Volume 1996Masthead PDF
Contempt of the Bankruptcy Court—A New Look
Laura B. Bartell | 1996 U. Ill. L. Rev.
With the passage of the Bankruptcy Reform Act of 1978, Congress worked a sweeping revision of the nation's bankruptcy laws. As part of this massive reform measure, Congress reinvented the role of the bankruptcy judge, granting the judge a host of new powers. Because these new powers were so substantial and because Congress elected to establish bankruptcy judges as Article I rather than Article III judges, the Supreme Court, in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., declared those portions of the Act delineating the powers and structure of the bankruptcy courts unconstitutional. Congress responded by passing the Bankruptcy Amendments and Federal Judgeship Act of 1984 to address the Court's constitutional concerns.
Despite the Court's decision in Marathon and Congress' response, the extent of a bankruptcy judge's power remains unclear, particularly as to whether a bankruptcy judge has the statutory or inherent power of contempt. In this article, Laura Bartell provides a thorough analysis of this issue and reaches the compelling conclusion that bankruptcy judges lack the contempt power and that to invest the non-Article III bankruptcy courts with such power would violate the Constitution.
* Member, Shearman & Sterling, New York, N.Y. B.A. 1975, Stanford; J.D. 1978, Harvard.
Do We Have Enough Ethics in Government Yet?: An Answer from Fiduciary Theory
Kathleen Clark | 1996 U. Ill. L. Rev.
In recent years, the United States has witnessed a parade of ethics scandals that have brought down many government officials who have been accused of misusing public office for private gain. Congress has responded to each new scandal by enacting new, tougher ethics regulations, perhaps believing that the errant government official would not have gone wrong if only stricter rules had been in place. As a result of these ad hoc responses to scandal, ethics regulation is now "a complex and formidable rule structure, whose rationale is increasingly obscure." One way out of this morass is to find an acceptable benchmark for measuring the adequacy of ethics regulations. The fiduciary obligation provides an appropriate benchmark for protecting the public trust. In light of fiduciary theory, this article evaluates the current regulations in four areas: government employees' receipt of gifts, their financial interests, their receipt of compensation for nonexpressive activity, and their receipt of compensation for expressive activity. When evaluated in light of fiduciary theory, Congress has, in general, underregulated its own activities and overregulated the activities of the executive branch. But recent reforms, particularly in the area of gifts, suggest that Congress may have begun to apply the fiduciary theory standard to its own activity.
* Assistant Professor of Law, Washington University. B.A. 1984; J.D. 1990, Yale University.
The Environmental Justice Implications of Quantitative Risk Assessment
Robert R. Kuehn | 1996 U. Ill. L. Rev.
The controversial use of quantitative risk assessment by federal environmental agencies has spawned considerable debate among environmentalists, industry, and politicians. Much of the debate centers around the environmental justice implications of risk assessment--that is, whether the use of quantitative risk assessment causes greater environmental impacts on people of color and low-income communities than on other population groups. In this article, Professor Robert R. Kuehn argues that quantitative risk assessment, as currently employed by the U.S. Environmental Protection Agency, does violence to the concept of environmental justice because risk assessment disproportionately places the burden of pollution and environmental hazards on racial minorities and low-income groups. This is so, Professor Kuehn posits, because of inherent methodological flaws in the assessment process. Moreover, risk assessment unduly restricts certain groups from participating in the process in any meaningful way, thus calling into question the fairness of risk assessment. Professor Kuehn attempts to resolve this conflict between risk assessment and environmental justice by suggesting that several reforms be made to both the methodology and the process of risk assessment.
* Clinical Professor of Law, Tulane Law School, and Director, Tulane Environmental Law Clinic. B.A. 1974, Duke University; J.D. 1981, George Washington University; LL.M. 1983, Columbia University; M.Ph. 1995, Harvard University.
The Construction of Ownership
Eric T. Freyfogle | 1996 U. Ill. L. Rev.
In response to a modern culture that increasingly relies on patchwork remedies for societal problems instead of careful forethought to prevent them, Professor Freyfogle calls for a fundamental change in our land-ownership jurisprudence. Current property law does little to discourage a landowner from acting in self-serving ways to accommodate immediate needs--a shortcoming that necessarily sacrifices the land's long-term health. After tracing the development of our country's land-ownership norms, Professor Freyfogle urges us to readjust our vision of the rights and responsibilities that accompany land ownership. This new vision must place a premium on our duty to use the land in ways respectful, not just of other land owners but of the land itself. In his thoughtful appeal, Professor Freyfogle challenges landowners and lawmakers to raise their land-use goals so as to help nourish the land's health and reinvigorate our faded senses of local community.
* Professor of Law, University of Illinois. B.A. 1973, Lehigh University; J.D. 1976, University of Michigan. This essay was originally prepared as a presentation at a conference on The Forest Commons, sponsored by Appalachia-Science in the Public Interest, in Richmond, Kentucky, on March 31, 1995.
Incorporating Thwarted Putative Fathers into the Adoption Scheme: Illinois Proposes a Solution After the "Baby Richard" Case
Mahrukh S. Hussaini | 1996 U. Ill. L. Rev.
In 1994, the Illinois Supreme Court affirmed an order returning a child, known to the public only as Baby Richard, to his biological parents after he had spent most of his young life with an adoptive family. This decision sent shock waves through households and legal communities across the country, and it prompted the Illinois General Assembly to make significant changes to the state's adoption laws. In an effort to secure the finality of adoptions, the legislature promulgated several new burdens on putative fathers. The author of this note argues that, with a few suggested changes, Illinois' new laws strike an effective balance among the many competing interests involved in adoption proceedings. The author first examines the problems faced by courts and legislatures across the United States in addressing the plight of thwarted putative fathers. She then analyzes the Baby Richard case and the new legislation which the case prompted. Finally, she evaluates several potential challenges to the new legislation and offers resolutions.
The Voting Rights Act and Judicial Elections: Accommodating the Interests of States Without Compromising the Goals of the Act
Kirsten Lundgaard Izatt | 1996 U. Ill. L. Rev.
The Voting Rights Act protects minorities from discriminatory election practices which decrease the voting strength of minority groups. For purposes of the Act, judicial and legislative elections are indistinguishable. In this note, the author contends that these two types of elections are different but argues that the major difference, the interests of states in judicial administration, does not require courts to apply an entirely different analysis in fashioning a remedy. Instead, the author concludes that courts can tailor the standard section 2 analysis to account for the interests of states.
The Role of Workplace Hostility in Determining Prospective Remedies for Employment Discrimination: A Call for Greater Judicial Discretion in Awarding Front Pay
Susan K. Grebeldinger | 1996 U. Ill. L. Rev.
* Associate Professor, Wake Forest School of Law. B.A. 1981, University of Montana; J.D. 1984, Yale. My thanks to Professor J. Wilson Parker, who provided invaluable advice. Thanks also to my research assistants Brigette Homrig, Rebecca Perry, Neil Day, and Ashton Hudson.
This is the first of two articles concerning prospective remedies for victims of employment discrimination. The second, currently in progress and co-authored with Professor Stephen L. Hayford of the Babcock Graduate School of Management, is an empirical research project addressing the efficacy of reinstatement and front pay. The project is funded in part by the Fund for Labor Relations Studies.
Misconceptions and Reevaluation — Polygraph Admissibility After Rock and Daubert
James R. McCall | 1996 U. Ill. L. Rev.
American lawyers generally believe that evidence of polygraph test results is inadmissible in courts in this country and that polygraph evidence deserves to be treated as an evidentiary "pariah." Professor McCall's article calls both beliefs into question by examining past and present polygraph admissibility law and the evolution of polygraph theory and technique. Topics addressed in the article include: the appellate opinions from 1975 to 1989 that authorized admission of polygraph evidence in five state and federal jurisdictions; the recent U.S. Supreme Court opinions, including Daubert v. Merrell Dow, that compel a reevaluation of polygraph evidence admissibility that must be more sophisticated and less hostile than was generally the case in the past; and the current status of this reevaluation that has resulted in the admission of polygraph evidence in a number of lower federal courts during the last year.
* Professor of Law, University of California, Hastings College of Law. B.A. 1958, Pomona College; J.D. 1962, Harvard Law School.
Delegalizing Administrative Law
Keith Werhan | 1996 U. Ill. L. Rev.
This article relates contemporary efforts to reform federal administrative policymaking with recent changes in the federal courts' approach to their responsibility to review the legality of agency action. These changes coalesce into a movement toward a "delegalization" of administrative law, by which the author means the purposeful effort by policymakers and judges to free agencies from the binding norms that control the process and content of their decisionmaking. The cumulative impact of these revisions is to undermine the agency's role as the central decisionmaker in shaping and implementing public policy, as well as to compromise the role of the judiciary as guarantor of the legitimacy and legality of that policy. Thus, when taken together, these changes signal a profound rethinking of the administrative process. This rethinking fundamentally challenges the traditional model of administrative law, and with it, the understanding of the rule of law that makes the administrative state acceptable to American society.
Why Annie Can’t Get Her Gun: A Feminist Perspective on the Second Amendment
Inge Anna Larish | 1996 U. Ill. L. Rev.
The Second Amendment speaks of the "right to bear arms" in gender-neutral terms. Yet, participants in the gun control debate portray women most often as the victims of gun use, rather than actors with the right to protect themselves. This exclusion, the author contends, ignores the realities of women's lives: women are subjected to violence by strangers and spouses, unable to call on the police for effective protection, and bound by male-oriented views of self-defense. After examining each of these circumstances in turn, the author analyzes the impact on women of specific gun control measures, drawing on feminist jurisprudence and current interpretations of the Second Amendment. The author concludes that, in this arena, society currently denies women the liberties possessed by men; in doing so, it enforces both physical and political subordination. Finally, the author constructs an inclusive view of gun control measures and self-defense doctrine that gives shape, for women, to the Second Amendment's guarantee of self-protection.
I.R.C. § 6050I and the Attorney-Client Privilege: The Misplaced Emphasis on Incrimination over Confidentiality
Steven A. Migala | 1996 U. Ill. L. Rev.
The Internal Revenue Service vigorously prosecutes attorneys who improperly report cash transactions with their clients. Under I.R.C. § 6050I and accompanying regulations, attorneys who receive more than $10,000 in cash are required to report the transaction to the Secretary of the Treasury using Form 8300. Among the items requested on the form are the client's identity and fee information. In general, disclosure of this client information is not protected by the attorney-client privilege; however, the federal courts have recognized three exceptions to this general rule: (1) the legal advice exception, (2) the last-link exception, and (3) the confidential communication exception. In this note, the author examines these exceptions in light of the underlying policy rationales of the attorney-client privilege and concludes that there is a misplaced emphasis on incrimination over confidentiality. In addition, the author finds a lack of predictability in resolving the tension between the attorney-client privilege and the disclosure mandate of § 6050I. To resolve these problems, the author proposes a standard based on whether the client reasonably intended his or her identity and/or fee arrangements to remain confidential.
Mandatory Arrest: A Step Toward Eradicating Domestic Violence, but Is It Enough?
Marion Wanless | 1996 U. Ill. L. Rev.
While the trial of O.J. Simpson has brought increased media attention to the epidemic of domestic violence in the United States, the problem is neither new nor isolated. In fact, up on one-third of all women can expect to suffer physical abuse at the hands of a man with whom they have had a relationship. Those who are strong enough to fight back are often faced with an inadequate response from police, prosecutors, and courts. To remedy this situation, several states and the District of Columbia have enacted laws mandating the arrest of men accused of abuse. The author of this note evaluates the role of mandatory arrest laws in the fight against domestic violence. She examines the circumstances that have led to the enactment of these laws and analyzes possible challenges to mandatory arrest. She also examines the strengths and weaknesses of the various mandatory arrest laws currently in force. Finally, she concludes that mandatory arrest can be very effective if it is part of a comprehensive response to domestic violence by the criminal justice system.
Crimes by Health Care Providers
Pamela H. Bucy | 1996 U. Ill. L. Rev.
In recent years, health care fraud has attracted considerable national attention and, perhaps, rightfully so. Recent figures indicate that fraud in the health care industry results in nearly $90 billion in losses a year. In addition to the obvious economic costs, health care fraud also has a negative impact on patients as well. By performing unnecessary medical procedures, falsifying medical documents, and engaging in illegal kickback arrangements, health care providers place their patients directly in harms way.
In this article, Professor Pamela H. Bucy addresses the issues surrounding crimes committed by health care providers and argues in favor of more aggressive prosecution of those who commit health care fraud. She begins by providing a comprehensive discussion of the federal and state statutes that the government has traditionally used to prosecute health care providers who commit fraud. Professor Bucy then addresses current legislative efforts to curb abuses in the health care system, and offers suggestions as to how these proposed laws may be effectively implemented to achieve their purpose. Professor Bucy concludes by proposing several additional reforms to federal and state criminal statutes, reforms which she believes are needed to combat health care crimes in the future.
* Bainbridge Professor of Law, University of Alabama School of Law. B.A. 1975, Austin College; J.D. 1978, Washington University. The author greatly appreciates the generous support of Dean Kenneth C. Randall and the University of Alabama Law School Foundation.
Barricading the Nuclear Window — A legal Regime to Curtail Nuclear Smuggling
Barry Kellman & David S. Gualtieri | 1996 U. Ill. L. Rev.
Nuclear smuggling is perceived widely to be a serious security threat. Seizures of bomb-quality material are becoming frequent, leading to concerns that even more material is passing unseen. This article undertakes to formulate and organize legal responses to that threat. First, modalities of international arms control should be employed to reduce the availability of nuclear materials to smugglers, substantially increasing the cost of pursuing a clandestine weapons program and raising the chance of revealing their criminal plot. Second modalities of international criminal law enforcement should be employed to investigate, apprehend, and prosecute those who engage in illicit weapons activities. The colossal quantity of nuclear material, the widespread awareness of weapons design, and the propagation of global criminal networks, together, manifest a need for a comprehensive international response. This article offers nineteen recommendations for an integrated legal regime in which arms control and criminal law enforcement--two previously unrelated branches of international law--can be implemented explicitly for maximum efficacy.
* Professor, DePaul University College of Law. B.A. 1973, University of Chicago; J.D. 1976, Yale.
** Consultant, Argonne National Laboratory. B.A. 1989, University of Michigan; J.D. 1992, DePaul University; LL.M. 1996, Harvard.
Defectiveness Restated: Exploding the "Strict" Products Liability Myth
David G. Owen | 1996 U. Ill. L. Rev.
Strict liability in tort has occupied the core of modern products liability doctrine ever since Dean Prosser first penned the most often cited Restatement section in history--section 402A of the Second Restatement of Torts. In the Third Restatement, the ALI has completely restructured the definition of product defectiveness. The inscrutable phrase that has confounded courts and commentators for so many years--"defective condition unreasonably dangerous"--is now trifurcated according to the separate types of product defects: manufacturing defects, design defects, and warnings defects.
In this important article, David Owen explores the conceptual developments that led to the restated liability formulations and provides much needed clarification of the "defectiveness" concept for courts and practitioners alike. The Third Restatement's redefinition of liability for manufacturing defects in terms of departure from intended design restates the law in a manner that faithfully reflects how courts have handled cases of this type. Yet the new Restatement's definitions of defectiveness in design and warnings cases are structurally awkward and unduly complex, a condition which promises to continue the kind of confusion that has plagued the application of section 402A in the courts. In order to clarify the fundamental tests of product defect, the complicated definitions of the Third Restatement are first decoded, in order to reveal their essential concepts, and they are then reformulated into simple and straightforward liability tests that courts and juries can comprehend. In this manner, the Third Restatement's standards are translated into a form that should be of both practical and theoretical use in resolving the central liability issues in modern products liability litigation.
A reworking of the definitions of product defect requires an exploration into the nature of "strict" liability in the various products liability contexts. While true strict liability has been adopted for manufacturing defects, a reasonableness standard, which includes the notions of optimality and balance, in fact prevails in the design and warning contexts. Professor Owen argues persuasively that the reasonableness standard properly applied by courts in design and warnings cases is simply negligence, wrapped in a strict liability shroud, and that courts might profitably dispense with the myth that responsibility in these contexts is strict and embrace instead both the language and doctrine of the negligence standard they truly use.
* Byrnes Scholar and Professor of Tort Law, University of South Carolina. B.S. (Wharton) 1967; J.D. 1971, University of Pennsylvania. Member, ALI Consultative Group for the Restatement (Third) of Torts: Products Liability.
David C. Baum Memorial Lecture: Hate Speech: Affirmation or Contradiction of Freedom of Expression
Kathleen E. Mahoney | 1996 U. Ill. L. Rev.
In this essay, originally delivered as a David C. Baum Memorial Lecture on Civil Liberties and Civil Rights at the University of Illinois College of Law, Professor Mahoney begins by examining the traditional rationales underlying broad protection of the freedom of speech. She then undertakes a critical analysis of these rationales. Professor Mahoney argues that concern for other rights and freedoms provides a basis for government restrictions on "hate speech" in at least some circumstances. She concludes that the psychological harm that hate speech often inflicts on its victims justifies some governmental restrictions. In particular, when the value and importance of the "speech" does not outweigh the "harm" that it causes, limits on the freedom of speech are necessary and appropriate.
* Professor of Law, University of Calgary. LL.B. 1976, University of British Columbia; LL.M. 1979, University of Cambridge.
This essay originally was presented on November 4, 1995, as the first 1995-96 lecture of the David C. Baum Memorial Lectures on Civil Liberties and Civil Rights at the University of Illinois College of Law.
Title IX and Intercollegiate Athletics: When Schools Cut Men's Athletic Teams
Charles P. Beveridge | 1996 U. Ill. L. Rev.
After Congress enacted Title IX in 1972, colleges and universities began to offer comparable facilities and programs to women interested in intercollegiate athletics. Women's athletic participation more than doubled in the fifteen years following the enactment of Title IX. Beginning in the 1990s, however, colleges and universities have faced serious budget constraints that have forced them to cut athletic funding. In the face of Title IX requirements prohibiting discrimination in school athletic programs, many schools have chosen to eliminate men's sports programs while sparing women's sports programs. Although most lower courts have supported athletic departments which have made such choices, the author contends that such an approach conflicts with Congress' intent when it enacted Title IX and violates Supreme Court precedent regarding equal protection. The author argues that courts should interpret Title IX in a manner that focuses on whether opportunities available to female athletes in a given college or university reflect the proportion of female students willing and able to participate in intercollegiate athletics. This interpretive approach would more fully accommodate the interests of both men and women, while simultaneously satisfying the requirements of the Equal Protection Clause.
"Roast Pigs" and Miller-Light: Variable Obscenity in the Nineties
Marion D. Hefner | 1996 U. Ill. L. Rev.
Although the text of the First Amendment appears to prevent any speech regulation, the Supreme Court has fashioned several exceptions--including obscenity--to the First Amendment's broad protection of speech that permit states to regulate categories of speech to promote compelling governmental interests. Traditionally, lower courts have analyzed regulations that restrict minors' access to sexually explicit materal within the rubric of the obscenity doctrine. This analytical framework has permitted lower courts to strike much of the minors' access regulation that states propose. The author contends, however, that the Supreme Court's already existing framework for obscenity regulation permits courts to uphold more restrictive minors' access regulations. States should be permitted to regulate minors' access to harmful material without having to satisfy traditional standards of obscenity. The author proposes model statutory language that would permit states to do just that while withstanding judicial scrutiny within current constitutional requirements.
Brownfields of Dreams"?: Challenges and Limits of Voluntary Cleanup Programs and Incentives
Joel B. Eisen | 1996 U. Ill. L. Rev.
As one of the most important current topics in environmental law, the redevelopment of abandoned or underutilized urban properties, better known as brownfields, continues to generate much discussion and debate. Because most agree that abandoned sites located in aging areas and the accompanying exodus of industry to the suburbs are undesirable, the federal government and many state governments have created programs to encourage the redevelopment of these industrial properties. But often overlooked by the advocates of such programs are the difficult political, scientific, and moral questions associated with redevelopment.
In this insightful article, Professor Eisen provides the most comprehensive discussion to date of brownfield programs that often exchange increased health risks to the surrounding community for additional jobs and higher tax revenue. He then draws an analogy between brownfield redevelopment programs and negotiated compensation statutes, which were created to facilitate the siting of hazardous and solid waste disposal facilities but have experienced only limited success. Finally, after exposing the shortcomings of the current brownfield programs through this analogy, Professor Eisen concludes that adequate community input and a revision of CERCLA are but two of the many changes that must be made in order to increase the public legitimacy of brownfield redevelopment programs.
* Assistant Professor of Law and Director, Robert R. Merhige, Jr. Center of Environmental Law, University of Richmond School of Law. B.S. 1981, Massachusetts Institute of Technology; J.D. 1985, Stanford Law School.
I would like to thank Professor Jim Krier of the University of Michigan Law School; Hon. Don Ritter, Greg Planicka, and Joe Schilling of the National Environmental Policy Institute; and my colleagues, Michael Allan Wolf, W. Wade Berryhill, and Greg Sergienko for their invaluable assistance and comments on earlier drafts of this article. I would also like to acknowledge the Law School for its generous financial support of my research and thank student research assistants Kristine Dalaker, Raelenne Jensen, and Bethany Lukitsch for their help, and students Karen Bleattler, Stacie Craddock, Brennen Keene, Camille Sabbakhan, and Andrea Wortzel for providing useful information. Last, but certainly not least, I would like to thank my editor for life, Tamar Schwartz Eisen.
Information on state voluntary cleanup programs in this article is based on interviews by the author with state voluntary cleanup program administrators and on results of a survey sent to program administrators; program information is believed to be current as of July 1, 1996.
Bankruptcy, Tithing, and the Pocket-Picking Paradigm of Free Exercise
Daniel Keating | 1996 U. Ill. L. Rev.
Writing from the perspective of both a bankruptcy professor and a tithing Christian, Professor Keating makes several astute observations about the intersection of bankruptcy law, tithing, and the Free Exercise Clause. First, he argues that allowing debtors to continue tithing in bankruptcy essentially "picks the pockets" of their creditors, constituting a more significant infringement on the rights of third parties than the Supreme Court has permitted in any other context. Second, Professor Keating challenges the argument that disallowing tithing by bankrupt debtors is a form of religious discrimination, tackling the sticky question of why the law allows bankrupt parties to gamble away their money but not to give it to their churches. Finally, Professor Keating takes exception to scripturally based arguments in favor of tithing made by some bankrupt debtors, pointing out that the Bible also condemns failure to repay one's debts as a significant sin.
* Associate Dean and Professor of Law, Washington University. B.A. 1983, Monmouth College; J.D. 1986, University of Chicago. I would like to thank the following individuals for comments on an earlier draft of this essay: Michael Alderson, Susan Appleton, Greg Barton, Stuart Banner, Douglass Boshkoff, Dorsey D. Ellis, Jr., Christopher Frost, Jules Gerard, Margaret Howard, David Lander, Douglas Laycock, Steve Legomsky, Peter Letsou, Ronald Levin, Lynn LoPucki, Ronald Mann, Curtis Milhaupt, Nancy Rapoport, Robert Rasmussen, Charles Tabb, Robert B. Thompson, George Triantis, Jay Westbrook, and James J. White.
The Intersection of State Corporation Law and Employee Compensation Programs: Is It Curtains for Veil Piercing?
Dana M. Muir & Cindy A. Schipani | 1996 U. Ill. L. Rev.
As the oldest members of the baby boom generation enter their fifties and begin thinking seriously about retirement, legal issues relating to the security of retirement income are likely to grow in number and importance. In this article, Professors Muir and Schipani address a unique problem that may arise from the intersection of the doctrine of limited liability for corporate shareholders and the Employee Retirement Income Security Act of 1974 (ERISA), the federal statute that regulates privately sponsored retirement benefits programs. Under some circumstances, limited liability may have the effect of shielding culpable shareholders of closely held corporations from liability for ERISA violations. Plan participants may then have to resort to the primarily state-law doctrine of "piercing the corporate veil" in order to recoup their damages. However, ERISA contains a sweeping preemption clause which may prevent aggrieved plan participants from resorting to state-law doctrine. Whether and to what extent ERISA's preemption clause has this effect on corporate veil piercing is the focus of this article. Professors Muir and Schipani begin with an overview of both ERISA and the doctrine of corporate veil piercing in the state-law context. The authors then explain the various ways in which veil piercing may be applied in federal law contexts, particularly with respect to ERISA. The question of whether ERISA's preemption clause prevents use of veil piercing in ERISA cases is then considered in light of the recent U.S. Supreme Court decision in Peacock v. Thomas, which at first glance seems to stand for this proposition. Professors Muir and Schipani conclude, however, that allowing veil piercing under certain circumstances is not only permissible under ERISA, but consistent with the goals of the preemption clause.
* Assistant Professor, University of Michigan. A.B. 1978, University of Michigan; M.B.A. 1980, University of Detroit; J.D. 1990, University of Michigan.
** Louis and Myrtle Moskowitz Research Professor and Visiting Professor of Law, University of Michigan. B.A. 1979, Michigan State University; J.D. 1982, University of Chicago.
David C. Baum Memorial Lecture: The Jurisprudence of Thurgood Marshall
Mark V. Tushnet | 1996 U. Ill. L. Rev.
In this essay, originally presented as a David C. Baum Memorial Lecture on Civil Liberties and Civil Rights at the University of Illinois College of Law, Professor Mark Tushnet explores the character and contributions of the late Thurgood Marshall, Associate Justice of the United States Supreme Court. Professor Tushnet presents a view of Justice Marshall as a true lawyer-statesman, whose professionalism and respect for legal rules were shaped by his middle-class roots and by his years as a litigator for the civil rights movement. The essay demonstrates that these qualities, together with a sense of pragmatism and social activism, are visible in the positions taken by Justice Marshall during his years on the Supreme Court.
* Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center. This article is adapted from Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991 (forthcoming February 1997). Professor Tushnet served as a law clerk to Justice Marshall during the Supreme Court's 1972 Term.
This article was originally presented on February 29, 1996, as the second 1995-96 lecture of the David C. Baum Memorial Lectures on Civil Liberties and Civil Rights at the University of Illinois College of Law.
Trading Secrets in the Information Age: Can Trade Secret Law Survive the Internet?
Bruce T. Atkins | 1996 U. Ill. L. Rev.
Trade secrets are in danger. As it stands today, trade secret law is struggling with the problem of the Internet and losing. With a few keystrokes, a disgruntled employee of a business can send a multimillion dollar trade secret into cyberspace, making it available to the twenty million users who surf the Net. Current trade secret law is ill equipped to handle this problem, either to prevent or to compensate for it. This note suggests the development of a limited privacy right in trade secrets in order to prevent the extinction of trade secret law in the Information Age.
The Courts, Daubert, and Willingness-to-Pay: The Doubtful Future of Hedonic Damages Testimony Under the Federal Rules of Evidence
Joseph A. Kuiper | 1996 U. Ill. L. Rev.
The Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. has altered the approach to the admissibility of scientific evidence in the federal courts. Presumably, this change will affect state courts as well, as they abandon the Frye general acceptance standard and adopt the Daubert approach. Testimony regarding the theory of hedonic damages, which purports to calculate the monetary value of the loss of enjoyment of life, is frequently proferred by plaintiffs' attorneys in federal civil rights suits and in state-law wrongful death and personal injury actions. The author applies the Daubert analysis to hedonic damages theory and concludes that it does not meet the standard set out by the Supreme Court. In addition to anticipating the manner in which the courts will deal with hedonic damages evidence under Daubert, this note stands for the broader proposition that novel scientific theories, at least those emerging from "soft" sciences such as economics, will face stiff resistance indeed in courts applying the Daubert standard.
In Search of Common Ground: Leveling the Playing Field for Chemically Dependent Workers Under the Americans with Disabilities Act of 1990
Kenneth J. Vanko | 1996 U. Ill. L. Rev.
The Americans with Disabilities Act of 1990 (ADA) protects employees suffering from disabling conditions by requiring their employers to provide them with reasonable accommodations. One of the more controversial provisions of the ADA involves the protection extended to alcoholic and chemically dependent workers. Although the Act protects both current and recovering alcoholics, it extends coverage only to recovering drug abusers, while neglecting workers suffering from current drug addiction. The author of this note contends that the distinction between current alcoholics and current drug abusers undermines the purposes of the ADA. The author first examines the ADA's predecessor, the Rehabilitation Act of 1973, and recent ADA case law to illustrate how the distinction has arisen. Next, he details the typical analysis undertaken by a court hearing a chemically dependent worker's ADA claim. Finally, he formulates a test to be applied to ADA cases involving chemically dependent workers--a test more faithful to the purposes of the ADA--and poses suggestions for further reform.