is the indirect purchasers who bear the brunt of the harm. Indirect purchasers, however, are often barred from recovering damages. While many states, unlike the federal government, provide indirect purchasers with standing to file an antitrust suit against the violator, such actions are nonetheless often fruitless due to the lack of personal jurisdiction.
This Note analyzes Supreme Court precedent in determining the issue of personal jurisdiction and proposes that the “effects test” set forth in <em>Calder v. Jones</em> should be used to extend personal jurisdiction over antitrust violators in indirect purchaser suits to states where the harm of the violation was felt. This Note argues that a liberal application of the <em>Calder</em> analysis is necessary given antitrust suits’ uniqueness, which distinguishes them from other intentional torts. This Note concludes that the use of <em>Calder’s</em> “effects test” to establish personal jurisdiction in indirect purchaser litigation is desirable from a policy standpoint, prevents circumvention of the purpose of legislation granting indirect purchasers standing to sue, and is consistent with “traditional notions of fair play and substantial justice.”
Striking the Proper Balance Between the Carrot and the Stick Approaches to Animal Feeding Operation Regulation
Shauna R. Collins | 2012 U. Ill. L. Rev. 923
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Agriculture is one of the cornerstones of the success of the United States, yet it has also dramatically and negatively affected the quality of our nation’s waters. Animal Feeding Operations (AFOs) and Concentrated Animal Feeding Operations (CAFOs) are responsible for significantly degrading water quality in watersheds across the country due to their creation of massive amounts of animal waste and the methods used to dispose of and utilize the waste for fertilizer. Although the Environmental Protection Agency (EPA) ostensibly regulates these operations through the permitting requirements of the Clean Water Act (CWA), it has failed to implement policies that effectively and efficiently address the pollution caused by AFOs and CAFOs. This Note discusses the different regulatory mechanisms that attempt to reign in the degradation, categorized into groups of carrot and stick approaches that are endorsed by U.S. agricultural groups and environmentalists, respectively. The Note provides an overview of potential solutions, including current EPA regulatory methods, the EPA’s draft Clean Water Strategy, a restoration plan in place in the Chesapeake Bay watershed, and solutions proposed by various commentators and interested individuals. Ultimately, this Note concludes that the adoption of either a carrot or a stick approach in totality is not the best solution; rather, a combination of incentive-based approaches and ex post liability would be most successful, leading to more compliance and less pollution overall. A chronological framework for creating this type of hybrid solution is proposed, drawing from ideas already suggested but not implemented by the EPA. The Note argues that agriculture’s impact on water quality could result in calamity if it continues in the current fashion. To prevent such calamity, this Note calls for nationwide collaboration, extensive information gathering, revision and tightening of current regulatory and permitting schemes, and the implementation of creative new methods, such as a water-quality trading system.
Sentences Should Be Reasonable, Not Shocking: A De-Emphasis on Loss for Federal Securities Fraud Sentencing
Lana L. Freeman | 2012 U. Ill. L. Rev. 969
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This Note considers the role of loss in determining appropriate sentences in criminal securities fraud cases. This Note begins with an analysis of the history of loss in federal economic crime sentencing and the changes brought by the U.S. Sentencing Guidelines. This background informs a discussion of the different approaches that courts have taken in calculating criminal securities fraud sentences—namely, either adopting or rejecting the principles governing damages in civil cases. Additionally, this Note considers the increased use of discretion by district courts, as allowed by the decision in United States v. Booker, to determine that sentences based primarily on loss are unreasonable. The author concludes that the use of loss in sentencing would create a bright-line rule for courts to follow, achieving the U.S. Sentencing Guidelines’ goal of uniformity; this uniformity, however, would come at the expense of proportionality and fairness. To resolve this conflict, the author suggests that courts follow civil principles for determining loss but exercise Booker discretion in cases where following these principles would be unjust or produce disproportionate sentences.
A Floating NAV for Money Market Funds: Fix or Fantasy?
Jill Fisch & Eric Roiter | 2012 U. Ill. L. Rev. 1003
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The announcement by the Reserve Primary Fund in September 2008 that it was “breaking the buck” triggered a widespread withdrawal of assets from other money market funds and led the U.S. Government to adopt emergency measures to maintain the stability of the short-term credit markets. In light of these events, the SEC heightened the regulatory requirements to which money market funds—a three trillion dollar industry—are subject. Regulators and commentators, however, continue to press for further regulatory change. The most controversial reform proposal would eliminate the ability of money market funds to purchase and sell shares at a stable $1 per share price.
This Article argues that the debate over a floating net asset value (NAV) is misguided. First, under current law, money market funds can maintain a $1 share price only under limited conditions. Second, a floating NAV would not achieve the goals claimed by its proponents. Third, and most important, a stable share price is critical to the existence of the money market funds industry. A required floating NAV would eliminate the fundamental attraction of money market funds for investors and, as a result, jeopardize the availability of short-term capital.
The more important regulatory question, on which prior commentary has not focused, is what happens if a money market fund breaks the buck. This Article takes the position that this event should neither require the fund to be liquidated nor permit the board unfettered discretion in suspending redemptions. Instead, the Article proposes two procedural reforms designed to provide flexibility and predictability in these circumstances by allowing a money market fund to convert to a floating NAV and allowing investors to redeem most of their shares without awaiting completion of a fund’s liquidation. In conjunction with a modest amendment requiring improved fund disclosure about the circumstances under which a fund may be unable to maintain a stable share price, these changes will increase liquidity, address the pressures that may lead to a “run,” preserve the economic viability of money market funds, and allow them to respond to the preferences of investors.
Veggie Tales: Pernicious Myths About Patents, Innovation, and Crop Diversity in the Twentieth Century
Paul J. Heald & Susannah Chapman | 2012 U. Ill. L. Rev. 1051
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The conventional wisdom, as illustrated for millions of readers in the July 2012 issue of National Geographic, holds that the twentieth century was a disaster for crop diversity. In the popular press, this position is so entrenched that it no longer needs a citation. We conduct a study of all vegetable and apple varieties commercially avail-able in 1903 and compare them with all varieties commercially available in 1981 and 2004. We question the conventional wisdom and cast serious doubt on the 1983 vegetable crop diversity study that previous commentators have taken as gospel. We also enter the debate between economists and social scientists on the role that patent law might play in destroying or enhancing crop diversity. Both sides may be wrong. Our data suggest that patent law has not reduced crop diversity, nor is it likely to have significantly contributed to the introduction of new vegetable varieties. The diversity loss thesis espoused by ethnobotanists is as suspect as the incentive-to-invent story told by
patent economists, at least regarding the most common vegetable crops. Finally, we provide one of the first analyses of innovation in any comprehensive technology market by identifying the source of all products in the vegetable market and current commercialization rates for all patented innovations. This paper goes significantly beyond our prior three related postings of preliminary data.
Contemporary Meaning and Expectations in Statutory Interpretation
Hillel Y. Levin | 2012 U. Ill. L. Rev. 1103
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This Article introduces and explores an approach to, or theme within, statutory interpretation, one grounded in contemporary meaning and expectations. This approach posits that judges interpreting ambiguous statutes are and should be constrained by the understanding and expectations of the contemporary public as to the law’s meaning and application. These are developed in response to, and mediated by, the actions and statements of government officials and the broader community. The Article argues that this apparently radical approach is necessary for law to maintain its moral force, and further, that the principles underlying it are embedded in several doctrines and modalities of statutory interpretation. Further, the approach serves judicially conservative ends: promoting accessibility of the law to those governed by it, supporting social and legal stability and predictability, privileging organic and incremental change over radical breach, encouraging judicial minimalism and legislative maximalism, and fostering equality.
"Healthism": A Critique of the Antidiscrimination Approach to Health Insurance and Health-Care Reform
Jessica L. Roberts | 2012 U. Ill. L. Rev. 1159
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This Article identifies an unresolvable tension between the anti-discrimination approach embraced by health-care reform advocates and the current practices of the private, for-profit health-insurance industry, which the Patient Protection and Affordable Care Act (ACA) seeks to preserve. Discussions of health-status discrimination permeated the debate surrounding health-care reform, infusing those conversations with the language of civil rights. Insurance, however, is by its very nature discriminatory. Thus, an antidiscrimination paradigm is not the appropriate normative framework for addressing disparities in health-insurance coverage.
For-profit health insurance has historically disadvantaged individuals based on health status through risk-assessment and cost-sharing mechanisms. Proponents of health-care reform vilified these accepted business practices as producing untenable discrimination against the sick. Congress, therefore, adopted an antidiscrimination framework in the ACA. Specifically, the statute forbids insurers from considering health-related factors in their rating and underwriting decisions. Yet these protections will ultimately fail to eliminate the disparities experienced by the sick in health insurance. As of 2014, individual and small-group insurers may base their rating decisions on criteria including age, geographic location, and tobacco use, and large-group insurers may consider participation in wellness programs. These new rating mechanisms approximate health status, thereby disadvantaging the same populations as the existing system. Thus, while the ACA may end health-status discrimination on its face, it will not in its effect. Consequently, this Article proposes an alternate normative framework, grounded in a universal right to basic health-insurance coverage, to address the problem of un- and underinsured Americans. It concludes by teasing out examples of the universal right paradigm within the ACA and exploring how Congress could improve those provisions to ensure that more Americans carry baseline health insurance.
David C. Baum Memorial Lectures on Civil Rights and Civil Liberties
Moving the Strike Zone: How Judges Sometimes Make Law
Vaughn R. Walker | 2012 U. Ill. L. Rev. 1207
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Many judges and politicians say that judges should act like umpires in the judicial arena and simply “call balls and strikes.” These judges and politicians have convinced a large portion of the U.S. public that judges should act this way and, therefore, should not make law but instead interpret the Constitution using so-called “originalism” or “strict constructionism.” But is it even possible for a judge to simply act as an umpire?
This Article argues that there is no fixed “strike zone” for judges to use and that they must rule based on the facts and circumstances of the cases before them. This Article starts by discussing the origins and inadequacies of the comparisons of judges to both baseball umpires and the commissioner of baseball. It then moves on to discuss the restraints on judicial decision making present in the U.S. system regardless of a judge’s philosophical viewpoint. This Article then moves on to discuss how judges not only make law but cannot avoid doing so. Finally, this Article asserts that judges’ rulings reflect the common understanding of the day and that the clear and fixed legal rules that would allow judges to act as umpires simply do not exist.
Never a Lost Cause: Evaluating School Finance Litigation in the Face of Continuing Education Inequality in Post-Rodriguez America
Kerry P. Burnet | 2012 U. Ill. L. Rev. 1225
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This Note considers the future of school finance litigation. Specifically, the Note argues that school finance litigation should be pursued and can achieve success because education inequality is a civil rights violation. The Note begins by describing the education in-equality crisis and detailing the history of failed education litigation. Drawing on this background, the Note argues that education in-equality is an equal protection violation and then reconciles this conclusion with the outcomes of previous cases, including the watershed Rodriguez case. The education crisis requires a judicial solution because the legislature cannot or will not accomplish the necessary complete overhaul of the school finance system. Thus, the Note concludes that the best way to remedy the education crisis is to bring equal protection claims in both state and federal courts on the basis of wealth, with poor children established as a suspect class. Furthermore, the Note recommends that litigation be accompanied by concrete proposals for reform, as a plaintiff victory alone will not produce change.
Beyond Michigan v. Bryant: A Practicable Approach to Testimonial Hearsay and Ongoing Emergencies
Adam A. Field | 2012 U. Ill. L. Rev. 1265
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The Confrontation Clause of the Sixth Amendment protects the right of a defendant to confront and cross-examine the witnesses against him or her. When the Supreme Court issued its opinion in Crawford v. Washington in 2004, the Court, for the first time in American legal history, distinguished the Confrontation Clause from the hearsay rule, by recasting it as protecting a procedural, rather than substantive, guarantee. In the 2006 case of Davis v. Washington, the Court narrowed the scope of the Confrontation Clause by taking into account “ongoing emergencies,” and in 2011, the Court, in Michigan v. Bryant, incorporated a “combined inquiry” test in determining the primary purpose of an out-of-court interrogation, to determine whether statements made in such an interrogation were testimonial. The framework for applying the Confrontation Clause, however, is a confusing one, and there are several inherent problems in the combined approach that have yet to be solved.
This Note analyzes three major categories of approaches to defining testimony within the current framework for applying the Confrontation Clause: the purpose-based approach, the characteristic-based approach, and the functionalist approach. This Note then argues that each approach is insufficient due to serious problems in concept, application, manipulability, and breadth. Finally, this Note proposes the adoption of a new, practical three-step analysis for determining whether an out-of-court statement is testimonial in nature.
Avoiding the Parade of Horribles: A Revised and Unified Fraud-Created-The-Market Theory of Presumptive Reliance Under Rule 10b-5
Zachary M. Johns | 2012 U. Ill. L. Rev. 1299
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The Fraud-Created-The-Market theory of presumptive reliance (FCTM) has reemerged as a way for plaintiffs to recover for securities fraud in inefficient or primary markets. Broadly speaking, FCTM presumes reliance when plaintiffs show that a security would have been unmarketable absent a scheme to defraud. Without a theory of presumptive reliance in private securities fraud actions under Rule 10b-5, plaintiffs are required to show actual reliance—a requirement that typically has the practical effect of eliminating an otherwise valid class of defrauded securities purchasers. Despite the theoretical support and practical appeal of FCTM, the theory has suffered a tortuous development. Presently, circuits are split over whether to recognize FCTM. Of the circuits that do recognize the theory, courts articulate three distinct variations of when FCTM should be applied.
This Note argues that courts should recognize FCTM generally and adopt the economic unmarketability variation of that theory specifically. Economic unmarketability under FCTM permits plaintiffs to rely on the integrity of the inefficient or primary market to assure that a given security is not “patently worthless.” FCTM’s use of the phrase “integrity” is distinct from the established Fraud-On-The-Market (FOTM) theory of presumptive reliance for efficient markets. The economic unmarketability variant of FCTM envisions that the integrity of the market is based on the presence of a variety of players whose attendance collectively guarantees that there will be some value underlying a security offered in a given market. Thus, economic unmarketability assumes that an inefficient market would not contain wholly empty or sham securities. Unlike FOTM, FCTM’s theory of integrity is justified solely on the basis of statutory intent, common sense, and fairness.
Economic unmarketability is not a theory without limits. Courts, in applying FCTM, however, are unclear as to the outer bounds of the theory, thus prompting criticism. This Note proposes three clear limits derived from precedent: First, the alleged fraud must have existed prior to the time of sale and have been so pervasive that its concealment was the only way the security was able to be marketed. Second, to ensure that FCTM does not protect investors from poor investment decisions, potential plaintiffs are only permitted to rely on the integrity of the market to the extent it provides that securities will have some underlying value. Third, the presumption is rebuttable, which permits defendants to weed out investors who purchased knowingly or after the revelation of fraud.
The Note begins by examining the historical background of presumptions of reliance. Next, the Note examines recent legislative and doctrinal changes in securities laws affecting the relationship among reliance, presumptions of reliance generally, and loss causation. The examination of recent developments is then contrasted against treatment of FCTM. The Note next analyzes the arguments against FCTM and shows how these arguments are misplaced in light of recent developments in securities laws and are based on an unnecessarily broad interpretation of the theory. To conclude, the author recommends a unified approach to FCTM with accompanying theoretical limits that extinguish many of the now-dated concerns about the presumption.
Consumer Class Actions After AT&T v. Concepcion: Why the Federal Arbitration Act Should not be Used to Deny Effective Relief to Small-Value Claimants
Charles Gibbs | 2012 U. Ill. L. Rev. 1345
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The recent Supreme Court decision in AT&T v. Concepcion put a new restriction on the ability of consumers to pursue small-value claims against corporations with which they sign a contract containing a mandatory arbitration clause. Mandatory arbitration clauses, commonly used by the mobile telephone industry, are inserted into user contracts and require that claimants pursue arbitration rather than lawsuits to resolve disputes. These clauses effectively eliminate the ability of consumers to pursue class-action lawsuits. Because class-action suits are often the only efficient means of pursuing dispute resolution for small value claimants, these clauses serve to deter small-value claimants from seeking any redress. In Concepcion, the Supreme Court struck down a line of California cases that liberally voided mandatory arbitration clauses which were deemed to be “unconscionable.” The Court reasoned that the state-based evaluation of arbitration clauses was preempted by the federal policy promoting arbitration, as expressed by the Federal Arbitration Act.
This Note addresses the concern that the strict holding of Concepcion may result in mandatory arbitration clauses deterring dispute resolution altogether, allowing corporations to go unchallenged. In analyzing the effect of this decision, the Note explores the Federal Arbitration Act and class actions waivers generally, evaluating their economic efficiency and deterrent value. Arguing that mandatory arbitration is actually less efficient than class-action suits while failing to deter illicit corporate behavior, the Note concludes that courts should re-examine how they evaluate these clauses in light of a goal of deterrence. The Note further argues that Congress should amend the Federal Arbitration Act to protect arbitration as an efficient remedy, while also allowing more class-action suits to deter unfair corporate behavior.
Mainstream attitudes toward disability lag behind U.S. law. This tension between attitudes and law reflects a wider gap between the ideas about disability pervasive in mainstream society—what this Article calls the “outside” view—and the ideas about disability common within the disability community—what this Article calls the “inside” view. The outside perspective tends to misunderstand and mischaracterize aspects of the experience, theory, and law of disability.
The law can help to close this gap in attitudes by changing the conditions in which attitudes are formed or reinforced. Thus, this Article proposes using framing rules to target the moments when nondisabled people make decisions that implicate their future relationship to disability. Framing rules prescribe the frame applied to particular decision moments, by specifying the information and context that accompany the decision. The current messages surrounding disability decision moments tend to be misleading and negative, rooted in the outside view of disability. The proposed framing rules would instead provide insights from the inside view to people who have a reason to think about disability.
This Article examines several decision points to which the inside framing perspective could be applied, including prenatal testing, driver’s licensing, and disability insurance. Each of these areas is an example of a broader domain—thinking about the kind of children we want, injury prevention campaigns, and contingency planning—in which disability is frequently presented in negative terms. Reframing these disability-relevant moments from an inside perspective should help bring society closer to understanding how accessibility and inclusion provide a form of social insurance not just for some, but for us all.
The Fable of the Codes: The Efficiency of the Common Law, Legal Origins, and Codification Movements
Nuno Garoupa & Andrew P. Morriss | 2012 U. Ill. L. Rev. 1443
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The superior efficiency of the common law has long been a staple of the law and economics literature. Generalizing from this claim, the legal origins literature uses cross-country empirical research in an attempt to demonstrate this superiority by examining economic growth rates and the presence of common-law legal systems. We argue that this literature fails to adequately characterize the relevant legal variables and that its reliance on broad-brush labels like “common law” and “civil law” is inappropriate.
In this Article, we first examine the efficiency literature’s claims about the common law and find that it fails to accurately account for important distinctions across common-law legal systems and under-specifies key terms. We next turn to the lengthy debate that took place during the nineteenth century in the United States concerning replacing the common law with a civil code, focusing on the debate’s focus on promoting efficient outcomes. We conclude that a focus on legal systems’ ability to cheaply identify efficient rules, restrain rent-seeking in the formulation and application of rules, adapt rules to changed conditions, reveal the law to those affected by it, and enable contracting around inefficient rules would be more appropriate than the current emphasis on labels. Further, more attention to transition costs would make efforts at reform more credible.
Western Legal Prehistory: Reconstructing the Hidden Origins of Western Law and Civilization
Robin Bradley Kar | 2012 U. Ill. L. Rev. 1499
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Western legal prehistory aims to reconstruct some of the earliest proto-legal and cultural developments that gave rise to Western legal systems and the rule of law. So construed, our understanding of Western legal prehistory is currently highly undeveloped. One reason for this fact is methodological: without the aid of written sources, reconstructions of human prehistory can prove difficult. Recent advances in a broad range of cognate fields have, however, now accumulated past a critical tipping point, and we are now in a secure enough position to begin to reconstruct important aspects of Western legal prehistory.
This Article draws upon and develops these contemporary findings to reconstruct the most plausible genealogical shape of Western legal prehistory. In the process, it reaches a somewhat surprising conclusion. On the traditional view, the most important traditions relevant to the rise of Western law and Western Civilization are said to have originated in ancient Greece, Rome, and Israel. This traditional view is, however, based primarily on historical sources, and the reconstructions in this Article suggest that important precursors of these traditions very likely emerged much earlier and much further to the East. In fact, some of the most important traditions relevant to the emergence of large-scale civilizations with the rule of law in the West would appear to represent just one branch a much larger and richer family of traditions, which began to emerge around 4500 BC in the Eastern-Iran-Bactria-Indus-Valley region. Beginning at this early time, this region began to produce one of the very first ancient civilizations to arise within our natural history as a species (viz., the “Harappan” or “Indus Valley” Civilization), and the people in this region must have therefore developed some of the very first cultural traditions that were specifically adapted to sustaining large-scale civilizations with incipient law. I will be arguing that these ancient developments most likely had a much closer and much more intimate relationship to some of the earliest precursors of Western tradition than has commonly been recognized because these precursors of Western tradition ultimately originated closer to ancient Bactria—which is an area directly adjacent to the Indus Valley—during this very same time period. The reconstructions developed in this Article will thus allow me to decipher what I take to be the most plausible early genealogical shape of our legal family tree, and to suggest a number of important but underappreciated relationships that obtain between our modern Western traditions and a range of other Eurasian traditions with which the West has typically been contrasted.
In today’s world, it is, moreover, especially important that we try to reconstruct the genealogical structure of Western legal prehistory and obtain a better understanding of our deep past. There is now an accumulating body of empirical work, which suggests that we can explain a broad range of features of modern societies in terms of the origins of their laws. This literature suggests that legal origin variables can have strong effects on issues as diverse as corporate governance structure, labor regulations, the robustness of capital markets, and even literacy and infant mortality rates. Whether and how a modern society functions best would thus appear to depend at least in part on the origins of their legal traditions. At the same time, however, both the present legal origins literature and much comparative law scholarship distinguish primarily between the civil- versus common law origins of a nation’s legal system, or between both of these types of Western law and various non-Western legal systems; and the findings of this literature have not yet been fully harmonized with the swath of known difficulties that many developing nations have faced in transitioning to large-scale societies with the rule of law regardless of their civil- or common-law origins. The family trees that are employed in the current literature are, moreover, typically identified from the historical record and therefore fail to detect any relevant relations that might have arisen in human prehistory. They tend to focus on a conception of law as a set of publicly stated rules and procedures that are largely exogenous to the underlying cultural traditions and psychological attitudes that tend to support flourishing legal systems. They therefore fail to detect the kinds of emergent cultural traditions (including the culturally emergent psychological attitudes) that first allowed humans to transition from hunter-gatherer forms of life into larger-scale civilizations with the rule of law. The reconstruction offered here will, by contrast, allow us to see almost half of the large-scale megaempires that have arisen throughout world history—including all those that have arisen in the modern West—as having a shared cultural origin that goes much further back in time. The tradition in question first emerged with some of our very first human forays out of hunter-gatherer living and into settled agricultural living with large-scale civilizations and incipient legal traditions. An understanding of this deeper family tree should therefore have important empirical implications. This work can, for example, be used to help explain why certain exportations of Western-style legal institutions have worked so well while others have not. This work can also be used to identify a number of important but underappreciated features of Western traditions that are shared with these broader Eurasian traditions and have been playing a critical—if underappreciated—role in helping to sustain various forms of social complexity and economic development over the course of world history. Hence, this work can help us understand better some of the full causes and conditions of our modern success in the West. Inquiries of this kind should have special urgency today, given the massive exportations of Western law and Western legal institutions to so many other parts of the world and given the increased pressures toward Westernization that are being felt around the globe.
ObamaCare and the Original Meaning of the Commerce Clause: Identifying Historical Limits on Congress’s Powers
Robert J. Pushaw, Jr. | 2012 U. Ill. L. Rev. 1703
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Article I of the Constitution authorizes Congress “to regulate Commerce among the several States.” The Supreme Court has long interpreted this Commerce Clause as allowing Congress to legislate if it merely could have had a rational basis for determining that the activity regulated, considered in the aggregate nationwide, “substantially affects” interstate commerce.
The Court devised this extremely deferential standard of review in response to political pressure during the New Deal and has consistently reaffirmed it. The result has been to grant Congress nearly unrestrained discretion, because it could reasonably find that just about any activity, when added up nationally, “substantially affects” the interstate economy. No Justice has ever explained how this expansive construction of the Commerce Clause can be reconciled with its original meaning.
Recently, Akhil Amar and Jack Balkin have attempted to provide such a justification. They make two claims about the historical meaning of the Commerce Clause. First, the word “commerce” signified “intercourse”—all interactions, not merely economic but also social and political. Second, the phrase “among the states” authorized Congress to legislate in the national interest or when states acting separately could not adequately address an issue. Accordingly, Amar and Balkin contend that Congress can intervene whenever it might reasonably conclude that it should regulate interactions that extend beyond one state’s boundaries and create problems that can only be resolved at the national level. This interpretation would sustain all significant modern Commerce Clause legislation, such as that dealing with employment, civil rights, the environment, and Obamacare.
The foregoing reading of “commerce” and “among the states” is plausible only if considered in a linguistic vacuum, not in historical context. Indeed, Professors Amar and Balkin have not cited anyone during the Constitution’s framing, ratification, or early implementation period who suggested that those words, as used in the Commerce Clause, permitted Congress to reach all interactions that had out-of-state impacts. Rather, as I will demonstrate, the historical evidence reveals that the Founders understood “commerce” as including only commercial interactions—voluntary sales of products and services and accompanying activities intended for the marketplace, such as manufacturing goods for sale, paid transportation, and banking. Congress could regulate such “commerce” if it concerned more than one state. This market-based limitation is critical because the Constitution did not grant Congress general authority, but rather carefully enumerated its powers and left all other powers to the states or the People.
My “market” theory of the Commerce Clause would support most, but not all, federal laws. To take a topical example, application of this approach would have resulted in upholding most provisions of Obamacare, because they regulate “commerce” (the sale of health insurance products and services) that concerns more than one state. Nonetheless, the mandate that all individuals purchase medical insurance would have been struck down because Congress cannot require Americans to buy products or services, as such transactions are not voluntary sales in the market. Recognizing this basic insight about the nature of “commerce” would have provided the Court with a principled rationale to invalidate the “individual mandate,” instead of reaching this outcome as it did by manufacturing a new exception to the “substantially affects” test. More generally, the “market” theory coherently resolves most of the larger disputes about the extent of Congress’s power under the Commerce Clause.
The Location of the Contemplated Sale as the Ultimate Guide in “Offer to Sell” Transnational U.S. Patent Infringement Cases
Scott A. Cromar | 2012 U. Ill. L. Rev. 1755
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With U.S. patent law taking on an ever more international perspective, and with the difficulties faced by businesses that would like to seek protection of their intellectual property internationally, it is increasingly important that the proper territorial scope and reach of patent law is well defined. The question of the exact territorial reach of U.S. patent law is particularly pertinent to transnational “offer to sell” infringement liability—liability for patent infringement based only on an offer to sell a U.S.-patented product. The Federal Circuit has only very recently directly addressed this issue. This court has acknowledged that when two U.S. companies make an offer to sell in a foreign country, contemplating a sale in the United States, there is potential liability for infringement under U.S. patent laws. The court did not directly address, however, other potential scenarios, such as when two companies make an offer in the United States which contemplates a sale in a foreign country. Thus, although the territorial scope of “offer to sell” infringement is clearer now than it has been in the past, questions still remain.
In an effort to provide some clarity to the scope of “offer to sell” infringement, this Note proposes the adoption and application of a clear rule to all “offer to sell” transnational patent infringement cases. This rule, the “Location of the Contemplated Sale” rule, clearly defines the bounds of “offer to sell” infringement under U.S. patent law and specifies that the location of the contemplated sale should control when deciding whether there is “offer to sell” infringement. This rule extends the Federal Circuit’s reasoning, providing a clear guide for all potential situations while also respecting the policies underlying “offer to sell” infringement.
Public Choice Theory, Interest Groups, and Tort Reform
Max H. DeLeon | 2012 U. Ill. L. Rev. 1787
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The scope of the civil justice system has generated significant interest in recent U.S. history, in large part through the debate surrounding “tort reform.” Most of the relevant political and academic discussion thus far has focused on whether the tort system should be comparatively large or small. Advocates for tort reform argue that it should be small, because a large system is too costly for consumers and abusive to defendants. This Note seeks to add to the discussion by evaluating, not whether one group’s position on tort law is better, but whether one group’s influence on tort law is stronger.
The academic literature evaluating interest groups through the lens of economic theory suggests that when private factions have a direct pecuniary interest in shaping the law through litigation and the political process, the effort they expend to do so will be relative to their ability to overcome problems inherent in collective action. Further, the extent to which their efforts are rewarded will depend on how strategically positioned they are to influence courts and policy makers. This Note builds on the public choice literature analyzing those groups with a direct financial interest in expanding or reducing the scope of tort law. Much of the existing scholarship concludes that groups with an interest in expansion have an advantage in their ability to overcome collective action problems and thus are in a superior strategic position to influence tort law. This Note argues that such conclusions are based on faulty assumptions. If anything, public choice and interest group theory suggest that groups with an interest in reducing the scope of the tort system through tort reform have an advantage over their opponents.
I Need to Feel Your Touch: Allowing Newborns and Infants Contact Visitation with Jailed Parents
Megan McMillen | 2012 U. Ill. L. Rev. 1811
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While incarceration is intended to affect the well-being of the offender, the separation it causes can have equally devastating effects on the innocent children of the incarcerated. The lack of physical contact with jailed parents can affect a young child’s social development, which can lead to mental health problems as well as an increased potential for criminal behavior. The lack of physical contact can also lead to increased rates of recidivism in parents and increased likelihood of experiencing a termination of parental rights. Despite these effects, most jails do not allow young children contact visitation with jailed parents because of costs and security concerns.
This Note examines jail contact visitation policies—or lack thereof—with respect to parents of young children and argues that county jails should be required to allow parents of both genders contact visitation with their children who are under two years of age. To address the power of local jail administrators, this Note proposes state legislation mandating that county jails establish contact visitation programs, but which allows local administrators flexibility in the implementation of the program. To adequately address the problems that arise from a lack of contact, the Author argues that any program must be available to both mothers and fathers, must be available to pretrial detainees as well as convicted offenders, and must be implemented over the likely objection of local administrators. Ultimately, the Author concludes that contact visitation between young children and their jailed parents is essential to the well-being of the children, parents, and society as a whole.
Accountable Care Organizations: How Antitrust Law Impacts the Evolving Landscape of Health Care
Elizabeth L. Rowe | 2012 U. Ill. L. Rev. 1855
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Health-care costs are threatening to destroy the economy in the United States. More money is spent on health care in the United States than in any other country, yet several countries have a much higher quality of care. Accountable care organizations (ACOs), organizations that take responsibility for all health-care needs of patients and reap the benefits of keeping costs down if they provide a high enough standard of care at the same time, have been suggested as a way to both cut health-care spending and raise the quality of care. Because these organizations can have anticompetitive effects, however, they potentially run afoul of antitrust laws. To date, most doctors are afraid to join ACOs for fear of antitrust liability.
This Note argues that ACOs will indeed provide a higher quality of care at a lower cost. The efficiencies created by having several different physicians working together to care for a patient and sharing information in doing so cannot be matched by the system of fragmented care in place today. As a result of these positive benefits and the fact that health-care services markets do not operate in the same way as traditional markets, this Note asserts that room should be made in antitrust law for the establishment of ACOs. ACOs must be evaluated retrospectively to see if their anticompetitive effects outweigh the benefits they provide—and, accordingly, this Note argues ACOs should be presumptively legal at this point. Additionally, this Note argues a more general exception should be established in statute for ACOs because of the different ways in which health-care markets function. Finally, this Note asserts that ACOs that run afoul of antitrust laws should be fined rather than immediately dismantled to give doctors confidence that the organizations have staying power. These provisions are essential if ACOs are to form and achieve the considerable benefits they offer.