The 2011–2012 Board of Editors is pleased to present Issue 1 of the 2012 Volume.
First, Professors Frank Cross, Tonja Jacobi & Emerson Tiller discuss and identify the dominant factors in judicial decision making, at both the higher and lower court level—legal obedience and political ideology. Within that framework, they 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.
Next, Professor Nicole Stelle Garnett constructs a case for mixed-land-use planning that tackles the uncomfortable reality presented by studies 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. The 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.
Following this, Professor James A. Henderson, Jr. 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. His analysis models the building-block concepts of problems, solutions, and methods of implementation, describing how individuals, groups, and governmental institutions reach and implement solutions. He 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. His unique perspective also explains why courts cannot function effectively as problem solvers.
Next, Professor Amy B. Monahan provides the first comprehensive study of the state legislative process with respect to health insurance content regulation. In the states studied, Professor Monahan finds that both fairness and welfare claims influence mandate passage, with little reliance by legislators on outside evidence substantiating welfare claims. Given the findings, Professor Monahan 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.
The issue continues with the David C. Baum Lecture by Professor Richard J. Lazarus in which he 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.